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“Service(s)” include any content, functionality, and services offered on or through the website located at fohr.co and its subdomains (the “Site”), including, but not limited to the Discovery platform (“Discovery”), Bulletin (“Bulletin”), and the Ambassador Management Platform (“AMP”), whether you access them as a browser, customer, contributor of content, or as a registered user. Please read the following terms and conditions (hereafter “Agreement”) carefully before you start to use the Service, as they form the entire agreement between you (sometimes referred to herein as " You" or " Your" or " User") and Fohr Card Inc (“Fohr” or "we" or "us" or “our”). When accessing the information available through the Services, creating an account (“Account”) or purchasing a subscription (“ Subscription”) to the Services, you agree to all of the terms and conditions of this Agreement. You must agree to abide by all of the terms and conditions contained in this Agreement in order to become or remain an authorized user of the Services.
By using the Services, you represent and warrant that you are competent to form a binding contract with us. Specifically, you must be thirteen (13) years old to register an Account as an Influencer (as defined below), and you must be eighteen (18) years old to register an Account for Discovery, Bulletin, or AMP.
IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS OR DO NOT MEET THE REQUIREMENTS ABOVE, PLEASE STOP USING THE SERVICES. YOU MAY NOT USE THE SERVICES AND SHOULD NOT PROCEED TO CREATE ANY ACCOUNTS OR ACQUIRE ANY SUBSCRIPTIONS TO THE SERVICES IF YOU DO NOT AGREE TO THESE TERMS. BY USING THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT, INCLUDING ALL AMENDMENTS MADE HERETO FROM TIME TO TIME.
THIS AGREEMENT CONTAINS (1) AN ARBITRATION AGREEMENT; AND (2) A WAIVER OF RIGHTS TO BRING A CLASS ACTION LAWSUIT AGAINST US, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW. BY USING OUR SERVICES, YOU AGREE TO THESE PROVISIONS.
Description of the Products and Services
To use the Services, individuals may register as influencers (“Influencers”) that can be found on Discovery by creating an Account and connecting their social-media accounts to their Account. Once registered, Influencers may be contacted from time to time regarding opportunities with brands and may apply for opportunities via Fohr’s Ambassador Management Platform (“AMP”) and Fohr’s Bulletin.
Users who contract with Fohr (a “Licensee”) are also able to use the Services and access the Site under a Subscription as outlined in an order form with Fohr.
Fohr’s campaign management tools make up a suite of tools developed, maintained, hosted, and operated by Fohr to manage and track the performance of marketing campaigns for Fohr’s brand clients. The Services include the following offerings:
Fohr’s Pixel dashboard is a dashboard developed, maintained, and operated by Fohr that shows the sales performance of a client’s products or services related to marketing campaigns run by Fohr.
Fohr Discovery platform is a searchable influencer database developed, maintained, hosted, and operated by Fohr used by Fohr’s brand clients and software customers to source Influencers for marketing initiatives, communicate with influencers, and create and post Bulletins to Fohr’s influencer community through which they can invite influencers to participate in brand initiatives, provide information, or identify certain attributes about themselves that would be of interest to the brand.
Fohr’s Ambassador Management Platform (“AMP”) is a custom branded microsite developed, maintained, and operated by Fohr for Fohr’s software customers to manage relationships with influencers, invite influencers to apply to brand ambassador programs, review influencer social channel content and metrics, and review content created by influencers for the brand..
Fohr’s Bulletin is a custom landing page developed, maintained, hosted, and operated by Fohr for Fohr’s brand clients and software customers through which influencers can opt-in to brand opportunities, provide information to brands, or identify certain attributes about themselves that would be of interest to brands.
1. RIGHT TO USE
Your right to use the Services is subject to the limitations, conditions, and restrictions established by us from time to time, in our sole discretion. We may alter, suspend, or discontinue any aspect of the Services at any time, including the availability of any feature, database, or content. We may also impose limits on certain features and aspects of the Services or restrict your access to parts or all of the Services without notice or liability.
