Trolion, Inc. ("TLI", "we", "us" and "our") welcomes you to our internet web sites www.trolion.com and www.rush49.com and the Rush49 mobile application (collectively, including all content and functionality available through our web sites, domain names and mobile applications, the "TLI Platform" or "Platform").
1. Description of the Platform
Our Platform allows merchants and service providers ("Merchants") to market their goods and services ("Products") via discounts and special offers (collectively "Deals") to the general public ("Consumers", "you"). It is composed various content, screens and designs (collectively "Platform Content") as well as shopping and purchase modules ("Consumer Modules") which are used collectively to browse and purchase exclusive deals from the Merchant who use our Platform. Additionally, third party information regarding Merchants and Products that may include reviews, ratings and other publicly available data may be provided via the Platform to assist you in making an informed decision on the purchase of Products. Finally, our Platform contains various community areas where Consumers can enter their own opinions and ratings regarding Merchants and Deals ("User Content").
This Agreement authorizes your use of the Platform to find Deals that are interest to you and to purchase those Deals from the Merchants, as well as authorizing you to submit User Content relating to your experiences with the Merchants and their Products and Platform. By creating an Account, you agree that you understand and agree to be bound by the terms and conditions contained herein. If you do not agree to the terms and conditions, do not register for an Account, or if already registered, delete your Account immediately and do not continue to use the Platform.
2. Modification of this Agreement
We may modify this Agreement and any Platform Content at any time without prior notice and such changes shall be effective immediately upon posting to the Platform. We will inform you via email of any changes to this Agreement, and your continued use of the Platform after such changes indicates your acceptance of any and all changes. We may also terminate this Agreement at any time, with or without notice, at our sole discretion, for any reason or no reason at all.
3. Ownership of the Platform
The Platform and all infrastructure, software and technology used to provide it (collectively, the "Property") are proprietary to TLI, its Merchants and/or other partners and is protected by intellectual property laws. Your access to the Platform is licensed and not sold. Subject to the terms of this Agreement and upon your registration for an Account, we hereby grant you a revocable, non-exclusive, non-transferable account enabling you to access and use the Platform.
Except for the limited licenses expressly granted herein, we expressly reserve all right, title and interest in and to the Platform, our content, and the Property, including, without limitation, any derivatives, improvements, enhancements or extensions of the Property conceived, reduced to practice or otherwise developed on or on behalf of TLI. All content on the Platform, including text, graphics, logos, icons, images, and video clips, is the exclusive property of TLI, Merchants, partners or other content suppliers and is protected by U.S. and international copyright laws. The compilation (meaning the collection, arrangement, and assembly) of all content on the Platform is the exclusive property of TLI and is also protected by U.S. and international copyright laws. The content on the Platform may be used as a resource. Any other use, including the reproduction, modification, distribution, transmission, republication, display, or performance, of the content on the Platform is strictly prohibited. Furthermore, you will not, nor will you allow or direct any third party (whether or not for your benefit), to reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast, circulate or use any content on the Platform without the express prior written consent of TLI.
4. Creating a Rush49 Account
You may only create and hold one Account that you are solely responsible for managing. Your Account is non-transferrable and may not be sold, combined or otherwise shared with any other person. If you violate any of these limitations we reserve the right to terminate your Account at any time and you will forfeit any pending, current or future promotional account credits and any unredeemed vouchers in your Account.
You expressly agree: (i) that we have the right to suspend and/or terminate your account and refuse any and all current or further use of the Platform if we determine, in our sole discretion, that any information you provide is untrue, inaccurate, not current and/or incomplete; (ii) to protect your username and password at all times; (iii) to notify us immediately of any unauthorized use of your account or any other need to deactivate your username and/or password due to security concerns; and (iv) that we shall not be responsible for unauthorized access to or alteration of your data. We are not liable for any harm caused or related to the theft or misappropriation of your username and/or password, disclosure or your username and/or password, or your authorization of anyone else to use your username and/or password. From time to time, we may find it necessary to access your account. In such event, we will, if possible, provide you notice of our intent to use your username and password to do so. Regardless of whether such notice is provided, you acknowledge and consent to such access. Furthermore, recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside and to comply with any other local laws affecting the transmission or posting of content or affecting the privacy of persons.
