Thusly Terms of Service
Last updated on December 4, 2018.
Thusly, Inc., a Delaware corporation (“Thusly”), makes available the websites located at thusly.co, and tag.works, including all subdomains (the “Site”), and related software and mobile applications (the “Software”) and academic research services (together with the Site and Software, collectively, the “Services”). Access to and use of the Services, as well as any Services provided by Thusly are governed by this Terms of Service (this “Agreement”).
If you are an individual providing contributions to the Services, such as annotating text or answering questions about text, (a “Contributor”) or are otherwise browsing the Site, this Agreement is between you, individually, and Thusly.
If you are an employee, faculty member or student of a university, school or other entity or organization that has subscribed to the Services (an “Enterprise Subscriber”), you are a “Researcher” of your Enterprise Subscriber and (i) you represent that you have your Enterprise Subscriber’s permission and authority to use the Services and your Enterprise Subscriber’s “User Content” (as defined below) subject to this Agreement, (ii) this Agreement is an agreement between you, individually, and Thusly, and (iii) your Enterprise Subscriber is jointly responsible for your use of the Services.
If you are entering into this Agreement on behalf of an Enterprise Subscriber, you represent that you have the authority to bind the Enterprise Subscriber to this Agreement. If you do not have such authority, you must not accept this Agreement and may not use the Services.
This Agreement contains an Arbitration Agreement, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration. Under the Arbitration Agreement, (1) you will only be permitted to pursue claims against Thusly on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding, (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis, and (3) you are waiving your right to a jury trial and your right to have your claims decided by a judge or jury.
If you are a Contributor: In consideration of your use of the Services, Thusly grants you a personal, limited, non-exclusive, non-sublicensable, non-transferable, revocable license to access and use the Services solely for purposes of providing your contributions.
If you are an Enterprise Subscriber: In consideration of your acceptance of this Agreement and your payment of all applicable Fees (as defined below), Thusly grants you a limited, non-exclusive, non-sublicensable, non-transferable, revocable license to access and make use of the Services solely for your research purposes. In addition, you may permit such number of Researchers as has been agreed between you and Thusly to access and make use of the Services.
If you are a Researcher: In consideration of your acceptance of this Agreement and your Enterprise Subscriber’s payment of all applicable Fees (as defined below), Thusly grants you a personal, limited, non-exclusive, non-sublicensable, non-transferable, revocable license to access and make use of the Services solely for the research purposes of your Enterprise Subscriber.
You may access and use the Services only in accordance with any instruction manuals, user guides and other documentation as made available by Thusly from time to time (“Documentation”).
IF YOU ARE AN ENTERPRISE SUBSCRIBER, UNLESS OTHERWISE SPECIFIED BETWEEN YOU AND THUSLY, YOUR RESEARCHERS MAY NOT UPLOAD MORE THAN 5 GIGABYTES PER TAGWORKS LICENSE. If you are a contributor, unless otherwise specified between you and Thusly, you may not circumvent the upload limits per item and in aggregate that may be set by the service.
In addition, you may not:
(a) copy, modify or create derivative works based on the Services or Documentation, or any portion(s) of any of the foregoing (individually and collectively, “Thusly IP”);
(b) distribute, transmit, publish or otherwise disseminate any Thusly IP;
(c) download or store any Thusly IP except to the extent explicitly permitted by Thusly (except to the extent that an Enterprise Subscriber may permit such number of Researchers as has been agreed between the Enterprise Subscriber and Thusly to access and make use of the Services);
(d) transfer to any third party any of your rights under this Agreement;
(e) access or use the Services or Thusly IP for the benefit of any third party (except to the extent that Researchers may access and make use of the Services or Thusly IP solely for the research purposes of their Enterprise Subscriber) ;
(f) access content or data not intended for you, log onto a server or account that you are not authorized to access, or otherwise violate or attempt to violate any security or authentication feature or measures of the Services;
(g) attempt to access or derive the source code or architecture of any Services;
(h) attempt to probe, scan or test the vulnerability of the Services, or any associated system or network, or to breach any security or authentication feature or measures of the Services, and if you are blocked by Thusly from accessing the Services (including by blocking your IP address), you will not implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address);
(i) interfere or attempt to interfere with service to any user, host or network, including, without limitation, by means of submitting malicious software or computer code (“Malicious Code”) to the Services, load testing, overloading, “flooding,” “spamming,” “mail bombing,” “crashing,”;
(j) email or otherwise transmit any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains any Malicious Code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person or entity; (v) constitutes unsolicited or unauthorized materials; or (vi) is otherwise objectionable;
(k) automate access to the Services, including, without limitation, through the use of APIs, bots, scrapers or other similar devices;
(l) export or re-export any Thusly IP;
(m) use or access any Services or Thusly IP in order to build a competitive product, service or solution;
(n) violate any applicable law or regulations in connection with your use of the Services;
(o) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity, including, without limitation, an Enterprise Subscriber; or
(p) permit any third party to do any of the foregoing.
