Version 4
Effective Date: February 10, 2023
Last Updated Date: January 31, 2023
PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY. THIS WEBSITE AND ANY OTHER WEBSITES OF FOOJI, INC. (“FOOJI,” “WE,” OR “US”), ITS AFFILIATES OR AGENTS (COLLECTIVELY, THE “WEBSITE”) AND THE INFORMATION ON IT ARE CONTROLLED BY FOOJI. THESE TERMS OF USE GOVERN THE USE OF THE WEBSITE AND APPLY TO ALL USERS VISITING THE WEBSITE BY ACCESSING OR USING THE WEBSITE IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE, SUCH AS THE ANALYTICS DASHBOARD (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”). BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR BROWSING THE WEBSITE, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH FOOJI, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE. IF YOU DO NOT AGREE TO BE BOUND BY, OR FAIL TO COMPLY WITH, THE TERMS OF USE, YOU ARE NOT AUTHORIZED TO ACCESS OR USE THE SERVICES.
PLEASE BE AWARE THAT SECTION 14 OF THE AGREEMENT BELOW CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND FOOJI HAVE AGAINST EACH OTHER WILL BE RESOLVED, INCLUDING WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THE AGREEMENT. SECTION 14 CONTAINS, AMONG OTHER THINGS, AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND FOOJI BE RESOLVED BY BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN 30 DAYS OF THE EFFECTIVE DATE OF THE AGREEMENT: (1) YOU AND FOOJI WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST THE OTHER PARTY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND EACH OF US WAIVES OUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) EACH OF US IS WAIVING OUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Terms.”
PLEASE NOTE THAT ThIS AGREEMENT IS subject to change by FOOJI in its sole discretion at any time. When changes are made, Fooji will make a new copy of the Agreement available on the Website. We will also update the “Last Updated” date at the top of this Agreement. If we make any material changes, and you have registered to use the Services, we will also send an e-mail to you at the last e-mail address you provided to us pursuant to this Agreement. Any changes to this Agreement will be effective immediately for new users of the Services and will be effective thirty (30) days after posting of notice of such changes for existing users. If you do not agree to any change(s), you must stop using the Services. Otherwise, your continued use constitutes your acceptance of such change(s).
1. How Our Services Work. Fooji works with brands (each, a “Brand”) to build exciting experiences for their fans. The Services are designed to provide users with the ultimate fan experience, by merging chat and social networks with on-demand services. Our fan experience platform and range of products include brand experiences, branded item delivery, talent delivery, events, and campaign results and analysis, and any such specific activations for Brands constitute “Campaigns”.
From time to time, Brands may offer certain prizes (“Prizes”) in connection with Campaigns (“Promotions”). All Prizes are subject to any additional terms published on a Brand’s website, as such may be amended or changed from time to time (the “Rules”). You agree that the Brand providing the Prize will be solely responsible for providing your Prize and you release Fooji from any claim related to any failure by the Brand to provide the Prize as promised. For clarity, you agree that Fooji will not be responsible or liable for any failure to provide a Prize or for any delay in providing a Prize. Certain Prizes may be age restricted to persons over 21 years or 18 years of age. You agree that you will not be eligible to receive any age restricted prize unless you are above the applicable age limit (as stated in the Rules for the relevant Campaign). You further agree that if you ignore the state age restrictions and enter a Promotion and are awarded an age restricted Prize for which you do not qualify, you will immediately forfeit all claims to such Prize. The Brand is the issuer of the Prize and is fully responsible for all goods and services it provides to you and for any and all injuries, illnesses, damages, claims, liabilities and costs (“Liabilities”) it may cause you to suffer, directly or indirectly, in full or in part, whether related to the use, receipt, or redemption of a Prize. You waive and release Fooji and its subsidiaries, affiliates, partners, officers, directors, employees and agents from any Liabilities arising from or related to any act or omission of a Brand in connection with your receipt or use of a Prize.
2. Use of the Services and the Fooji Properties. The Website, the Services, and the information and content available on the Website and the Services (as these terms are defined herein) (collectively, the “Fooji Properties”) are protected by copyright laws throughout the world. Subject to the Terms, Fooji grants you a limited license to reproduce portions of the Fooji Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Fooji in a separate license, your right to use any the Fooji Properties is subject to the Terms.