5. User Conduct on the Platform
You shall not: (i) use, or allow the use of, the Platform, except pursuant to the limited rights expressly granted in this Agreement; (ii) attempt to reverse engineer, hack into, or compromise any aspect of the Property, or attempt to access data of any other customer of TLI; (iii) use, reproduce, modify or create derivative works of the Property; (iv) remove, obscure or alter any legal notices, including notices of intellectual property rights appearing in or on any materials delivered to you by TLI; (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Platform; (vi) reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion or use of, or access to, the Platform; or (vii) transfer, lease, lend, sublicense, use for timesharing or service bureau purposes, resell or otherwise distribute or allow third party access to all or any portion of the Property, including, but not limited to, sharing your access username and/or password.
We reserve the right to suspend or revoke the Account of any user at any time without explanation. In using the Platform, you agree that we have the right to view and inspect, in their entirety, all user activity and purchase history for the purposes of ensuring compliance with our terms and conditions as well as to comply with legal obligations, regulations or governmental requests.
6. User Content; Proprietary Rights
Any User Content which you upload or post on the Platform is considered to be non-confidential.
By uploading User Content on the Platform, you hereby grant to us a non-exclusive, perpetual, fully paid and royalty free, worldwide license to use, copy, create derivative works, adapt, display, reproduce, transmit and distribute such User Content at our discretion and without notice, in all media now known and or hereafter devised for the purpose of either promoting TLI, you, the Platform or the Merchants.
You are solely responsible for User Content you upload on the Platform. You warrant, represent and agree that you will not contribute any User Content or otherwise use the Platform in a manner that (i) infringes the intellectual property rights or proprietary rights, or rights of publicity or privacy, of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) you should know is harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) adversely affects or reflects negatively on our goodwill, name or reputation or causes duress, distress or discomfort to you or anyone else, or discourages any person, firm or enterprise from using all or any portion, feature, or function of the Platform, or from advertising, liking or becoming a supplier to use in connection with the Platform; (v) send or result in the transmission or junk e-mail, chain letters, duplicative or unsolicited messages, or so-called "spamming"; (vi) transmit, distribute or upload programs or material that contain malicious code, such as viruses, timebombs, cancelbots, worms, trojan horse, spyware, or other potentially harmful programs or other material or information; (vii) falsely report to an employee or agent of TLI; (viii) circumvent, disable or otherwise interfere with security-related features of the our website or its features that prevent or restrict use or copying of any content; (ix) intercept or attempt to intercept email or other private communications not intended for you; and/or (x) causes the Platform to be used for commercial or business purposes, including, without limitation, advertising, marketing, or offering goods or services, whether or not for financial or any other form of compensation or through linking with any other website or web pages. While it is not our intent to discourage you from reporting problems about the Platform, nonetheless, we reserve the right to take such action as it deems appropriate and/or to remove any content from the Platform at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such content or if we are concerned that you may have breached the immediately preceding sentence), or for any reason at all.
7. Third Party Content
8. Cookies Policy
What are cookies
Cookies are small pieces of text sent to your web browser by a website you visit. A cookie file is stored in your web browser and allows the Service or a third-party to recognize you and make your next visit easier and the Service more useful to you.
Cookies can be "persistent" or "session" cookies. Persistent cookies remain on your personal computer or mobile device when you go offline, while session cookies are deleted as soon as you close your web browser.
When you use and access the Service, we may place a number of cookies files in your web browser.
We use both session and persistent cookies on the Service and we use different types of cookies to run the Service:
In addition to our own cookies, we may also use various third-parties cookies to report usage statistics of the Service, deliver advertisements on and through the Service, and so on.
What are your choices regarding cookies
Please note, however, that if you delete cookies or refuse to accept them, you might not be able to use all of the features we offer, you may not be able to store your preferences, and some of our pages might not display properly.
Where can you find more information about cookies
You can learn more about cookies and the following third-party websites:
9. Terms of Sale
You understand and accept that we are a service that offers Deals on behalf of our Merchants and that all Deals must ultimately be redeemed for the corresponding Products and Platform directly from the selling Merchants or others authorized to redeem the Deals on their behalf. The terms of all Deals are clearly specified in conjunction with that Deal and form the basis for your ability to redeem that Deal. In using the Platform and purchasing Deals, you agree to carefully read the terms specific to each Deal before purchasing and attempting to redeem any Deal. For example, calendar-based restrictions may be included in these terms such as specific days of the week or times during the day when Deals may be redeemed.