Thusly may offer certain Software, including certain interfaces, for download from the Site (“Ancillary Software”). Subject to the other terms and conditions of this Agreement, you may install and use Ancillary Software on computers owned, leased or otherwise controlled by you, solely for your personal use in conjunction with your authorized use of the Services. Upon expiration or termination of this Agreement for any reason, you shall cease any further use of the Ancillary Software and shall promptly destroy all copies thereof in your possession.
Certain Services or Software (including Ancillary Software) may be subject to additional limitations, restrictions, terms and/or conditions specific to such Services or Software (“Specific Terms”). In such cases, the applicable Specific Terms will be made available to you and your access to and use of the relevant Services or Software will be contingent upon your acceptance of and compliance with such Specific Terms.
Certain Services or Software (including Ancillary Software) may contain or otherwise make use of software, code or related materials from third parties, including “open source” or “freeware” software (“Third Party Components”). Certain Third Party Components may be subject to separate license terms that accompany such Third Party Components that, to the extent they conflict with the terms of this Agreement, supersede the terms of this Agreement. If required by any license for a particular Third Party Component, Thusly makes the source code of such Third Party Component and any of Thusly’s modifications to such Third Party of such Third Party Component, and any of Thusly’s modifications to such Third Party Component, as required, available upon written request to Thusly.
Registration and Security
By completing the registration process for any given Services, you are agreeing to subscribe to the selected Services, subject to the terms and conditions of this Agreement. You agree to provide Thusly with accurate and complete registration information, and to promptly notify Thusly in the event of any changes to any such information.
You shall be solely responsible for the security and proper use of all user IDs, passwords or other security devices used in connection with the Services, and shall take all reasonable steps to ensure that they are kept confidential and secure, are used properly and are not disclosed to or used by any other person or entity. You shall immediately inform Thusly if there is any reason to believe that a user ID, password or any other security device issued by Thusly has or is likely to become known to someone not authorized to use it, or is being or is likely to be used in an unauthorized way. Thusly reserves the right (at its sole discretion) to request that you change your password(s) in connection with the Services, and you shall promptly comply with any such request.
You are solely responsible for all activity in connection with access to the Services through your account or using your password, and for the security of your computer systems, and in no event shall Thusly be liable for any loss or damages relating to such activity.
If you are a Contributor, you are solely responsible for your use of the Service. You are also responsible for ensuring that you comply with all of the terms and conditions of this Agreement.
Enterprise Subscriber Responsibility for Researchers
This section titled “Enterprise Subscriber Responsibility for Researchers” applies only to Enterprise Subscribers. Enterprise Subscribers shall ensure that the total number of Researchers does not exceed the maximum number of seats authorized by and purchased from Thusly (each of which seats represents a unique (named) Researcher). Enterprise Subscribers may assign different Researchers to the seats authorized by and purchased from Thusly, so long as the total number of Researchers at any time does not exceed the maximum number of seats authorized by and purchased from Thusly, but Researchers may not transfer (including by way of sublicense, lease, assignment or other transfer, including by operation of law) their seat, user name or right to use the Services to any third party. If you are an Enterprise Subscriber, you and each of your Researchers are jointly responsible for each such Researchers use the Services. You are also responsible for ensuring that all of your Researchers comply with all of the terms and conditions of this Agreement. Any violation of the terms and/or conditions of this Agreement by any of your Researchers shall be deemed to be a violation thereof by you.
Enterprise Subscriber Fees
This section titled “Enterprise Subscriber Fees” applies only to Enterprise Subscribers. Enterprise Subscriber access to or use of the Services and/or Software shall be contingent upon payment of all applicable fees as described on the Site or in an applicable purchase order at the time (“Fees”); unless you are a Researcher, in which case your access to or use of the Services and/or Software shall be contingent upon your Enterprise Subscriber’s payment of the Fees.
