These Terms of Service (this “Agreement”) is a legal
agreement between you (“you” or “your”)
and Fairing, Inc. (“Fairing”) for use of the Fairing
website located at https://app.fairing.co, the servers used by the App
and/or website, the files stored on such servers, and all related services,
and all related services, features and content offered by Fairing in
connection with its surveying and consumer insights solution (collectively,
the “Service(s)”) described in a mutually agreed upon
ordering document and/or the online subscription process through your
Shopify account (each an “Order”). Fairing and you may
each be referred to as a “Party” or collectively referred
to as the “Parties”.
These Terms Set Forth a Legally Binding
Agreement
By using/continuing to use our Services, you acknowledge you have read and
understand and agree to be bound by the Agreement, including those
additional terms and conditions and policies referenced herein and/or
available by hyperlink. If you do not agree to all the terms and conditions
of this Agreement, then you may not access or use the Services. If this
Agreement is considered an offer, acceptance is expressly limited to this
Agreement.
Please refer to our Privacy Policy for information about how we collect,
use, store, and disclose your personal information (“Privacy
Policy”).
1. The Agreement
This Agreement prevails over any of your general terms and conditions
regardless of whether or when you have submitted your request for proposal,
order, or such terms. Provision of Services to you does not constitute
acceptance of any of your terms and conditions and does not serve to modify
or amend this Agreement. In the event of any conflict between the terms of
this Agreement and the terms of any Order hereunder, the terms of the Order
shall govern.
2. User Account; Account Security
2.1. Account Registration.
You are required to create an account in order to use the Services
(“Account”), which can be done by completing the
registration process in the Services. You agree that all information
provided by you is accurate, full, complete, and up to date at all times.
Any registration is solely for you and you may only use one single Account.
You may not use the Accounts of others, or allow others to use your
Account, and you are solely responsible for preventing such unauthorized
use of your Account.
2.2. Consent to Receive Electronic
Communications. By creating an Account, you consent to
receive electronic communications from Fairing (e.g., via email).These
communications may include notices about your Account (e.g., password
changes and other transactional information) and are part of your
relationship with us. You agree that any notices, agreements, disclosures,
or other communications that we send to you electronically will satisfy any
legal communication requirements, including, but not limited to, that such
communications be in writing. We may also send you promotional
communications via email, including, but not limited to, newsletters,
special offers, surveys, and other news and information we think will be of
interest to you. You may opt out of receiving these promotional emails at
any time by following the unsubscribe instructions provided therein.
2.3. Account Security. You
acknowledge that you shall be held solely responsible and solely liable for
anything that occurs in your Account and any activity resulting from your
Account. You agree that we rely on (as applicable) the user ID and password
protection format to confirm whether users accessing and using our Services
are authorized to do so. You are responsible for taking all reasonable
steps to ensure that no unauthorized person shall have access to your
Account. It is your sole responsibility to (i) control the dissemination
and use of user ID and password, and (ii) authorize, monitor, and control
access to and use of your Account and password. You shall notify us
immediately if you suspect or become aware that your Account is being used
without authorization or of any other breach of security. We strongly
recommend having a complex password, which should be kept secure at all
times. You are also encouraged to change your password regularly.
If you wish to cancel and remove your Account, you may (i) send us an
e-mail of your request to [email protected] or (ii) utilize the applicable
functionality in the Services. Your Account will terminate within
reasonable time following your request, and from that date of termination
you will no longer be able to access your Account.
2.4. User is Responsible for Equipment
and Software to Connect to the Services. You must provide all
equipment and software necessary to connect to the Services. You are solely
responsible for any fees, including Internet connection or mobile fees,
that you incur when accessing the Services.
2.5. Errors, Inaccuracies and
Omissions. Occasionally there may be information on the
Services that contains typographical errors, inaccuracies, or omissions
that may relate to the Services’ descriptions, information, materials,
pricing, promotions, and offers. We reserve the right, without prior
notice, to (i)correct any errors, inaccuracies, or omissions, and (ii)
change or update information or cancel Orders, if any information in the
Services or on any related website is inaccurate at any time (including
after you have submitted an order).
We undertake no obligation to update, amend, or clarify information in the
Services or on any related website, including without limitation, pricing
information, except as required by law. No specified update or refresh date
applied in the Services or on any related website, should be taken to
indicate that all information in the Services or on any related website has
been modified or updated.
3. Consent to Use of Information
3.1. Personal Information.
When creating an Account and using the Services, you will be asked to
provide certain personal information. By providing such personal
information, you agree to the terms of our Privacy Policy and expressly
consent to Fairing’s collection, storage, use, and disclosure of your
personal information in accordance with the Privacy Policy.