10. Actual Value of Deals
All Deals sold at the Platform consist of two separate values: The actual price paid by you for the Deal ("Purchase Value") and an additional value that represents the savings you will get off the regular price for the Product or Service offered in the Deal ("Deal Value"). The Purchase Value never expires and may always be redeemed for the product or service included in that Deal. The Deal Value, however, will expire on the Expiration Date associated with that Deal unless prohibited by law.
11. Deal Redemption Options
All Deals you have purchased are stored in your Account until such time as you redeem that Deal or get a refund of the Purchase Value. You will always be able to access your active Deals via the Rush49 web site or the Rush49 mobile app.
Deals may be redeemed in a number of ways depending on whether you and/or the Merchant has an active and connected mobile device with the Rush49 app at the time of redemption:
· If you have an active mobile device that supports the Rush49 app, you may redeem all Deals directly from the app, subject to availability of mobile connectivity to our servers at the time of redemption.
· If you do not have an active mobile device with the Rush49 app, it will be necessary for you to bring either a printout of the Deal generated by the Rush49.com web site or the unique Deal ID Number that you can find on either the Rush49 app or web site with the Deal details.
There are also a number of methods by which Merchants may be notified that you have redeemed a Deal, including but not limited to a Rush49 Merchant app, the Rush49 Merchant website, FAX or text message. While we cannot guarantee which method each Merchant will use to receive notification of your Deal redemption, all Merchants have agreed to have at least one of the above methods in place at all times to facilitate your ability to redeem the deal you have purchased.
Due to the fact that we cannot guarantee the ability of your mobile device to connect to our Platform in every location due to factors beyond our control, redemption of any Deal cannot be guaranteed unless you have a printed copy of the Deal Invoice or the Deal ID Number with you at the time of redemption.
12. Expired Deals
You acknowledge that if the expiration date of any Voucher you have purchased has passed, Merchants may only honor the Voucher for the Purchase Value, or, at their discretion, they may accept the Voucher for the full value indicated (Purchase Value plus Deal Value).
This Rush49 Refund Policy is effective for all deals and RushPasses (including events and activities**) purchased on 11/01/2011 and thereafter.
If any charge for any ticket is charged back by the customer there will be a $35 charge back fee along with a 50% collection fee if assigned for collection.
Cancellation Insurance: Purchase of cancellation insurance entitles purchaser to a full refund on unused tickets for the amount charged at the time of transaction based on the following conditions: 1) Refund must be requested within 180 days of the purchase; 2) Person requesting refund must be the person who made the purchase; 3) In the case of events (concerts, festivals, shows, etc.) where the voucher is valid for a specific date or range of dates, the refund request must come at least 24 hours before the event begins (for multi-day events, this means 24 hours before the first day of the event).
Lastly, please note that Rush49 reserves the right to uphold its expressed all-sales-are-final/no-refunds policy with only the following conditional exceptions:
If the experience you have purchased is not available, due to cancellation or closures related to COVID restrictions, you are eligible for a full refund or exchange up to one year from your purchase date.
If we receive word that a participating merchant/event organizer cancels the experience/reservation/activity you paid for, Rush49 will gladly issue you a refund.
Likewise, if we are notified that a participating merchant/event organizer has to reschedule the experience/reservation/activity you paid for, you will have the option to either attend the rescheduled date or Rush49 will gladly issue you a refund.
If you purchase a Rush49 Gift Voucher and the recipient does not use/redeem the voucher, contact us within 90 days of purchase, and we will gladly offer you a Rush49 account credit for the full purchase price you paid. Please send us an email to email@example.com with your request.
Coronavirus Disease 2019 (COVID-19)
As the coronavirus situation evolves, the safety of our customers is paramount. We're working hard to do everything we can to be prepared and address your concerns.
Due to increasing event postponements and cancellations amid COVID-19, please allow 7-10 business days to process order related inquiries. For customers opting to take a website credit over a refund for a cancelled event due to COVID-19, we will credit the amount paid plus an additional 20% to your Rush49 account. This credit does not expire and can be used toward most deal on our site. Please send us an email at firstname.lastname@example.org to begin processing of your request.