Thusly reserves the right to revise its Fees, including by increasing or adding new Fees, at any time on ten (10) days’ notice. Such notice may be sent to you by email to your most recently provided email address or posted on the Site or by any other manner chosen by Thusly in its commercially reasonable discretion. You will be deemed to have received any such notice that is posted on the Site on the day it was posted. Your use of the Services after the ten (10) day notice period constitutes your acceptance of the new or revised Fees. If you do not agree to the revised Fees, you may cancel your subscription by following the “View cancellation instructions” link below.
Unless you are a Contributor, to ensure uninterrupted service, all subscriptions to the are renewed automatically. You hereby authorize Thusly to charge subscription Fees for the renewal period to the credit card or PayPal™ account on file. All subscriptions are renewed at the subscription level(s) in effect at the time the then-current subscription term ends.
Termination of Agreement with Enterprise Subscriber
This section titled “Termination of Agreement with Enterprise Subscriber” applies only to Enterprise Subscribers.
Either Thusly or you may terminate this Agreement by notice if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after receipt of notice of the breach from the non-defaulting party. In addition, Thusly may suspend the Services upon notice if you fail to make any payment when due and fail to cure such breach within ten (10) days after receipt of notice of the breach from Thusly. Any such suspension or termination shall be without limitation of any other right or remedy available to the terminating party.
Thusly may terminate this Agreement for convenience upon sixty (60) days’ prior written notice without liability to you. Following a termination pursuant to the foregoing sentence, Thusly shall refund the pro rata portion of any Fees relating to the remaining term, as applicable.
Either Thusly or you may terminate this Agreement immediately upon notice to the other party if the other party has a receiver or similar party appointed for all or substantially all of its property, is declared insolvent by a court of competent jurisdiction, ceases to do business in the ordinary course, files a petition in bankruptcy or has a petition filed against it in bankruptcy, becomes the subject of any court or administrative proceeding related to its liquidation or insolvency (whether voluntary or involuntary) that is not dismissed within ninety (90) days, or makes an assignment for the benefit of its creditors.
If this Agreement is terminated or otherwise expires for any reason, you shall promptly return to Thusly or destroy, as directed by Thusly, all Confidential Information, Ancillary Software and other materials in your possession or under your control belonging to Thusly, and all rights and licenses granted by Thusly pursuant to this Agreement shall terminate. Upon the expiration or termination of this Agreement, your right to use and access the Services and Ancillary Software and any of its content will immediately cease and Thusly may elect in its discretion to terminate your Researchers’ accounts. Upon termination of your account and your written request, Thusly shall delete all User Content (as defined below) in your account(s), including all contributions to your content by Contributors, but Thusly shall retain ownership of and shall have the right to retain aggregated or statistical data or metadata related to any Contributor’s contributions made to your User Content.
All provisions of this Agreement that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, limitations of liability and miscellaneous provisions.
Termination of Agreement with Researcher or Contributor.
This section titled “Termination of Agreement with Researcher or Contributor” applies only to Researchers and Contributors.
If you are a Researcher of an Enterprise Subscriber, and this Agreement or the applicable agreement for Services and Software is terminated in relation to such Enterprise Subscriber, or if you otherwise lose access to the Services and Software via your Enterprise Subscriber (e.g., if you are no longer affiliated with that Enterprise Subscriber or are no longer employed by that Enterprise Subscriber), Thusly may elect in its discretion to terminate your account or downgrade your account to an individual subscriber account. In addition, your Enterprise Subscriber may elect in its discretion and at any time to revoke your Researcher status and terminate your account.
If you are a Contributor contributing to a Researcher or Enterprise Subscriber’s project, and this Agreement or the applicable agreement for Services and Software is terminated in relation to such Researcher or Enterprise Subscriber, you may continue to access all of the Services unless you or Thusly elects to terminate your account.
Thusly may deny you access to all or any part of the Services or terminate your account with or without prior notice if you engage in any conduct or activities that Thusly determines, in its sole discretion, violate this Agreement or the rights of Thusly or any third party, or is otherwise inappropriate. Without limitation, Thusly may deny you access to the Services, or terminate this Agreement and your account, if your use of the Services exceeds the 30-day and 24-hour use limitations set forth under the section titled “License.”