3.2. Your Data. You
acknowledge that Fairing may use any and all data or information submitted
or uploaded to Fairing by you or on behalf of you, or otherwise accessed to
Fairing in performance of its Services for you (collectively, “Your
Data”) to provide the Services. You hereby grant to Fairing and
its subcontractors, a perpetual, irrevocable, paid-up, royalty-free,
worldwide, non-exclusive right and license to copy, use, display, modify,
reproduce and make derivative works of Your Data during the term of this
Agreement and following the termination or expiration of this Agreement.
You are solely responsible for the nature, content, integrity and security
(including backup and recoverability) of all of Your Data. You represent,
warrant and covenant to have been effectively granted all necessary rights
(subject to applicable federal and state privacy laws and regulations)by
its customers, users and all affected third parties which are necessary for
the foregoing license grant.
3.3. Statistical
Information. We may derive and compile, either manually or
automatically, anonymized and aggregated data related to the performance,
operation, and use of the Services (“Statistical
Information”) including by you, and use such Statistical
Information for our business purposes, including for operations management,
for research and development, and for sharing with relevant parties. We own
the rights in and to such Statistical Information.
4. License Grant; Use Restrictions
4.1. License Grant.
Subject to your compliance with this Agreement, during the length of the
subscription set forth in an applicable Order (the “Subscription
Term”),Fairing grants you a limited worldwide, revocable,
non-exclusive, non-transferable, non-sublicensable right to use the
Services solely for the purposes set forth herein. Fairing reserves all
rights in and to the Services not expressly granted to you under this
Agreement.
4.2. Use Restrictions.
There is certain conduct which is strictly prohibited when using the
Services. Except as expressly permitted in this Agreement, you(i) may not
make available or use the Services for the benefit of any third party,
including, but not limited to, as a service bureau; (ii) may not sell,
resell, license, sublicense, transfer, distribute, make available, rent or
lease the Services, or exploit the Services for any commercial purposes;
(iii)may not use the Services to store or transmit any illegal, immoral,
unlawful, offensive, obscene and/or unauthorized materials or interfere
with or violate a third party’s rights to privacy and other rights, or
harvest or collect personally identifiable information about third parties
without their express consent; (iv) may not use the Services to transmit or
otherwise make available any malicious code, including any virus, worm,
trojan horse, time bomb, web bug, spyware, or any other computer code,
file, or program; (v) may not interfere with or disrupt the integrity,
performance, or operation of the Services or any part thereof; (vi) may not
attempt to gain unauthorized access or by pass any measures imposed to
prevent or restrict access to the Services; (vii) may not use or take any
direct or indirect action that imposes or circumvents any usage limits;
(viii) may not copy (except for making a reasonable number of copies for
backup or archival purposes), modify, distribute, create derivative works,
translate, port, reverse engineer, decompile, or disassemble any portion of
the Services, or any material that is subject to our proprietary rights or
use any of the foregoing to create any software or service similar to the
Services;(ix) may not use any information or materials of any user or other
third party appearing on or through the Services, without our prior written
consent; (x)may not misrepresent or impersonate any person or provide
inaccurate Account information; or (xi) use any robot, bot, spider,
crawler, scraper, site search/retrieval application, proxy or other manual
or automatic device, method or process to access, retrieve, index, “data
mine,” or in any way reproduce or circumvent the navigational structure or
presentation of the Services or its contents. Any breach of this Agreement
by you, as shall be determined in our sole discretion, may result in the
immediate suspension or termination of your Account.
5. Intellectual Property Rights
5.1. Intellectual Property
Ownership.
(i) All
content on the Services (including, for example, text, designs, graphics,
logos, icons, images, audio clips, downloads, interfaces, Information, code
and software, and the selection and manner of compilation and presentation)
(collectively, the “Content”), is owned by Fairing, our
content providers, or our licensors (as applicable), and may be protected
by copyright, trademark, and other applicable laws. Fairing, our content
providers, or our licensors (as applicable) retain full and complete title
to and reserve all rights in the Content on the Services, including all
associated intellectual property rights. Fairing neither warrants nor
represents that your use of Content on the Services will not infringe
rights of third parties.
(ii) You
may access the Services only for your permitted use under this Agreement,
and you may not modify or delete any copyright, trademark, or other
proprietary notice relating to any Content you access. Your access to and
use of the Services does not grant you any license or right to use any
trademark, logo, or service mark displayed on the Services. You agree not
to display or use in any manner the Fairing marks without Fairing's advance
written permission.
(iii) All
software used in connection with the Services is the property of Fairing or
our licensors and protected by United States and international copyright
laws, and subject to separate license terms, in which case those license
terms will govern such software. You agree not to reproduce, duplicate,
copy, sell, resell, or exploit any portion of the Services, use of the
Services or access to the Services, or any contact on the Services through
which the Services are provided, without express written permission by us.
(iv) All
rights not expressly granted herein are reserved by Fairing, our
affiliates, and licensors. You agree to abide by all additional
restrictions displayed on the Services, and as they may be updated from
time to time.