2.1 Updates. You understand that the Fooji Properties are evolving. As a result, Fooji may require you to accept updates to the Fooji Properties that you have installed on your computer or mobile device. You acknowledge and agree that Fooji may update the Fooji Properties with or without notifying you. You may need to update third-party software from time to time in order to use the Fooji Properties.
2.2 Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, duplicate, copy, trade, resell, distribute, host or otherwise commercially exploit the Fooji Properties or any portion of the Fooji Properties, including the Website, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other the Fooji Properties (including images, text, page layout or form) of Fooji; (c) you shall not use any metatags or other “hidden text” using Fooji’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Fooji Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the Fooji Properties in order to build a similar or competitive website, application or service; (g) you shall not interfere or attempt to interfere with the proper functioning of the Fooji Properties or connect to or use the Fooji Properties in any way not expressly permitted by the Terms; (h) you shall not make any automated use of the Fooji Properties, or take any action that imposes or may impose (in Foojis’s sole discretion) an unreasonable or disproportionately large load on the infrastructure for the Fooji Properties; (i) you shall not forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Fooji Properties; (j) except as expressly stated herein, no part of the Fooji Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (k) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Fooji Properties. Any future release, update or other addition to the Fooji Properties shall be subject to the Terms. Fooji, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Fooji Properties terminates the licenses granted by Fooji pursuant to the Terms.
2.3 Third-Party Materials. As a part of the Fooji Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Fooji to monitor such materials and that you access these materials at your own risk.
3. Registration.
3.1 Registering Your Account. In order to access certain features of the Fooji Properties, you may be required to create an account (“Account”). For purposes of the Terms, a “Registered User” is a user who has registered an account on the Website (“Account”) or has a valid account on the social networking service (“SNS”) through which the user has connected to the Website (each such account, a “Third-Party Account”).
3.2 Access Through a SNS. If you access the Fooji Properties through a SNS as part of the functionality of the Website, the Application and/or the Services, you may link your Account with Third-Party Accounts, by allowing Fooji to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Fooji and/or grant Fooji access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Fooji to pay any fees or making Fooji subject to any usage limitations imposed by such third-party service providers. By granting Fooji access to any Third-Party Accounts, you understand that Fooji may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through Fooji Properties (collectively, “Content”) that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through Fooji Properties via your Account. Unless otherwise specified in the Agreement, all SNS Content shall be considered to be Your Content (as defined in Section 4.1) for all purposes of the Agreement. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on Fooji Properties. Please note that if a Third-Party Account or associated service becomes unavailable or Fooji’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through Fooji Properties. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the Website. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND FOOJI DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Fooji makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Fooji is not responsible for any SNS Content.
3.3 Registration Data. In registering your Account, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (l) at least thirteen (13) years old; (m) of legal age to form a binding contract; and (n) not a person barred from using Fooji Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Fooji Properties by minors. You may not share your Account or password with anyone, and you agree to (y) notify Fooji immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Fooji has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Fooji has the right to suspend or terminate your Account and refuse any and all current or future use of Fooji Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or SNS at any given time. You may not link multiple of your Third-Party Accounts to the Services in an attempt to create multiple Accounts for yourself on the Services. If you attempt to create multiple Accounts for yourself on the Services, or Fooji has reasonable grounds to suspect you are doing so, Fooji has the right to suspend or terminate your Account and refuse any and all current or future use of Fooji Properties (or any portion thereof). Fooji reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use Fooji Properties if you have been previously removed by Fooji, or if you have been previously banned from any of Fooji Properties.
3.4 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Fooji Properties, including but not limited to, a mobile device that is suitable to connect with and use the Fooji Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Fooji Properties. By providing your cellphone number and using the Services, you hereby affirmatively consent to our use of your cellphone number for calls and texts in order to perform and improve upon the Services. Fooji will not assess and charge for any calls or texts, but standard message charges or other charged from your wireless carrier may apply. You may opt out of receiving text messages from us by emailing help@fooji.com.