Upon termination of your account(s) for any reason, your right to use the Services and Software and to access the Services and any of its content will immediately cease. Thusly shall retain ownership of and shall have the right to retain any aggregated or statistical data or metadata related to any of your contributions made under your account.
All provisions of this Agreement that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, limitations of liability and miscellaneous provisions.
Access to Services
You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to or access or otherwise use the Services, including, without limitation, modems, hardware, software, internet service and telecommunications capacity. You shall be solely responsible for ensuring that such equipment and ancillary services are compatible with the Services and Software.
The Services may include products and services that are available via a mobile device, including (i) the ability to upload content to the Services via a mobile device, (ii) the ability to browse the Services from a mobile device, and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that Thusly may communicate with you regarding Thusly and other entities by electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your account information to ensure that your messages are not sent to the person that acquires your mobile telephone number.
You are solely responsible for all text, documents or other content or information uploaded, entered or otherwise transmitted by you in connection with your use of the Services and/or Software (“User Content”). User Content includes, among other things, any mistakes contained in the content or information transmitted by you. User Content does not include any underlying aggregated or statistical data or metadata related to your User Content. Thusly has no obligation to monitor any User Content and shall have no liability to you or any other person or entity with respect thereto, including, without limitation, liability with respect to any information (including your confidential information) contained in or apparent from any User Content. You warrant, represent and covenant that you own or have a valid and enforceable license to use all User Content, and that no User Content infringes, misappropriates or violates the rights (including, without limitation, any copyrights or other intellectual property rights) of any person or entity or any applicable law, rule or regulation of any government authority of competent jurisdiction. Thusly is not responsible for the loss, corruption or other changes to User Content. Without limiting the foregoing, any feature(s) of the Services and/or Software that may permit you to temporarily save or otherwise store User Content is offered for your convenience only and Thusly does not guarantee that the User Content will be retrievable. You are solely responsible for saving, storing and otherwise maintaining User Content including by maintaining backup copies of your User Content on appropriate independent systems that do not rely on the Services and/or Software.
By uploading or entering any User Content, you give Thusly (and those it works with) a nonexclusive, worldwide, royalty-free and fully-paid, transferable and sublicensable, perpetual, and irrevocable license to copy, store and use your User Content (and, if you are an Researcher, your Enterprise Subscriber’s User Content) in connection with the provision of the Software and the Services and to improve the algorithms underlying the Software and the Services.
Changes to Services or Terms
Thusly reserves the right at any time to (i) change any information, specifications, features or functions of the Services, (ii) suspend or discontinue, temporarily or permanently, any or all of the Services, including the availability of any feature, database or content, or (iii) impose limits on certain features and Services or restrict access to parts or all of the Services, in each case with or without prior notice and without any liability to you or any third party. Thusly will use its commercially reasonable efforts to notify you of changes to the Services and/or Software that, in Thusly’s reasonable opinion, have the effect of materially and adversely diminishing the functionality of the Services to which you have subscribed.
Thusly may from time to time update or revise this Agreement. If Thusly updates or revises this Agreement, Thusly will notify you either by email to your most recently provided email address, by posting the updated or revised Terms of Service on the Site or by any other manner chosen by Thusly in its commercially reasonable discretion. Your use of the Services following any such update or revision constitutes your agreement to be bound by and comply with this Agreement as updated or revised. You can view the most current Terms of Service at tag.works/terms-of-service. It is your responsibility to review this Agreement periodically.
If you cancel your subscription within ten (10) days following such notice by Thusly in accordance with the two preceding paragraphs, then Thusly will refund you a pro-rated portion of any pre-paid Fees for the affected Services applicable to the cancelled portion of the pre-paid subscription term, if any.
Links to third party sites
Any links on the Site to third party websites are provided for your convenience only. If you choose to access third party websites or obtain products or services from third parties, you do so entirely at your own risk and such access is between you and such third party. Thusly does not warrant or make any representation regarding the legality, accuracy or authenticity of content presented by such websites or any products or services offered by third parties and shall have no liability for any loss or damages arising from the access or use of such websites, products or services.