5.2. Feedback. By sending
us any feedback, comments, questions, ideas, proposals, or suggestions
concerning Fairing or the Services whether online, by email, by postal
mail, or otherwise (collectively, “Feedback”), you
represent and warrant (i) that you have the right to disclose the Feedback,
(ii) that the Feedback does not violate the rights of any other person or
entity, including, but not limited to, intellectual property rights, such
as infringing a copyright, trademark, or patent; violating a right of
privacy, attribution or withdrawal; or otherwise misappropriating a trade
secret, and (iii) that your Feedback does not contain the confidential or
proprietary information of any third party or parties. By sending us any
Feedback, you further (a) agree that we are under no obligation of
confidentiality, express or implied, with respect to the Feedback, (b)
acknowledge that we may have something similar to the Feedback already
under consideration or in development, and (c) grant us an irrevocable,
non-exclusive, royalty-free, perpetual, worldwide license, under all
intellectual property rights, to use, make, have made, incorporate into the
Services, modify, copy, display, perform, distribute, prepare derivative
works, publish, distribute, and sublicense the Feedback, without any credit
or compensation to you. This Feedback section shall survive any termination
of your Account or any aspect of the Services.
6. Third Party Services and
Websites
Certain information, content, products, and services available via the
Services may include materials from third-parties or provide you with
access to third-party tools, products, and resources over which we neither
monitor nor have any control nor input. Further, third-party links on
the Services may direct you to third-party websites that are not affiliated
with us. We are not responsible for examining or evaluating the content or
accuracy of any third-party materials or websites, or for any other
materials, products, or services of third parties. The views expressed in
third-party materials, websites, resources, products, or services are those
of such third-party, and do not necessarily reflect our views.
You acknowledge and agree that we provide access to such materials,
products, websites, tools, and resources “as is” and “as available” without
any warranties, representations, or conditions of any kind and without any
endorsement. We do not warrant and will not have any liability or
responsibility arising from or relating to third-party materials, websites,
tools, products, and resources. Any use by you of third-party materials,
tools ,products, services, and resources offered through the Services is
entirely at your own risk and discretion and you should ensure that you are
familiar with and approve of the terms on which such items are provided by
the relevant third-party provider(s).
We are not liable for any harm or damages related to the purchase or use of
goods, services, resources, content, or any other transactions made in
connection with any third-party websites. Please review carefully the
third-party's policies and practices and make sure you understand them
before you engage in any transaction. You may not use third-party content
without that third-party’s permission, or as otherwise allowed by law.
Complaints, claims, concerns, or questions regarding third-party products
or services should be directed to the applicable third-party.
7. Term; Termination
7.1. Term. The term of
this Agreement shall commence on the date you first use/access our Services
and shall continue until terminated by you or Fairing in accordance with
this Agreement and/or the applicable Order.
7.2. Termination. Either
Party may terminate this Agreement and/or the applicable Order, as of the
date specified in a notice of termination, if the other Party fails to
perform any of its material obligations under this Agreement and does not
cure such failure within thirty(30) days following receipt of a written
notice of such default. Either Party may terminate this Agreement if the
other Party becomes the subject of a petition in bankruptcy or any other
proceeding relating to insolvency, receivership, liquidation or assignment
for the benefit of creditors. Subject to Section 7.3 below, if you wish to
terminate this Agreement for convenience you may do so at any time for any
reason or without reason by ceasing use, deleting your Account and
uninstalling the Services.
7.3. Effect of
Termination. Upon the effective date of the termination of
this Agreement or any Order, you will immediately cease having access to
the Services, including any Services purchased during the term of an Order
or were unused during the term of the Order. Once cancellation of your
Account is confirmed, your information maybe deleted from the Services. We
do not accept any liability for such loss. Since deletion of all
information is final, please be sure that you do in fact want to cancel
your Account before doing so. Termination of your Account shall not relieve
you of your obligations to pay amounts accrued or owing, nor affect any
legal rights or obligations which may have arisen under the Agreement prior
to or at the date of termination. Without limiting the generality of the
foregoing, if (i) you terminate any Services, except as specifically
permitted for Fairing’s material breach, or (ii) Fairing terminates this
Agreement and/or any Order due to your material breach, any and all payment
obligations of you in connection with the Services shall become immediately
due and payable with respect to such Services.
7.4. Account Suspension.
We may terminate, limit, or suspend your access to all or any part of your
Account at any time, with or without cause, or with or without notice,
effective immediately, and such termination may result in the destruction
of all information and data associated with your use of the Services.
8. Payment
8.1. Fees; Billing. To
access the Services, you agree to pay usage charges and a recurring
monthly/yearly subscription (as applicable)
(“Subscription”) set forth in an Order. A description of
features associated with Subscriptions is available via the Services.
Failure to pay this Subscription will result in removal of your access to
the Services. Unless otherwise set forth in the applicable Order, the usage
charges for the Services will be billed in thirty (30)day intervals, and an
invoice will be sent via email from Shopify (if applicable). Additionally,
an invoice will appear on the account page of your Shopify admin console
(if applicable). Users have fourteen (14) days to bring up and settle any
issues with the billing.