4. Responsibility for Content.
4.1 Types of Content. You acknowledge that all content, including the Fooji Properties (the “Content”), is the sole responsibility of the party from whom such Content originated. This means that you, and not Fooji, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Fooji Properties (“Your Content”), and that you and other users of the Fooji Properties (“Users”), and not Fooji, are similarly responsible for all Content they Make Available through the Fooji Properties (“User Content”).
4.2 No Obligation to Pre-Screen Content. Fooji may provide you with interactive opportunities on the Services, including features such as user ratings and reviews, saved favorites, liked terms and booked marked restaurants. You acknowledge that Fooji has no obligation to pre-screen Content (including, but not limited to, User Content), although Fooji reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Fooji pre-screens, refuses or removes any Content, you acknowledge that Fooji will do so for Fooji’s benefit, not yours. Without limiting the foregoing, Fooji shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
4.3 Storage. Unless expressly agreed to by Fooji in writing elsewhere, Fooji has no obligation to store any of Your Content that you Make Available on the Fooji Properties. Fooji has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Fooji Properties.
5. Ownership.
5.1 Fooji Properties. Except with respect to Your Content and User Content, you agree that Fooji and its suppliers own all rights, title and interest in the Fooji Properties (including but not limited to, any visual interfaces, graphics, designs, compilations, information, data, computer code (including source code or object code), products, software, all other elements of the Services). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or the Fooji Properties.
5.2 Trademarks.Fooji and other related graphics, logos, service marks and trade names used on or in connection with the Fooji Properties or in connection with the Services are the trademarks of Fooji and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Fooji Properties are the property of their respective owners.
5.3 Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the Fooji Properties.
5.4 Your Content. Fooji does not claim ownership of Your Content. However, when you as a User post or publish Your Content on or in the Fooji Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
5.5 License to Your Content. Subject to any applicable account settings that you select, you grant Fooji a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing the Fooji Properties to you and to our other Users. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Fooji Properties and any Social Networking Services if you post any of Your Content on such services. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Fooji, are responsible for all of Your Content that you Make Available on or in the Fooji Properties.
5.6 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Fooji through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Fooji has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Fooji a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Fooji Properties.
6. User Conduct
6.1 Cheating and Hacking. You agree that you will not, under any circumstances:
(a) Use cheats, exploits, automation software, bots, hacks, mods or any unauthorized software designed to modify or interfere with any Fooji Properties;
(b) Interfere with or damage Fooji Properties, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;
(c) Modify or cause to be modified any files that are a part of Fooji Properties;
(d) Disrupt, overburden, or aid or assist in the disruption or overburdening of: (i) any computer or server used to offer or support Fooji Properties; or (ii) the enjoyment of Fooji Properties by any other person;
(e) Institute, assist, or become involved in any type of attack, including, but not limited to, distribution of a virus, denial of service attacks upon Fooji Properties, or other attempts to disrupt Fooji Properties or any other person’s use or enjoyment of Fooji Properties;
(f) Attempt to gain unauthorized access to Fooji Properties, accounts registered to others, or to the computers, servers or networks connected to Fooji Properties by any means other than the user interface provided by Fooji, including, but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of Fooji Properties;
(g) Access, tamper with or use non-public areas of Fooji Properties, Fooji’s computer systems, or the technical delivery systems of Fooji’s providers;
(h) Attempt to probe, scan, or test the vulnerability of any Fooji system or network, or breach any security or authentication measures;
(i) Disrupt or interfere with the security of, or otherwise cause harm to, Fooji Properties, systems, resources, accounts, passwords, servers or networks connected to or accessible through Fooji Properties or any affiliated or linked sites; or
(j) Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Fooji or any of Fooji’s providers or any other third party (including another user) to protect Fooji Properties.
6.2 Commercial Activities. You agree that you will not, under any circumstances (except to the extent expressly authorized by the Agreement):
(a) Reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose any portion of Fooji Properties (including your Account), or access to or use of Fooji Properties;
(b) Upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation in connection with any Fooji Property;
(c) Use Fooji Properties or any part thereof for any commercial purpose, including, but not limited to, communicating or facilitating any commercial advertisement or solicitation;
(d) Engage in any chain letters, contests, junk email, pyramid schemes, spamming, surveys or other duplicative or unsolicited messages (commercial or otherwise) in connection with Fooji Properties; or
(e) Market any goods or services for any business purposes on or in connection with any Fooji Properties.