Unless stated otherwise in the deal, if, for whatever reason, within 24 hours, you purchased Vouchers/RushPasses for an activity or event that has not yet transpired and that you would like to request a refund for, please send us an email at email@example.com with your request and we will issue you a refund (less any service or processing fees where applicable) if your total purchase amount for that transaction is less than $500.00. [*please note that under no circumstances will Rush49 issue refunds for events that have successfully concluded, irrespective of time or date of purchase.]
If you are unable to redeem a voucher prior to its expiration date due to a refusal of the Merchant to honor it when you have followed the terms of the deal, a lack of the product or service offered, or their inability, for any reason, to deliver the Product or Service you purchased, you have the option to request a refund in the full amount of the Purchase Value. If requested within sixty (60) days from the time of purchase, the refund will be credited to the payment method used at the time of purchase. If requested after sixty (60) days, the purchase amount will be credited as Rush49 Account Credit applied to your Rush49 Account and may be used towards the purchase of any of the deals on our site.
On *select* deals and events, Rush49 charges a non-refundable service and convenience fee to offset our considerable out-of-pocket costs associated with bringing these unique and special events & experiences to our marketplace. Sometimes these fees offset "pay-to-play" costs associated with paying the organizer or merchant to retail the deal on Rush49.com; sometimes they offset permitting or licensing fees related to the event or activity; sometimes they offset additional deal production costs. In many instances, those deals that do have built-in processing fees would never be able to make it to (Rush49's) market if those fees were not charged. In any case, although you purchase itself may warrant a refund, these convenience fees are non-refundable under any circumstances.
Refunds may take up to five to ten (10) business days to process. When requesting a refund, please email your request--along with your name, voucher number and reason for the refund--to ,firstname.lastname@example.org. Please remember to allow up to five (5) business days to process your request and up to seven (7) business days for the transaction to be reflected on your payment provider's (credit card, debit card, PayPal, etc.) statements due to the inherent delay associated with online banking protocols.
We always want you to enjoy your Rush49 experience; if you have trouble redeeming your voucher for any reason, please contact us at support@rush49 so we can work with the Merchant to resolve your issue.
14. Contest, Sweepstakes and Lottery
No purchase is necessary to enter or win. A purchase does not increase the chances of winning.
Campaigns are open only to those who enter via the rules slated per contest, sweepstake or lottery and as noted in the materials and who are 18 (eighteen) years of age as of the date of entry. Campaigns are only open to legal residents of the United States and are void where prohibited by law. Employees of Rush49, its affiliates, subsidiaries, advertising and promotion agencies, and suppliers, (collectively the "Employees"), and immediate family members and/or those living in the same household of Employees are not eligible to participate in the Campaigns. The Campaigns are subject to all applicable federal, state, and local laws and regulations. Void where prohibited.
By participating, the Contestant ("You") agree to be fully unconditionally bound by these Rules, and You represent and warrant that You meet the eligibility requirements. In addition, You agree to accept the decisions of Rush49 as final and binding as it relates to the content of all Campaigns.
Campaigns must be entered by submitting an entry via the instructions in the campaign materials, which may include but is not limited to direct mailers, emails, social media posts, campaign landing pages, SMS messages, etc.. The entry must fulfill all Campaign requirements, as specified, to be eligible to win a prize. Entries that are incomplete or do not adhere to the rules or specifications may be disqualified at the sole discretion of Rush49.
The Winner(s) of the Campaign (the "Winner") will receive the prizes based on each contest, sweepstakes or lottery. Prizes may change per contest, sweepstakes or lottery and a list of all contest, sweepstakes and lotteries with corresponding prizes can be requested by mailing an official request to the address listed below under "Winners List". Actual/appraised value may differ at time of prize award. The specifics of the prize shall be solely determined by Rush49. No cash or other prize substitution shall be permitted except at Rush49's discretion. The prize is nontransferable. Any and all prize-related expenses, including without limitation any and all federal, state, and/or local taxes, shall be the sole responsibility of Winner. No substitution of prize or transfer/assignment of prize to others or request for the cash equivalent by Winner is permitted. Acceptance of prize constitutes permission for Rush49 to use Winner's name, likeness, and entry for purposes of advertising and trade without further compensation unless prohibited by law.
The odds of winning depend on the number of eligible entries received.