8.2. Payment Processors.
Fairing uses third-party providers (i.e., Shopify and Stripe) to securely
store your payment card information and process your payments
(“Payment Processors”). You expressly authorize us or our
Payment Processors to charge you for each transaction. Our Payment
Processors may ask you to supply additional information relevant to your
transaction, including your credit card number, the expiration date of your
credit card, and your email and postal addresses for billing and
notification (such information, “Payment
Information”). You will provide all Payment Information directly
to our Payment Processors. You represent and warrant that you have the
legal right to use all payment method(s) represented by any such Payment
Information. When you initiate a transaction through the Services, you
authorize our Payment Processors to complete your transaction, and to
charge your payment method for the transaction (plus any applicable taxes
and other charges).By initiating a transaction, you agree to the pricing,
payment, and billing policies applicable to such fees and charges, as
posted or otherwise communicated to you. All fees and applicable taxes, if
any, are payable in United States dollars. You’ll receive a confirmation
email after we confirm the payment for your order. Your order is not
binding on Fairing until accepted and confirmed by Fairing. All payments
made are non-refundable and non-transferable except as expressly provided
in this Agreement.
8.3. Transaction Cancellation;
Verification. Fairing reserves the right to not processor to
cancel your transaction in certain circumstances, for example, if your
credit card is declined, if we suspect the request or transaction is
fraudulent, or in other circumstances Fairing deems appropriate in its sole
discretion. Fairing also reserves the right, in its sole discretion, to
take steps to verify your identity in connection with your transaction. You
may need to provide additional information to verify your identity before
completing your transaction (such information is included within the
definition of Payment Information). Fairing will either not charge you or
refund the charges for transactions that we do not process or cancel.
8.4. Fee Disputes. If you
have any concerns or objections regarding charges, you agree to raise them
with us first and you agree not to cancel or reject any credit card or
third-party payment processing charges unless you have made a reasonable
attempt at resolving the matter directly with Fairing.
8.5. Chargebacks. We may
institute a chargeback policy as we deem appropriate in the event that you
or your bank does not honor a payment obligation or if our Payment
Processors question our ability to collect funds from you. As part of such
chargeback policy, we may in our sole discretion suspend, terminate, or
otherwise limit your ability to use the Services or otherwise take any
action we or our Payment Processors deem necessary.
8.6. Changes to Price Terms for
Subscriptions. Fairing reserves the right to change its
pricing terms for using the Services at any time, upon thirty (30) days’
notice from Fairing in advance of such changes becoming effective. Such
notice may be provided at anytime by posting the changes to the Fairing
website (Fairing.co), email, or the administration menu of your Shopify
store via an announcement. Changes to the pricing terms will not apply
retroactively and will only apply for Subscription renewals after such
changed pricing terms have been communicated to you and/or the general
public. If you do not agree with the changes to Fairing’s pricing, you may
choose not to renew your Subscription in accordance with the section “How
to Cancel Your Subscription.”
8.7. How to Cancel Your
Subscription. All amounts are payable and charged at the
beginning of the Subscription and, because each such Subscription renews
automatically for an additional period equal in length to the expiring
Subscription Term until you cancel it, at the time of each renewal until
you cancel, using the Payment Information you have provided. You must
cancel your monthly or yearly Subscription before it renews to avoid the
billing of the fees for the next Subscription period. If you purchase
your Subscription via Shopify, you can cancel the renewal of your
Subscription at any time with Shopify. You will not receive a refund for
the fees you already paid for your current Subscription period and you will
continue to receive the Services ordered until the end of your current
Subscription period.
8.8. Future Functionality.
You agree that your purchases are not contingent on the delivery of any
future functionality or features, or dependent on any oral or written
public comments made by Fairing regarding future functionality or features.
9. Confidentiality
9.1. Definition. The Parties
acknowledge that, in the course of performance under this Agreement, one
Party (“Disclosing Party”) may intentionally or
inadvertently disclose, deliver or permit access to by the other Party
(“Receiving Party”) certain data, materials,
methodologies, and information (in written, oral, and/or electronic
format)that a reasonable person would understand to be secret, proprietary
and/or confidential given the circumstances of the disclosure (collectively
“Confidential Information”).