6.3 General. In connection with your use of Fooji Properties, you shall not:
(a) Make Available any Content that, in Fooji’s sole discretion, (i) is unlawful, tortious, defamatory, vulgar, pornographic, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities;
(b) Harm minors in any way;
(c) Impersonate any person or entity, including, but not limited to, Fooji personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(d) Make available any Content that you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
(e) Make Available any Content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights;
(f) Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court;
(g) Register for more than one Account or register for an Account on behalf of an individual other than yourself;
(h) Stalk or otherwise harass, bully or intimidate any other user of our Fooji Properties; or
(i) Advocate, encourage, or assist any third party in doing any of the foregoing activities in this section.
7. Third-Party Services.
7.1 Third-Party Websites, Applications & Ads. The Fooji Properties may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left the Fooji Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of Fooji. Fooji is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. Fooji provides these Third-Party Websites, Third-Party Applications and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or their products or services. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
7.2 Interactions with Brands, Marketing Partners and Third Parties. Your correspondence, business dealings, or other interactions with, or participation in promotions of or attendance of events sponsored by, brands, marketing partners or other third parties found on our Website or through our Services (“Third Party Transactions”), including payment and delivery of related goods or services, transportation services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such brand, marketing partner or other third party. When engaging in a Third Party Transaction, the terms and conditions and policies of the applicable third party, not of Fooji, will govern your Third Party Transaction. You agree that Fooji shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such marketing partners or other third parties on our Website or located through the use of our Services.
8. Indemnification. You agree to indemnify and hold Fooji, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Fooji Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the Fooji Properties, including any Third-Party Transaction in which you participate through the Fooji Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Users; (e) your violation of any applicable laws, rules or regulations. Fooji 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 Fooji in asserting any available defenses. This provision does not require you to indemnify any of the Fooji Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the Fooji Properties.
9. Disclaimer of Warranties and Conditions.
9.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE FOOJI PROPERTIES IS AT YOUR SOLE RISK, AND THE FOOJI PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. FOOJI PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.
(a) FOOJI PARTIES MAKE NO GUARANTEE, WARRANTY, REPRESENTATION OR CONDITION THAT: (1) YOU OR ANY OTHER USER OF THE SERVICES WILL OBTAIN ANY PARTICULAR OR TANGIBLE RESULT OR GOAL THROUGH THE USE OF THE SERVICES, OR ANY PRODUCT OR SERVICE MADE AVAILABLE ON OR THROUGH THE SERVICES OR WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE FOOJI PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE FOOJI PROPERTIES, INCLUDING ANY PRODUCT MADE AVAILABLE THROUGH THE SERVICES, WILL BE ACCURATE OR RELIABLE.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE FOOJI PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE FOOJI PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) ANY SERVICES OFFERED OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES, INCLUDING EVENTS OR ANY THIRD PARTY TRANSACTIONS, ARE ACCESSED OR USED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGES INCURRED IN CONNECTION WITH YOUR PARTICIPATION OR INVOLVEMENT IN SUCH SERVICES.
(d) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. FOOJI MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(e) From time to time, Fooji may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Fooji’s sole discretion. The provisions of this section apply with full force to such features or tools.
9.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT FOOJI PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD FOOJI PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
10. Limitation of Liability.
10.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL FOOJI PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT FOOJI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF FOOJI PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE FOOJI PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH FOOJI PROPERTIES, INCLUDING THIRD PARTY TRANSACTIONS; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON FOOJI PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO FOOJI PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A FOOJI PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A FOOJI PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A FOOJI PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
10.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL FOOJI PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO Fooji by you during the one-month period prior to the act, omission or occurrence giving rise to such liability; (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES; or (C) $100. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A FOOJI PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A FOOJI PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A FOOJI PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
10.3 User Content. EXCEPT FOR FOOJI’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE FOOJI’S PRIVACY POLICY, FOOJI ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
10.4 Prizes. Any claim related to lost, mutilated, missing, unclaimed or stolen Prize(s) FROM A PROMOTION must be received IN WRITING within fourteen (14) days of notification of winning or will be ignored.