Winner will be selected by a random drawing under the supervision of Rush49. Winner will be notified within five (5) days following selection of Winner. Rush49 shall have no liability for Winner's failure to receive notices due to spam, junk e-mail, or other security settings or for Winner's provision of incorrect or otherwise non-functioning contact information. If Winner cannot be contacted, is ineligible, fails to claim the prize within 5 days from the time award notification was sent, or fails to timely return a completed and executed declaration and release as required, the prize may be forfeited and an alternate Winner selected. Receipt by Winner of the prize offered in Campaigns is conditioned upon compliance with any and all federal, state, and local laws and regulations. ANY VIOLATION OF THESE OFFICIAL RULES BY WINNER (AT RUSH49'S SOLE DISCRETION) WILL RESULT IN WINNER'S DISQUALIFICATION AS WINNER OF THE CAMPAIGN, AND ALL PRIVILEGES AS WINNER WILL BE IMMEDIATELY TERMINATED.
By entering this content (e.g., photo, video, text, etc.), You understand and agree that Rush49, anyone acting on behalf of Rush49, and Rush49's licensees, successors, and assigns, shall have the right, where permitted by law, to print, publish, broadcast, distribute, and use in any media now known or hereafter developed, in perpetuity and throughout the World, without limitation, your entry, name, portrait, picture, voice, likeness, image, statements about the Campaign, and biographical information for news, publicity, information, trade, advertising, public relations, and promotional purposes. without any further compensation, notice, review, or consent. Optional verbiage for Contests: By entering this content, You represent and warrant that your entry is an original work of authorship, and does not violate any third party's proprietary or intellectual property rights. If your entry infringes upon the intellectual property right of another, You will be disqualified at the sole discretion of Rush49. If the content of your entry is claimed to constitute infringement of any proprietary or intellectual proprietary rights of any third party, You shall, at your sole expense, defend or settle against such claims. You shall indemnify, defend, and hold harmless Rush49 from and against any suit, proceeding, claims, liability, loss, damage, costs or expense, which Rush49 may incur, suffer, or be required to pay arising out of such infringement or suspected infringement of any third party's right.
Rush49 reserves the right, in its sole discretion, to cancel, terminate, modify or suspend the Campaign should virus, bug, non-authorized human intervention, fraud, or other cause beyond Rush49's control corrupt or affect the administration, security, fairness, or proper conduct of the Campaign. In such case, Rush49 may select the Winner from all eligible entries received prior to and/or after (if appropriate) the action taken by Rush49. Rush49 reserves the right, in its sole discretion, to disqualify any individual who tampers or attempts to tamper with the entry process or the operation of the Campaign or website or violates these Terms & Conditions. Rush49 has the right, in its sole discretion, to maintain the integrity of the Campaign, to void votes for any reason, including, but not limited to: multiple entries from the same user from different IP addresses; multiple entries from the same computer in excess of that allowed by Campaign rules; or the use of bots, macros, scripts, or other technical means for entering. Any attempt by an entrant to deliberately damage any website or undermine the legitimate operation of the Campaign may be a violation of criminal and civil laws. Should such an attempt be made, Rush49 reserves the right to seek damages to the fullest extent permitted by law.
By entering, You agree to release and hold harmless Rush49 and its subsidiaries, affiliates, advertising and promotion agencies, partners, representatives, agents, successors, assigns, employees, officers, and directors from any liability, illness, injury, death, loss, litigation, claim, or damage that may occur, directly or indirectly, whether caused by negligence or not, from: (i) such entrant's participation in the Campaign and/or his/her acceptance, possession, use, or misuse of any prize or any portion thereof; (ii) technical failures of any kind, including but not limited to the malfunction of any computer, cable, network, hardware, or software, or other mechanical equipment; (iii) the unavailability or inaccessibility of any transmissions, telephone, or Internet service; (iv) unauthorized human intervention in any part of the entry process or the Promotion; (v) electronic or human error in the administration of the Promotion or the processing of entries.
ALL CONTESTS, SWEEPSTAKES, AND LOTTERIES ARE GOVERNED BY THE LAWS OF THE UNITED STATES OF AMERICA AND CALIFORNIA STATES, WITHOUT RESPECT TO CONFLICT OF LAW DOCTRINES. As a condition of participating in this Campaign, participant agrees that any and all disputes that cannot be resolved between the parties, and causes of action arising out of or connected with this Campaign, shall be resolved individually, without resort to any form of class action, exclusively before a court located in California having jurisdiction. Further, in any such dispute, under no circumstances shall participant be permitted to obtain awards for, and hereby waives all rights to, punitive, incidental, or consequential damages, including reasonable attorney's fees, other than participant's actual out-of-pocket expenses (i.e. costs associated with entering this Campaign). Participant further waives all rights to have damages multiplied or increased.