9.2. Confidentiality
Obligations. Receiving Party shall hold all Confidential
Information of Disclosing Party in the strictest confidence and shall not
disclose or provide such Confidential Information to any third Party
without the express written consent of Disclosing Party in each instance,
except that Receiving Party may disclose or provide such Confidential
Information to the officers, directors, employees, subcontractors and
suppliers of Receiving Party whose duties justify a need-to-know such
Confidential Information; who are notified of their burden of
confidentiality; and in the case of those who are not officers, directors
or employees of Receiving Party, who have signed a non-disclosure agreement
containing restrictions, terms and conditions that are at least as
restrictive as those set forth herein. In all events Receiving Party shall
use the same level of care to protect the Confidential Information of
Disclosing Party as Receiving Party uses to protect Receiving Party’s own
most confidential and sensitive information but not less than reasonable
care. Receiving Party shall not make any use whatsoever of Confidential
Information of Disclosing Party except such limited use as is required to
perform Receiving Party’s obligations under this Agreement. To the limited
extent reasonably necessary for such permitted use, the foregoing shall
include the right to make a reasonable number of copies of such
Confidential Information each of which shall be subject to this section.
9.3. Exclusions. The
obligations set forth in this section shall not apply to Confidential
Information which Receiving Party can demonstrate by reasonable written
evidence: (i) is already, or otherwise becomes, generally known by third
parties as a result of no act or omission of Receiving Party; (ii)
subsequent to disclosure hereunder is lawfully received from a third Party
having the right to disseminate the information and without restriction on
disclosure; (iii) is generally furnished to others by Disclosing Party
without restriction on disclosure; (iv) is independently developed by
Receiving Party with written evidence of such independent development; or
(v) is disclosed pursuant to a legal or administrative order, provided that
Disclosing Party is given prior notice and a reasonable opportunity to
object (with Receiving Party’s assistance) to such disclosure.
9.4. Return of Confidential Information;
Ownership. Upon the written request of Disclosing Party,
Receiving Party shall cease providing access, using and promptly securely
destroy all copies of any Confidential Information of Disclosing Party then
in Receiving Party’s possession or under Receiving Party’s control, subject
to Disclosing Party’s right to the return of original copies of any of its
Confidential Information. Upon the written request of Disclosing Party,
Receiving Party shall confirm inwriting that Receiving Party has complied
with the obligations set forth in this paragraph. Notwithstanding the
foregoing, Receiving Party is not required to destroy, erase or modify any
archival records that it maintains in the normal course of its business,
provided that the terms of this Agreement shall survive termination and
apply to such Confidential Information until it is securely destroyed.
Except as expressly provided herein, nothing in this Agreement shall be
construed to grant Receiving Party any right, title or interest (including
any license) in or to Confidential Information of Disclosing Party.
10. Warranties; Disclaimer
10.1. Mutual Warranties.
Each Party represents and warrants that: (i) it has all requisite corporate
power and authority to execute, deliver and perform its obligations under
this Agreement and each Order; (ii) the execution, delivery and performance
of this Agreement and each Order (a) has been duly authorized by such
Party, and (b) will not conflict with, result in a breach of or constitute
a default under any other agreement to which such Party is a party or by
which such Party is bound; and (iii) it is duly licensed, authorized or
qualified to do business and is in good standing in every jurisdiction in
which a license, authorization or qualification is required for the
ownership or leasing of its assets or the transaction of business of the
character transacted by it, except where the failure to be so licensed,
authorized or qualified would not have a material adverse effect on such
Party’s ability to fulfill its obligations under this Agreement and the
Order.
10.2. Disclaimer. You
expressly agree that the use of, or inability to use, the Services is at
your sole risk. TO THE EXTENT PERMITTED BY APPLICABLE LAW, FAIRING AND ITS
OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES,
AFFILIATES, AGENTS, AND LICENSORS DISCLAIM ALL WARRANTIES, CONDITIONS, AND
REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR
OTHERWISE, INCLUDING, WITHOUT LIMITATION, THOSE RELATED TO MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING OUT
OF COURSE OF DEALING OR USAGE OF TRADE.
The Services are provided on an “as is” and “as available” basis. TO THE
EXTENT PERMITTED BY APPLICABLE LAW, FAIRING AND ITS AFFILIATES MAKE NO
REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT
AVAILABLE ON OR THROUGH THE SERVICES, OR THE CONTENT OF ANY THIRD-PARTY
WEBSITES OR SERVICES LINKED TO OR INTEGRATED WITH OUR SERVICES. WE DO NOT
REPRESENT OR WARRANT THAT (i) YOUR USE OF OURSERVICES WILL BE
UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (ii) ANY ERRORS IN THE
SERVICES WILL BE CORRECTED, (iii) THE QUALITY OF THE SERVICES, INFORMATION,
OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU WILL MEET YOUREXPECTATIONS,
(iv) THE SERVICES WILL BE FREE OF ANY WORMS OR VIRUSES OR ANYCODE OF A
MALICIOUS AND/ OR DESTRUCTIVE NATURE, OR (v) THE RESULTS THAT MAY BE
OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
FAIRING AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY: (i) ERRORS,
MISTAKES, OR INACCURACIES OF CONTENT; (ii) PERSONAL INJURY OR PROPERTY
DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES OR CONSUMPTION
OF ANY CONTENT; (iii) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR
OF ANY PERSONAL INFORMATION OR USER DATA; (iv) ANY INTERRUPTION OF
TRANSMISSION TO OR FROM THE SERVICES; (v) ANY BUGS, VIRUSES, TROJAN HORSES
OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE SERVICES; (vi) ANY
LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULTOF THE USE OF ANY CONTENT
POSTED OR SHARED THROUGH THE SERVICES; OR (vii) LOSS OR DAMAGED CAUSED BY
ANOTHER USER’S VIOLATION OF THIS AGREEMENT.