Consent to receive email
a. For users located outside of the European Economic Area (EEA):
Your registration to use the Services constitutes your consent to receive email communications from Thusly, including messages regarding customer service issues and other matters. You may opt not to receive email correspondence, other than technical notifications and email regarding issues related to your account and your use of the Services, at any time by following the link included in the email messages.
b. For users located in the European Economic Area (EEA):
We only send marketing communications to users located in the European Economic Area (EEA) with your prior consent, and you may withdraw your consent at any time by clicking the “unsubscribe” link found within Thusly emails and changing your contact preferences. Please note you will continue to receive transactional messages related to our Services, even if you unsubscribe from marketing emails.
c. Data collection and privacy
In addition, Thusly may engage third parties to conduct risk control and fraud detection/prevention activities. As part of such engagements, if you initiate a transaction through the Services, Thusly may give such third parties access to your pertinent credit card and other personal information. Such third parties may only use such personal information for purposes of performing risk control and fraud detection/prevention activities for us. However, they may also convert such personal information into hashed or encoded representations of such information to be used for statistical and/or fraud prevention purposes. By initiating any such transaction, you hereby consent to the foregoing disclosure and use of your information.
All intellectual property rights in and to the User Content are and shall remain your property, and Thusly shall acquire no right of ownership with respect to your User Content. Thusly will own the aggregate or statistical data and other metadata related to your use of the Services hereunder. For avoidance of doubt, you hereby assign any aggregate or statistical data and other metadata related to your use of the Services to Thusly.
All intellectual property rights in and to the Services and other Thusly IP are and shall remain the sole property of Thusly and its affiliates and licensors, as applicable, and you shall acquire no right of ownership or use with respect to any Software or other Thusly IP except as specified in this Agreement. Without limiting the foregoing, you acknowledge that the Software and the Service and the inventions, know-how and methodology embodied therein are proprietary to, and contain valuable trade secrets of, Thusly and its affiliates and licensors, as applicable, and that the Software constitutes Confidential Information of Thusly. You may from time to time provide Thusly with suggestions, comments, recommendations, improvements, solutions, bug fixes, features, concepts, techniques, ideas, know-how and/or any feedback regarding the Services and/or any of Thusly’s related technologies (“Feedback”). Any and all Feedback is and shall be given entirely voluntarily. As between the you, Thusly and, if applicable, your Enterprise Subscriber, all Feedback shall be exclusively owned by Thusly, and you hereby make all assignments necessary to accomplish the foregoing ownership, and as a result Thusly shall be freely entitled to reproduce, prepare derivative works, disclose to third parties, display and perform (publicly or otherwise), sell, lease, license, distribute and otherwise use and exploit any and all such Feedback as it deems appropriate, at its sole discretion, without obligation or liability of any kind to you, your Enterprise Subscriber (if applicable) or any other person or entity.
Thusly respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Thusly of your infringement claim in accordance with the procedure set forth below.
Thusly will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Thusly’s Copyright Agent at email@example.com (Subject line: “DMCA Takedown Request”). You may also contact us by mail or facsimile at:
Attn: Thusly Privacy, P.O. Box 3498
Oakland, CA 94609
(510) 343-5403 fax
To be effective, the notification must be in writing and contain the following information:
· an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
· a description of the copyrighted work or other intellectual property that you claim has been infringed;
· a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service;
· your address, telephone number, and email address;
· a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
· a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
your physical or electronic signature;
identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within Northern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Thusly will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
e. Repeat Infringer Policy
In accordance with the DMCA and other applicable law, Thusly has adopted a policy of terminating, in appropriate circumstances and at Thusly's sole discretion, users who are deemed to be repeat infringers. Thusly may also at its sole discretion limit access to the Service and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
You shall indemnify, release and hold harmless Thusly and its parents, subsidiaries, affiliates, licensors and suppliers, and each of their respective officers, directors, employees and agents, from and against any loss, liability (including settlements, judgments, fines and penalties) and costs (including reasonable attorney fees, court costs and other litigation expenses) relating to any claim or demand made by any third party due to or arising out of your access or use of the Services, violation of this Agreement, or infringement of any intellectual property or other right of any person or entity. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
You agree that you are solely responsible for your interactions with any other user in connection with the Services, and Thusly will have no liability or responsibility with respect thereto. Thusly reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THUSLY, ITS LICENSORS AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, REGARDING THE SERVICES OR ANY ANCILLARY SOFTWARE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, OR REGARDING SECURITY, QUIET ENJOYMENT, RELIABILITY, TIMELINESS AND PERFORMANCE. YOU AGREE THAT YOUR USE OF THE SERVICES ARE AT YOUR OWN SOLE RISK AND THAT THE SERVICES AND ANY ANCILLARY SOFTWARE ARE PROVIDED ON AN “AS IS,” “WHERE IS,” “AS AVAILABLE,” “WITH ALL FAULTS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, THUSLY AND ITS LICENSORS AND ITS SUPPLIERS DO NOT WARRANT THAT THE OPERATION OF THE SERVICES AND/OR ANCILLARY SOFTWARE WILL MEET YOUR REQUIREMENTS OR WILL BE UNINTERRUPTED OR ERROR-FREE.