2. RESTRICTIONS ON USE
You are not to use the Services to: (a) engage in any fraudulent or otherwise unlawful conduct or in any other manner that could damage, disable, overburden or impair the Services; (b) upload, post, transmit, share, store, or otherwise make available any content the we deem (in our sole discretion) to be harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable; (c) upload, post, transmit, share or otherwise make available any material that contains software viruses or any other malicious or tracking computer code, files or programs designed to track, interrupt, destroy or limited the functionality of any computer software or hardware or telecommunications equipment; (d) upload, post, transmit, share, store or otherwise make available content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law; (e) decompile, disassemble, circumvent the security of, or derive the source code of the Services, or remove any proprietary notices contained in the Services’ code; (f) use any automated means to access the Services or collect any information from the Services (including, without limitation, robots, spiders, scripts, or other automatic devices or programs); (g) frame the Site, utilize framing techniques to enclose any Services content or other proprietary information, place pop-up windows over this Site’s pages, or otherwise affect the display of this Site’s pages; (h) engage in the practices of “screen scraping,” “database scraping” or any other activity with the purpose of obtaining content or other information; (i) use the Services to collect or derive any contact information of users or upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of commercial or non-commercial solicitation or bulk communications of any kind to any company member or third party; (j) use data provided by us for any competing uses or purposes; or (k) use the Services in any manner that infringes upon our rights, violates applicable law or that could damage, disable, overburden, or impair these Services or interfere with any other party’s use and enjoyment of these Services.
We may terminate, disable or throttle your access to, or use of, the Services at any time without notice for any reason, with or without cause at Fohr’s sole discretion.
The following provisions of this Agreement shall survive termination of your use or access to the Services: the sections concerning “intellectual property,” “proprietary use of information,” “disclaimer of warranties,” “limitation of liability/indemnity,” and “miscellaneous,” and any other provision that by its terms survives termination of your use or access to the Services.
3. AVAILABILITY OF SERVICES
By using the Services, you acknowledge that you are using a web-based platform that relies on user-generated content and that, while Fohr takes reasonable actions for the Services to remain functional and up to date, interruptions do happen, for any reason or no reason, including for routine maintenance. You are solely responsible for obtaining Internet or data network access necessary to use the Services and any updates thereto. We do not guarantee that the Service, or any portion thereof, will function on any particular hardware or device or that the use of the Service will be uninterrupted or free from delays or malfunctions. Fohr retains the right at its sole discretion to deny access to part or all of the Service to anyone, at any time and for any reason. You understand and acknowledge that due to circumstances both in our control and not in our control, access to the Service may be interrupted, suspended, or terminated.
4. TRANSMISSION OF INFORMATION
Fohr does not control the Internet, or its security, or that of other networks you use to access the Services. Except as otherwise required by applicable law, Fohr is not, and cannot be responsible for the security of information that you choose to communicate with Fohr via the Services. Nor are we responsible for any data lost during transmission.
We process personal data in accordance with our Privacy Policy, and by using the Services you consent to such processing. For specific information regarding Fohr’s collection, use or disclosure of your personal information, please refer to our Privacy Policy available at fohr.co/privacy. You acknowledge and agree that your use of the Services is subject to our Privacy Policy.
5. CREATING AN ACCOUNT AND SUBSCRIPTIONS
To create an Account, users must provide a valid name and email address. Licensee’s will be required to provide their entity name (if applicable), a contact name or names, a contact phone number, email address, and mailing address. Additionally, Licensee’s, for purposes of payment, shall be required to provide payment details. Influencers may, optionally, provide additional information such as birthday, gender, phone number, and address.
Each user, whether a Licensee or an Influencer, may only create and hold one Account on Fohr. For Licensees, each Account may have multiple Subscriptions associated with it. You are solely responsible for all uses of your Account, and, for Licensees, all associated Subscriptions. You must treat all Account and Subscription passwords, user names, and the like as confidential and you must not disclose them to any other person or entity. You also acknowledge that your Account and, for Licensees, each associated Subscription is personal to you or the organization creating the Account and you agree not to provide any other person with access to the Services using your name, password, or any other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security.