11. Indemnification
11.1. Indemnification. You
agree to indemnify, defend and hold Fairing and its parent, subsidiaries,
affiliates, partners, officers, directors, contractors, licensors, service
providers, subcontractors, suppliers, interns agents, and employees,
harmless from and against any and all losses, claims, liabilities, damages,
judgments, actions, proceedings, investigations (whether formal or
informal), demands or expenses(including reasonable attorneys’ fees), or
threats thereof, due to, arising out of or relating to (i) your breach of
this Agreement or the documents incorporated by reference or hyperlink,
(ii) your violation of (a) any law or regulation, or (b) the rights of a
third party, or (iii) your use of the Services.
11.2. Indemnification
Procedures. In the event of such a claim, suit, or action, we
will attempt to provide you notice of the claim, suit, or action at the
contact information we have for your Account on file (provided, that
failure to deliver such notice shall not eliminate or reduce your
indemnification obligations hereunder). Fairing reserves the right, at its
own cost, to assume the exclusive defense and control of any matter
otherwise subject to indemnification by you, in which event you will fully
cooperate with Fairing in asserting any available defenses. You agree that
the provisions in this section will survive any termination of your
Account, this Agreement, or your access to the Services, including the
purchase or use of any benefits through the Services.
12. Limitations of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL FAIRING AND ITS
AFFILIATES, OFFICERS, DIRECTORS, AFFILIATES,AGENTS, CONTRACTORS,
REPRESENTATIVES, INTERNS, SUPPLIERS, SERVICE PROVIDERS, APP PROVIDERS, OR
LICENSORS BE RESPONSIBLE FOR ANY LOSS INCLUDING, WITHOUT LIMITATION, LOST
PROFITS, REVENUES, OR FINANCIAL LOSSES, OR ANY INDIRECT,
SPECIAL,CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING FROM THIS
AGREEMENT OR THE SERVICES, OR FOR ANY DAMAGES RELATED TO THE LOSS OF
REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE, LOSS OF GOODWILL
OR LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH
OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF FAIRING HAS BEEN
ADVISED OF THE POSSIBILITY OFSUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT SHALL THE
MAXIMUM TOTAL LIABILITY OF FAIRING AND ITS AFFILIATES, FOR ANY CLAIMS
ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE ACCESS TO AND
USE OF THE SERVICES, EXCEED THE GREATER OF (1)$100 OR (2) TO THE TOTAL
AMOUNT YOU PAID TO FAIRING IN FEES OVER THE SIX (6)MONTHS IMMEDIATELY
PRECEDING THE CLAIM.
Some jurisdictions do not allow the exclusion of certain warranties and
limitations of liability provided in this section. If you are in such a
jurisdiction, some of the above limitations and disclaimers may not apply
to you. To the extent we may not, as a matter of applicable law, disclaim
any implied warranty or limit our liabilities, the scope and duration of
such warranty and the extent of our liability will be the minimum permitted
by applicable law.
13. Digital Millennium Copyright Act
(“DMCA”)
Fairing respects the intellectual property rights of others. It is our
policy to respond promptly to any claim that Content infringes the
copyright or other intellectual property rights of any person. Fairing will
use reasonable efforts to investigate notices of alleged infringement and
will take appropriate action in accordance with the DMCA and this
Agreement. If you believe that your copyrighted work is infringed by
Content, please provide a written DMCA notice to Fairing at:
[email protected]
13.1. Filing a DMCA “Take Down”
Notification. If you are a copyright owner or an agent
thereof and believe that any Content infringes upon your copyrights, you
may submit a take-down notification (“Take-Down
Notification”) pursuant to the DMCA by providing us with the
following information in writing (see 17U.S.C. § 512 for further detail):
(i) A
physical or electronic signature of a person authorized to act on behalf of
the owner of an exclusive right that is allegedly infringed;
(ii) Identification
of the copyrighted work claimed to have been infringed, or, if multiple
copyrighted works, a representative list of such works in the App;
(iii) Identification
of the material that is claimed to be infringing or to be the subject of
infringing activity and that is to be removed or access to which is to be
disabled, and information reasonably sufficient to permit us to locate the
material; **Providing URLs or other similar specific location markers in
the body of your DMCA notification is the best way to help us locate
content quickly**
(iv) Information
reasonably sufficient to permit us to contact you (the complaining party),
such as an address, telephone number, and electronic mail address at which
you (the complaining party) may be contacted;
(v) A
statement that you (the complaining party)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;
(vi) A
statement that the information in the notification is accurate, and under
penalty of perjury, that you (the complaining party) are authorized to act
on behalf of the owner of an exclusive right that is allegedly infringed;
and
(vii) **(Optional)
Provide information, if possible, sufficient to permit us to notify the
user(s) who posted the content that allegedly contains infringing material.