10.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FOOJI AND YOU.
11. Remedies.
11.1 Violations. If Fooji becomes aware of any possible violations by you of the Terms, Fooji reserves the right to investigate such violations. If, as a result of the investigation, Fooji believes that criminal activity has occurred, Fooji reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Fooji is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Fooji Properties, including Your Content, in Fooji’s possession in connection with your use of the Fooji Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that Your Content violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Fooji, its Users or the public, and all enforcement or other government officials, as Fooji in its sole discretion believes to be necessary or appropriate.
11.2 Breach. In the event that Fooji determines, in its sole discretion, that you have breached any portion of the Agreement, or have otherwise demonstrated conduct inappropriate for Fooji Properties, Fooji reserves the right to:
(a) Warn you via e-mail (to any e-mail address you have provided to Fooji) that you have violated the Agreement;
(b) Terminate your eligibility to utilize Fooji Properties, including the eligibility of any Third-Party Accounts, email addresses, or physical addresses associated with your Account;
(c) Delete any of Your Content provided by you or your agent(s) to Fooji Properties;
(d) Discontinue your registration(s) with any of Fooji Properties, including any Services;
(e) Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
(f) Pursue any other action which Fooji deems to be appropriate, including seeking damages from you to the fullest extent permitted by applicable law.
12. Term and Termination.
12.1 Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Fooji Properties, unless terminated earlier in accordance with the Terms.
12.2 Prior Use. Notwithstanding the foregoing, if you used the Fooji Properties prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used the Fooji Properties (whichever is earlier) and will remain in full force and effect while you use the Fooji Properties, unless earlier terminated in accordance with the Terms.
12.3 Additional Termination Rights. Either party may terminate this Agreement or suspend its performance under this Agreement at any time upon notice to the other party if the other party breaches any material term hereof and fails to cure such breach in accordance with the following cure procedure. If a party wishes to terminate this Agreement due to the other party breaching a material term of this Agreement, then the non-breaching party shall serve written notice on the other party specifying the breach and requiring it to be rectified. If the material breach has not been remedied within thirty (30) days of the original notice of default or such other period as may be agreed, then the notifying party will have the right to terminate this Agreement by a further written notice, with immediate effect. Fooji may also decommission the Services and terminate at any time upon thirty (30) days’ notice.
12.4 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Fooji will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
13. Procedure for Making Claims of Copyright Infringement. It is Fooji’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Fooji by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Fooji Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Fooji Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Fooji’s Copyright Agent for notice of claims of copyright infringement is as follows:
Fooji, Inc.
Gregg Morton, Copyright Agent
257 E. Short Street, Suite 200
Lexington, KY 40507
14. Dispute Resolution. . Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Fooji and limits the manner in which you can seek relief from us. PLEASE BE AWARE THAT THIS SECTION 14 CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND FOOJI HAVE AGAINST EACH OTHER WILL BE RESOLVED. AMONG OTHER THINGS, THIS SECTION 14 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND FOOJI BE RESOLVED BY BINDING AND FINAL ARBITRATION. THIS SECTION 14 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ THIS SECTION 14 CAREFULLY.
14.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Fooji agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services or the Agreement and prior versions of the Agreement, including claims and disputes that arose between us before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and Fooji may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Fooji may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of this Agreement.
14.2 Informal Dispute Resolution. There might be instances when a Dispute arises between you and Fooji. If that occurs, Fooji is committed to working with you to reach a reasonable resolution. You and Fooji agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Fooji therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Fooji that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to help@fooji.com or regular mail to our offices located at Fooji, Inc., 257 E. Short Street, Suite 200, Lexington, KY 40507. The Notice must include: (1) your name, telephone number, mailing address, email address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
14.3 Waiver of Jury Trial. YOU AND FOOJI HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Fooji are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
14.4 Waiver of Class or Other Non-Individualized Relief. YOU AND FOOJI AGREE THAT, EXCEPT AS SPECIFIED IN the subsection entitled “Batch Arbitration”, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.Subject to this Arbitration Agreement, the arbitrator 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 the party's individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Fooji agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of Kentucky. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Fooji from participating in a class-wide settlement of claims.