To obtain a copy of the Winner's name or a copy of these Official Rules, mail your request along with a stamped, self-addressed envelope to: 14560 Valley Vista Blvd. Sherman Oaks, CA 91403.
15. Other Services
As a holder of a User Account, we may offer you other services that are currently or will in the future be included in the Platform. These additional services, including but not limited to Reservation Modules, Preferred Deal Notifications and other services offered directly by us to you shall be detailed in separate documents and agreements, including costs and other terms if applicable. Your use of any additional service outside not specifically covered by this agreement is at your own discretion.
16. Third Party Websites
The Platform contains links to other websites maintained by other parties. These links are provided solely as a convenience to you and not because we endorse or have an opinion about the contents on such websites. We expressly disclaim any representations regarding the content or accuracy of materials on such websites or the privacy practices of those websites. If you decide to access websites maintained by other parties, you do so at your own risk.
The entire contents of the Platform are copyrighted as a collective work under the laws of United States and other copyright laws. We hold the copyright in the collective work. You may display and, subject to any expressly stated restrictions or limitations relating to specific material, download portions of the material from the different areas of the Platform solely for your own non-commercial use, unless otherwise permitted. Any redistribution, re-transmission or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner. You agree not to change or delete any proprietary notices from materials downloaded from TLI. You may not use any TLI logo or any other proprietary graphic or trademark without our express written permission.
18. Copyright and Digital Millennium Copyright Act Policy
We respect the intellectual property rights of others and reserve the right to terminate your Account if you or any other User infringes third-party copyrights. You can notify us of possible copyright infringement, and we will review all claims of copyright infringement received and remove content deemed to have been posted or distributed in violation of any such laws. To make a claim, please provide the following:
(i) A physical or an electronic signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest that is allegedly infringed;
(ii) A description of the copyrighted work or other intellectual property that you claim has been infringed;
(iii) A description of where the material that you claim is infringing is located on the Platform reasonably sufficient to permit us to locate the material;
(iv) Your contact information, including your address, telephone number, and email;
(v) A statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement by you that the above information in your notice is accurate and that you, made under penalty of perjury, are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Contact the agent designated to receive and act on copyright violations under the Digital Millennium Copyright Act ("DMCA"). Claims can be sent to email@example.com or Trolion, Inc. 6733 S. Sepulveda Blvd, Suite 138, Los Angeles, CA 90045.
19. Privacy Rights
20. Disclaimer of Warranties
We do not represent or warrant that (a) the Platform will be error-free or accessible at all times, (b) defects will be corrected, (c) the Platform or the server that makes it available, are free of viruses or other harmful component, or (d) the use or the results of the use of the Platform or the materials made available as part of the Platform will be correct, accurate, timely, or otherwise reliable. We do not guarantee, and shall have no liability for, any Platform down time (i) caused by outages to any public Internet backbones, networks or servers, (ii) caused by any failures of your equipment, systems or local access services, (iii) for previously scheduled maintenance, or (iv) relating to events beyond our control such as, but not limited to, strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where TLI or your servers are located or co-located.
THE INFORMATION AND CONTENT ON THE OUR PLATFORM IS PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS WITHOUT WARRANTY, EXPRESS OR IMPLIED. YOU AGREE THAT USE OF THE PLATFORM IS AT YOUR SOLE RISK. WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY EXPRESS WARRANTIES, STATUTORY WARRANTIES, AND ANY IMPLIED WARRANTIES OF: MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND NON-INFRINGEMENT. YOU FURTHER AGREE THAT WE SHALL NOT BE LIABLE FOR ANY THIRD PARTY USE OF YOUR UPLOADED MERCHANT CONTENT NOR SHALL WE BE LIABLE FOR OUR PUBLICATION OR YOUR VIEWING OF, EXPOSURE TO, OR ANY ACCESS TO ANY CONTENT OR MATERIAL CONTAINED ANYWHERE ON THE PLATFORM. THIS DISCLAIMER OF WARRANTIES CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. TO THE EXTENT YOUR JURISDICTION DOES NOT ALLOW LIMITATIONS ON WARRANTIES, THIS DISCLAIMER MAY NOT APPLY TO YOU AND YOUR SOLE AND EXCLUSIVE REMEDY RELATING TO YOUR USE OF THE PLATFORM SHALL BE TO DISCONTINUE USING THE PLATFORM.