Account Security. Each Account and all associated Subscriptions, if any, are non-transferrable and may not be sold, traded, combined, or otherwise shared with any other person. If you violate any of these limitations we may terminate your Account at our discretion and without limitation. Should we terminate your Account, you automatically forfeit lists or information other compilations created through the Services, and you may not re-enroll or re-join under a new Account unless invited to re-join by us. If you commit fraud or falsify information in connection with your use of the Services or in connection with your Fohr Account or Subscriptions, your Account will be terminated immediately. We reserve the right to hold you liable for any and all damages that Fohr or our users may suffer, to pursue legal action through all available law enforcement authorities, and to notify your Internet Service Provider of any fraudulent activities associated with you or with your use of the Services.
Service Subscription Fees. You will be responsible for payment of the applicable fee for any Subscriptions as detailed in an order form (each, a "Service Subscription Fee") at the time you create your Account (each, a "Service Commencement Date"). Except as set forth in the Agreement, all fees for the Subscription are non-refundable.
Term. Your Subscription will continue indefinitely until terminated in accordance with the terms specified in any agreement or order form(s); the terms of which are hereby incorporated into this Agreement . Unless otherwise stated in an order form, after your initial Subscription period, and again after any subsequent Subscription period, your Subscription will automatically commence on the first day following the end of such period (each, a "Renewal Commencement Date") and continue for an additional equivalent period, at Fohr's then-current price for such Subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your Subscription before your Renewal Commencement Date. If you do not wish your Subscription to renew automatically, or if you want to change or terminate your Subscription, please contact Fohr at support@fohr.co or log in and go to the "Change/Cancel Membership" page on your "Account Settings" page. If you cancel your Subscription, you may use your Subscription until the end of your then-current Subscription term; your Subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the Service Subscription Fee paid for the then-current Subscription period. Upon renewal of your Subscription, if Fohr does not receive payment, you agree that Fohr may either terminate or suspend your Subscription, and continue to attempt to charge your payment method until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new Subscription commitment period will begin as of the day payment was received).
Free Trials and Other Promotions. Any free trial or other promotion that provides a User access to the Services otherwise provided for under a Subscription must be used within the specified time of the trial. At the end of the trial period, your use of those Services will expire and any further use of the Service is prohibited unless you pay the applicable Service Subscription Fee. If you are inadvertently charged for a Subscription, please contact Fohr to have the charges reversed.
Third Party Payment Processor. Fohr may use Stripe, Inc. ("Stripe") as third party service providers for payment services (e.g., card acceptance, merchant settlement, and related services). By subscribing to a Subscription, you agree to be bound by Stripe's Privacy Policy: https://www.stripe.com/privacy, and hereby consent and authorize Fohr and Stripe to share any information and payment instructions you provide with one or more third party service provider(s) to the minimum extent required to complete your transactions.
6. MODIFICATION
We may revise this Agreement from time to time at our sole discretion. All changes are effective immediately when we post them to the Services, and apply to all access and use of the Services thereafter. Your continued use of the Services following the posting of revised Agreement means that you accept and agree to the changes. You are expected to check this page frequently so that you are aware of any changes as they are binding on you. If you do not agree to the changes as we have made them; discontinue use of Fohr immediately. Continued use after notice of the changes will constitute acceptance in full, of the terms. Finally, do not attempt to modify these terms, in whole or in part. Any modification by you will be void and have no effect.
7. INTELLECTUAL PROPERTY
You acknowledge that Fohr owns all rights, title, and interest (including patent rights, copyrights, trade secret rights, mask work rights, trademark rights, sui generis database rights, and all other intellectual property rights of any sort throughout the world) in the Services, and in any and all versions (whether or not patentable), works of authorship, mask works, designations, designs, know-how, ideas, and information made or conceived or reduced to practice, in whole or in part, subsisting therein (collectively, “Intellectual Property”). Such ownership shall include rights in any advertising materials, websites, and their reproductions, further versions, revisions, and/or derivative works of the Services. Any goodwill existing or created as part of this Agreement shall inure to the benefit of Fohr only. Except as may be expressly granted herein, and necessary for your use of the Services, Fohr grants you no right, license, title, or interest in or to any of Fohr Intellectual Property. You shall not copy without authorization, translate, reverse engineer, decompile, disassemble, or make derivative or transformative works of Fohr Intellectual Property. Furthermore, you may not allow others to access or utilize your Account or Subscriptions to access Fohr. Fohr reserves all rights not specifically granted.