Any person who knowingly materially misrepresents that content or an
activity is infringing or that any material or activity was removed or
disabled by mistake or misidentification, shall be liable to us and
possibly others for any damages, including costs and attorneys’ fees
incurred by us in removing or disabling access to the material or activity
claimed to be infringing or in replacing the removed material or enabling
access to it.
13.2. Responding to a DMCA Notice with a
Counter-Notification. We will take reasonable steps to
promptly inform you if your content has been taken down upon receipt of an
effective Take-Down Notification. If you believe that the content that was
removed or to which access was disabled is not infringing, or that you have
the authorization from the copyright owner or the copyright owner’s agent
or pursuant to the law, to mint and use the material, you may send us a
counter notification (“Counter Notification”) containing
the following information:
(i) Your
physical or electronic signature;
(ii) Identification
of the material that has been removed or to which access has been disabled
and the location at which the material appeared before it was removed or
disabled;
(iii) A
statement that you have a good faith belief that the material was removed
or disabled as a result of mistake or a misidentification of the material;
and
(iv) Your
name, address, telephone number, and e-mail address, a statement that you
consent to the jurisdiction of the U.S. district court in the state in
which you reside (or the U.S. district court where our headquarters are
located if your address is outside of the United States), and a statement
that you will accept service of process from the person who provided
notification of the alleged infringement to us.
You have ten (10) business days after receipt of a Take-Down Notification
to send us an effective Counter Notification or the allegedly infringing
material may not be restored.
Any person who knowingly materially misrepresents that material or
activity is infringing or that any material or activity was removed or
disabled by mistake or misidentification, shall be liable to us for any
damages, including costs and attorneys’ fees incurred by us in removing or
disabling access to the material or activity claimed to be infringing or in
replacing the removed material or enabling access to it.
13.3. Whereto Send a DMCA
Request. You must submit your DMCA Take-Down Notification and
Counter Notifications to us by email. The subject/heading of the email
shall be: Fairing Take Down Notification.
13.4. DMCA Notices Must Comply With These
Requirements. Official DMCA Notices must provide
all the information described above in order to be
effective. If your DMCA Notice is ineffective, we may ignore it and have no
obligation to remove the allegedly infringing content.
13.5. Fairing has the Right to Remove
Allegedly Infringing Content. Fairing reserves the right to
remove any content that allegedly infringes another person's copyright or
trademark rights, thereby restricting access to or visibility of the
Services. Fairing shall not be liable to you for any content that was
subsequently taken down by Fairing pursuant to a valid Take-Down
Notification or a determination of a user’s violation of this Agreement.
14. Dispute Resolution
14.1. Mandatory Arbitration of
Disputes. We each agree that any dispute, claim, or
controversy arising out of or relating to this Agreement or the breach,
termination, enforcement, interpretation, or validity thereof or the use of
the Services (collectively, “Disputes”)will be resolved
solely by binding, individual arbitration and not in a class,
representative or consolidated action or proceeding. You and Fairing agree
that the U.S. Federal Arbitration Act governs the interpretation and
enforcement of this Agreement, and that you and Fairing are each waiving
the right to a trial by jury or to participate in a class action. This
arbitration provision shall survive termination of this Agreement.
14.2. Exceptions. As
limited exceptions to Section 14.1. above: (i) we both may seek to resolve
a Dispute in small claims court if it qualifies; and (ii) we each retain
the right to seek injunctive or other equitable relief from a court to
prevent (or enjoin) the infringement or misappropriation of our respective
intellectual property rights.
14.3. Conducting Arbitration and
Arbitration Rules. The arbitration will be conducted by the
American Arbitration Association (“AAA”) under its
Consumer Arbitration Rules (the “AAA Rules”) then in
effect, except as modified by this Agreement. The AAA Rules are available
at www.adr.org or by calling1-800-778-7879. A party who wishes to start
arbitration must submit a written Demand for Arbitration to AAA and give
notice to the other Party as specified in the AAA Rules. The AAA provides a
form Demand for Arbitration at www.adr.org.
14.4. Arbitration Costs.
Payment of all filing, administration and arbitrator fees will be governed
by the AAA Rules, and each Party shall bear its own costs and expenses of
arbitration, including legal fees.