14.5 Rules and Forum. The Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Fooji agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and Fooji otherwise agree, or the Batch Arbitration process discussed in the subsection entitled “Batch Arbitration”is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules.
You and Fooji agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
14.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the State of Kentucky and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under the subsection entitled “Batch Arbitration” is triggered, the AAA will appoint the arbitrator for each batch.
14.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator.The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
14.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Fooji need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys' fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
14.9. Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Fooji agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Fooji by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Fooji.
You and Fooji agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
14.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: Fooji, Inc., 257 E. Short Street, Suite 200, Lexington, KY 40507, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
14.11 Invalidity, Expiration. Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Fooji as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
14.12 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Fooji makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Fooji at Fooji, Inc., 257 E. Short Street, Suite 200, Lexington, KY 40507, your continued use of the Services following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products distributed through the Services or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted the Agreement (or accepted any subsequent changes to Agreement) remain in full force and effect. Fooji will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
15. Electronic Communications and Optional Fooji Text Messages.
15.1 Electronic Communications. The communications between you and Fooji use electronic means, whether you visit the Fooji Properties or send Fooji e-mails, or whether Fooji posts notices on the Fooji Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Fooji in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Fooji provides to you electronically satisfy any legal requirements that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
15.2 Marketing Communications. If you opt-in to receiving text or SMS messages and provide Fooji with your mobile number, we will send you invitations and reminders to participate in sweepstakes and other Promotions. Unless otherwise specified prior to opting in, these messages will be limited to single Campaigns. Fooji is not liable for any delayed or undelivered messages. Message and data rates may apply for any messages sent, either by us or by you. You will no longer receive messages after the particular sweepstakes or Promotion for which you signed up has been concluded. If you have any questions about your text plan or data plan, or any delayed or undelivered messages, contact your wireless provider. For any additional questions you have regarding privacy, please review our Privacy Policy at https://fooji.com/privacy.
15.3 How to Opt-Out. If we send marketing short-code SMS messages or other marketing texts and you wish to opt out of receiving such marketing short-code SMS messages or texts, you may opt-out, for short-code SMS messages, by following the instructions in Section 15.4, or for other texts, by emailing us at help@fooji.com and indicating your intent to opt-out of marketing texts.
15.4 Short-Code SMS Services. You may opt out of receiving short-code SMS messages from Fooji at any time by texting the word "STOP" to the short-code you received the message from. After you send the “STOP” message, we will send you a single message confirming that you have been unsubscribed. After this, you will no longer receive text or SMS messages from us, unless you affirmatively opt-in at a later time.
16. General
16.1 Release. You hereby release Fooji Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Fooji Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the Fooji Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his favor at the time of executing the release, and that if known by him or her would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Fooji Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.
16.2 Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Fooji’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
16.3 Force Majeure. Fooji shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
16.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Fooji Properties, please contact us at: Fooji, Inc., 257 E. Short Street, Suite 200, Lexington, KY 40507, or email address at help@fooji.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
16.5 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Fooji agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Kentucky.
16.6 Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of KENTUCKY, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
16.7 Notice. Where Fooji requires that you provide an e-mail address, you are responsible for providing Fooji with your most current e-mail address. In the event that the last e-mail address you provided to Fooji is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Fooji’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Fooji at the following address: Fooji, Inc., 257 E. Short Street, Suite 200, Lexington, KY 40507. Such notice shall be deemed given when received by Fooji by letter delivered by a nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
16.8 Waiver. Except as expressly set forth herein, any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
16.9 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
16.10 Export Control. You may not use, export, import, or transfer the Fooji Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Fooji Properties, and any other applicable laws. In particular, but without limitation, the Fooji Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Fooji Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Fooji Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Fooji are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Fooji products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
16.11 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
16.12 Entire Agreement. The Terms are the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merge all prior discussions between the parties with respect to such subject matter.