21. Limitation of Liability
YOU AGREE THAT UNDER NO CIRCUMSTANCES WILL WE OR ANY OF OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGRENTS OR AFFILIATES BE LIABLE OR RESPONSIBLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING WITHOUT LIMITATION DAMAGES FROM LOSS OF BUSINESS, LOST PROFITS, LOST DATA COLLECTED ON THE PLATFORM OR THE LIKE), SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES, BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION OR OTHERWISE UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN ANY WAY RELATING TO THE PLATFORM, YOUR PLATFORM USE, OR THE CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN THE FOLLOWING PARAGRAPH.
SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTIAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY TO YOU. OUR CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE FEES PAID TO US RELATED TO YOUR USE OF THE PLATFORM. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE PLATFORM AND/OR CONTENT IS TO CEASE ALL OF YOUR PLATFORM USE.
ALL DISPUTES, CONTROVERSIES, OR CLAIMS ARISING OUT OF OR RELATING TO THIS CONTRACT SHALL BE SUBMITTED AND RESOLVED EXCLUSIVELY BY FINAL AND BINDING ARBITRATION IN ACCORDANCE WITH THE APPLICABLE RULES OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA") THEN IN EFFECT AND CONDUCTED BEFORE A SINGLE ARBITRATOR PURSUANT TO THE APPLICABLE RULES AND PROCEDURES ESTABLISHED BY THE AAA ("RULES AND PROCEDURES").
You agree further that: (a) the arbitration shall be held at a location determined by AAA pursuant to the Rules and Procedures (provided that such location is reasonably convenient for you), or at such other location as may be mutually agreed upon by you and TLI; (b) the arbitrator shall apply California law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (c) there shall be no authority for any claims to be arbitrated on a class or representative basis; arbitration can decide only your and/or our individual claims; and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (d) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (e) with the exception of subpart (c) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein.
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS US, OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INFORMATION PROVIDERS AND SUPPLIERS FROM AND AGAINST ALL LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEY'S FEES, RESULTING FROM ANY VIOLATION OF THIS AGREEMENT OR ANY ACTIVITY RELATED TO YOUR ACCOUNT (INCLUDING INFRINGEMENT OF THIRD PARTIES' WORLDWIDE INTELLECTUAL PROPERTY RIGHTS OR NEGLIGENT OR WRONGFUL CONDUCT) BY YOU OR ANY OTHER PERSON ACCESSING THE PLATFORM USING YOUR SERVICE ACCOUNT.
We may terminate this User Agreement at any time. Without limiting the foregoing, we shall have the right to immediately terminate or suspend any of your passwords or accounts in the event we consider, in our sole discretion, any of your conduct to be unacceptable, or in the event you breach this Agreement. Notwithstanding the above, the terms of the User Agreement will survive termination.
25. Governing Law
You agree that the laws of the State of California, without regard to conflicts of law provisions will govern this Agreement and any dispute that may arise between you and TLI, its officers, directors, employees, agents or affiliates.
Any cause of action or claim you may have with respect to TLI must be commenced within one (1) year after the claim or cause of action arises. Our failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver. This Agreement constitutes the complete and exclusive statement of the agreement between the parties with respect to the Service and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the Service. If any action in law or in equity is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants, and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled. The provisions of this Agreement are severable, and in the event any provision hereof is determined to be invalid or unenforceable, such invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions hereof. No provisions of this Agreement are intended, nor will be interpreted, to provide or create any third party beneficiary rights or any other rights of any kind in any user, client, customer, affiliate, or any party hereto or any other person unless specifically provided otherwise herein, and except as so provided, all provisions hereof will be personal solely between the parties to this Agreement. We may assign our rights and duties under this Agreement to any party at any time without notice to you.
We may deliver notice to you under this Agreement by means of electronic mail, a general notice on the Platform or by written communication delivered by first class U.S. mail to your address on record in our account information. You may give notice to us at any time via electronic mail to the following address: firstname.lastname@example.org ATTN: Member Service.