Limitation of Liability
IN NO EVENT SHALL THUSLY BE LIABLE WITH RESPECT TO THE SERVICES OR ANCILLARY SOFTWARE FOR (I) ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE GREATER OF (A) THE FEES YOU HAVE ACTUALLY PAID TO THUSLY DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO SUCH LIABILITY AND (B) ONE HUNDRED DOLLARS ($100); (II) ANY LOST PROFITS, LOST OR DAMAGED USER CONTENT OR OTHER DATA, OR FAILURE TO MEET ANY DUTY, INCLUDING WITHOUT LIMITATION GOOD FAITH AND REASONABLE CARE; OR (III) ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER.
YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THUSLY AND YOU. YOU UNDERSTAND THAT THE SERVICES AND ANCILLARY SOFTWARE WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
CERTAIN STATES DO NOT ALLOW THE LIMITATION OF CERTAIN DAMAGES, SO SOME OR ALL OF THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “WARRANTY DISCLAIMERS” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
Dispute Resolution By Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
f. Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in this Agreement as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Thusly, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and Thusly are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
g. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND THUSLY AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND THUSLY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY o FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
h. Pre-Arbitration Dispute Resolution
Thusly is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at firstname.lastname@example.org. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Thusly should be sent to Thusly Inc. P.O. Box 3498 Oakland, CA 94609 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Thusly and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Thusly may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Thusly or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Thusly is entitled.
i. Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Thusly and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Thusly agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
j. Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Thusly will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Thusly will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Thusly will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Agreement will continue to apply.
m. Future Changes to Arbitration Agreement
Notwithstanding any provision in this Agreement to the contrary, Thusly agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Thusly written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement).
This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without regard to any choice of law, conflicts of law or other principles that would result in the applicable of the laws or regulations of any other jurisdiction. Subject to the section titled “Dispute Resolution By Binding Arbitration”, any legal action or proceeding relating to this Agreement shall be instituted in a state or federal court in San Francisco County, California. You and Thusly agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding.
This Agreement and the rights and obligations herein are personal to you, and you may not assign or otherwise transfer this Agreement or any of your rights or obligations hereunder, by operation of law or otherwise, without the prior written consent of Thusly. Thusly may freely assign this Agreement, including, without limitation, in connection with a merger, acquisition, bankruptcy, reorganization, or sale of some or all of our assets or stock.
If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall be unimpaired and shall remain in full force and effect, and the invalid, illegal or unenforceable provision(s) shall be replaced by a valid, legal and enforceable provision or provisions that comes closest to the intent of the parties underlying the invalid, illegal or unenforceable provision(s).
The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.
If Thusly is unable to perform any obligation under this Agreement because of any matter beyond its reasonable control, such as lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes (whether or not involving employees of Thusly), acts of local or central government or other competent authorities, problems with telecommunications providers, hostile network attacks or other events beyond Thusly’s reasonable control (each, a “Force Majeure Event”), Thusly will have no liability to you for such failure to perform; provided, however, that Thusly shall resume performance promptly upon removal of the circumstances constituting the Force Majeure Event. If any Force Majeure Event continues for more than sixty (60) days, either Thusly or you may terminate this Agreement by delivery of written notice to the other party. You will remain responsible for all Fees incurred through the last day the Services were available.
If you and Thusly have executed a separate written agreement applicable to your access to and use of the Services, other than a purchase order referencing this Agreement, then the terms and conditions of such separate written agreement shall prevail to the extent of any conflict with the terms and conditions of this Agreement. In all other cases, this Agreement constitutes the entire agreement between Thusly and you with respect to its subject matter, and supersedes all prior communications and proposals, whether electronic, oral or written, between Thusly and you. No waiver or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of each party.
n. Notice for California users
Under California Civil Code Section 1789.3, users of the Services from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact Thusly at:
P.O. Box 3498
Oakland, CA 94609