14.5. Injunctive and Declaratory
Relief. Except as provided in Section 14.2. above, the
arbitrator shall determine all issues of liability on the merits of any
claim asserted by either Party and may award declaratory or injunctive
relief only in favor of the individual Party seeking relief and only to the
extent necessary to provide relief warranted by that Party’s individual
claim. To the extent that you or we prevail on a claim and seek public
injunctive relief (that is, injunctive relief that has the primary purpose
and effect of prohibiting unlawful acts that threaten future injury to the
public), the entitlement to and extent of such relief must be litigated in
a civil court of competent jurisdiction and not in arbitration. The Parties
agree that litigation of any issues of public injunctive relief shall be
stayed pending the outcome of the merits of any individual claims in
arbitration.
14.6. Class Action Waiver.
YOU AND FAIRING AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER
ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS
MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the
Parties’ Dispute is resolved through arbitration, the arbitrator may not
consolidate another person’s claims with your claims, and may not otherwise
preside over any form of a representative or class proceeding. If this
specific provision is found to be unenforceable, then the entirety of this
Dispute Resolution section shall be null and void.
15. Marketing
Fairing may use a logo, trademark, service mark, trade name, or image,
whether any of the foregoing are registered or unregistered, or otherwise
protected or protectable under state or federal law (each a “Mark”), and
you hereby provide Fairing with the necessary rights and licenses, to use
your Marks (i) in connection with the obligations to perform, assist and
support the Services as contemplated in this Agreement and/or an Order,
and/or (ii) on the Fairing’s website, blog, or in marketing materials,
including case studies and press references, to identify you as a customer
of Fairing. Each party recognizes and acknowledges exclusive ownership of
its respective Mark and the goodwill associated therewith.
16. Miscellaneous
16.1. Entire Agreement.
This Agreement, each Order hereunder, our Privacy Policy and any other
policies or operating rules posted by us on the Services or in respect to
the Services constitute the entire and exclusive agreement and
understanding between you and Fairing related to the Services, and
supersedes any prior or contemporaneous agreements, communications, and
proposals, whether oral or written, between you and us (including, but not
limited to, any prior versions of the Agreement). Any ambiguities in the
interpretation of this Agreement shall not be construed against the
drafting party.
16.2. Changes to the Services; Changes
to the Agreement.
(i) Changes
to the Agreement. Fairing reserves the right, at our sole discretion, to
update, change, amend, modify or replace any part of this Agreement by
posting updates and changes on the Services. We may elect to notify you of
such changes by mail, email, posting of modified the Agreement, or some
other similar manner. However, it is your responsibility to check the
Services regularly for changes to this Agreement. At all times, the most
current version of this Agreement will be in effect and each updated,
changed, amended, modified or replacement Agreement supersedes any prior
Agreement. Your continued use of or access of the Services following the
posting of any changes to this Agreement constitutes acceptance of those
changes.
(ii) Changes
to the Services. We reserve the right to modify or upgrade the Services for
any reason, without notice, at anytime, which may include upgrades, bug
fixes, patches, other error corrections, and/or new features (collectively,
including related documentation, "Updates"). Additionally,
Updates may also modify or delete in their entirety certain features and
functionality. You agree that Fairing has no obligation and shall not be
liable to you or to any third party to provide any Updates or to continue
to provide or enable any particular features or functionality. You further
agree that all Updates will be deemed part of the Services and be subject
to all terms and conditions of this Agreement.
16.3. Governing Law. This
Agreement and each Order and all disputes arising out of or relating to
this Agreement and each Order shall be governed by, construed, and enforced
in accordance with the laws of the State of New York in the United States,
without regard to its conflict of laws principles. The Parties acknowledge
and agree that any and all disputes will be resolved exclusively in a venue
with appropriate jurisdiction in New York, New York.
16.4. Severability. In the
event that any provision of this Agreement is determined to be unlawful,
void, or unenforceable, such provision shall nonetheless be enforceable to
the fullest extent permitted by applicable law, and the unenforceable
portion shall be deemed to be severed from this Agreement, such
determination shall not affect the validity and enforceability of any other
remaining provisions.
16.5. Waiver. The failure
of Fairing to exercise or enforce any right or provision of this Agreement,
shall not impair such right or be constituted as a waiver of any such
right or remedy. Any single or partial exercise of a right or remedy by us
shall not preclude further exercise or any right or remedy by us. No waiver
by us shall be valid unless in writing signed by us.
16.6. Survival. Upon
termination, all provisions of this Agreement, which, by their nature,
should survive termination, shall survive termination, including, without
limitation, confidentiality, ownership provisions, warranty disclaimers,
indemnification, and limitations of liability.
16.7. Assignment. You may
not assign this Agreement to any other party. We may assign this Agreement
or delegate any or all of our rights and responsibilities under this
Agreement to any third parties, without notice to you.
16.8. Headings. The
headings used in the Agreement are included for convenience only and will
not limit or otherwise affect this Agreement.
17. Contact Us
Questions about our Agreement should be sent to [email protected] or our
mailing address at:
Fairing Inc. dba Fairing
228 Park Avenue South
PMB 38031
New York NY, US, 10003
Technical support is provided to all users and can be accessed by emailing
our support team at [email protected].