The following uses of Fohr Intellectual Property are permitted:
8. PROPRIETARY USE OF INFORMATION
The Services contain public information and information provided to us by third parties, which is compiled in a manner which is proprietary to us. We assert all applicable protection in the information presented through the Services. Any information shared or posted by us is protected whether or not it is identified as proprietary to us. You agree not to modify, copy, or distribute any such information in any manner whatsoever without having first received the express permission of the owner of such information. The name of the Services, and all parts of the Services, regardless of their name, are service marks of or under license to Fohr. No use of these marks shall be permitted except through the prior written authorization and permission of Fohr or the licensor of the mark. All rights not expressly granted herein are reserved.
9. COPYRIGHT POLICY AND DMCA
We voluntarily observe and comply with the United States' Digital Millennium Copyright Act. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; (b) description of the copyrighted work or other intellectual property that you claim has been infringed; (c) a screenshot and description of where the material that you claim is infringing is located on a Site; (d) your address, telephone number, and email address; (e) a 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 (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf. Please send the above information to the following address: dmca@FohrCard.com.
10. UNSOLICITED IDEAS
Fohr does not accept unsolicited ideas for the Service or business practices from users, nor do we review such submissions. Any such submissions will become property of Fohr upon submission. Fohr shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
11. USER WARRANTIES
By creating an Account on Fohr, and/or creating an associated Subscription or accessing information as part of the Services, you warrant and agree that you: (a) possess the authority to create a binding legal obligation, on behalf of yourself personally, or if you are creating an Account in the name of an entity or organization, that you have the authority to do so, and are not impaired in this ability; (b) that all the information you provide to Fohr is only about yourself, or the Account-holder entity, and that all of such information is accurate, true, current, and complete; (c) your use of the Service will always comply with the terms of this Agreement, and your Account and or Subscriptions will be the use of each Account only; and (d) you will remain responsible for all uses of your Subscription, safeguard your password, and supervise the use of your Subscription.
12. SOCIAL MEDIA CONNECTIONS & LINKS TO THIRD PARTY WEBSITES OR RESOURCES
Influencers may be able to link their Account with a valid account on a third-party social networking, email or content service such as Facebook, Instagram, YouTube, or Twitter, (such service, a “Third-Party Service” and each such account, a “Third-Party Account”) by allowing Fohr 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 Fohr and grant Fohr 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 Fohr to pay any fees or making Fohr subject to any usage limitations imposed by such third-party service providers.
The Services may contain links to third party websites or other resources. We provide access only as a convenience and are not responsible for the content, products or services on or available from those resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from your use of any third party resources. Such third party sites and third party content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any third party sites or third party content accessed through the Services, including without limitation the content, accuracy, offensiveness, opinions, reliability or policies of or contained in the third party sites or the third party content. Inclusion of or linking to any third party or any third party content does not imply approval or endorsement thereof by us. If you decide to leave the site and access the third party sites, you do so at your own risk and you should be aware that our terms and policies no longer govern.
13. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE AND EXCLUSIVE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS, WITH ALL FAULTS," AND "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION: THE AVAILABILITY, ACCURACY OF CONTENT OR MATERIALS, INFORMATION, OR SERVICE, AND THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FOHR EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES. THE ENTIRE RISK AS TO THE QUALITY AND TIMELINESS OF THE INFORMATION, AND ALL SERVICES PROVIDED BY FOHR IS BORNE EXCLUSIVELY BY YOU. ADDITIONALLY, THERE ARE NO WARRANTIES AS TO THE RESULTS OF YOUR USE OF THE SERVICES CONTENT. FOHR USES PUBLIC DATA AND INFORMATION PROVIDED TO US BY THIRD PARTIES IN ORDER TO COMPILE THE SERVICES. AS SUCH, FOHR RELIES ON THE PROVIDERS OF THIS INFORMATION FOR ITS ACCURACY AND CURRENTNESS. FOHR MAKES NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES FOHR MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE. SHOULD THE SERVICE, IN ALL OF ITS FORMS PROVIDED BY FOHR, PROVE DEFECTIVE AND/OR CAUSE ANY DAMAGE TO YOUR COMPUTER OR INCONVENIENCE TO YOU; YOU, AND NOT FOHR, ASSUME THE ENTIRE COST AND ALL DAMAGES WHICH MAY RESULT DIRECTLY AND INDIRECTLY FROM ANY AND ALL SUCH DEFECTS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT. REFERENCE TO ANY PRODUCTS, SERVICES, PROCESSES OR OTHER INFORMATION, BY TRADE NAME, TRADEMARK, MANUFACTURER, SUPPLIER, OR OTHERWISE DOES NOT CONSTITUTE OR IMPLY ENDORSEMENT, SPONSORSHIP OR RECOMMENDATION THEREOF, OR ANY AFFILIATION THEREWITH, BY THE COMPANY. USERS IN STATES WHICH DO NOT ALLOW EXCLUSIONS OF IMPLIED WARRANTIES MAY HAVE DIFFERENT LEGAL RIGHTS, WHICH MAY VARY BY JURISDICTION. UNDER NO CIRCUMSTANCES, AND UNDER NO CAUSE OF ACTION OR LEGAL THEORY, SHALL FOHR, ITS AFFILIATE BLOGGERS, OR OTHER PARTIES, BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL COMMERCIAL DAMAGES RESULTING FROM ANY USE OF MATERIALS OR OTHER USE OF THE SERVICE. UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES OR PUNITIVE DAMAGES. YOU AGREE THAT FOHR MAXIMUM LIABILITY TO YOU FOR BREACH OF THIS AGREEMENT, OR FOR ANY OTHER REASON, SHALL BE LIMITED TO THE AMOUNT YOU PAID, IF ANY, FOR USE OF THE SERVICE DURING THE PREVIOUS SIX (6) MONTHS FROM THE DATE OF THE BREACH.
14. LIMITATION OF LIABILITY/ INDEMNITY
WE ARE NOT RESPONSIBLE FOR ANY NORMAL, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, DIRECT, OR INDIRECT DAMAGES OF ANY KIND WHATSOEVER, WHICH MAY ARISE OUT OF OR RELATE TO YOUR USE OF THE SERVICE, INCLUDING BUT NOT LIMITED TO LOST REVENUES, PROFITS, BUSINESS OR DATA, OR DAMAGES RESULTING FROM ANY VIRUSES, WORMS, "TROJAN HORSES," OR OTHER DESTRUCTIVE SOFTWARE OR MATERIALS, OR ANY INTERRUPTION OR SUSPENSION OF THE SERVICE, REGARDLESS OF THE CAUSE OF THE INTERRUPTION OR SUSPENSION. NOR ARE WE LIABLE FOR ANY NORMAL, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, DIRECT, OR INDIRECT DAMAGES AS A RESULT OF THE USE OF THE INFORMATION PROVIDED THROUGH SERVICE. ANY LIABILITY OF FOHR SHALL BE STRICTLY LIMITED TO THE GREATER OF (A) THE AMOUNT YOU PAID FOR SUBSCRIPTIONS TO THE SERVICE DURING THE SIX (6) MONTHS PRECEDING A BREACH OF THIS AGREEMENT BY FOHR, AND (B) US$100. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FOHR AND YOU. FOHR MAY DISCONTINUE OR CHANGE THE SERVICE OR ITS AVAILABILITY TO YOU AT ANY TIME, AND YOU MAY STOP USING THE SERVICE AT ANY TIME. YOU AGREE TO INDEMNIFY US, OUR OFFICERS, MEMBERS, EMPLOYEES AND AGENTS, FROM ANY LOSS OR DAMAGE, INCLUDING BUT WITHOUT LIMITATION TO REASONABLE ATTORNEYS’ FEES BOTH AT TRIAL AND APPELLATE LEVELS, THE EXPENSES, AND COSTS WHICH WE MAY SUFFER FROM YOUR ACTIVITIES ON OR USE OF THE SERVICE, OR AS A RESULT OF THE USE OF THE INFORMATION PROVIDED THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION ANY BREACH BY YOU OF THIS AGREEMENT OR ANY CHARGES OR COMPLAINTS MADE BY OTHER PARTIES AGAINST YOU. YOU SHALL COOPERATE AS FULLY AS REASONABLY REQUIRED IN THE DEFENSE OF ANY CLAIM. WE RESERVE THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU; PROVIDED, HOWEVER, THAT YOU SHALL REMAIN LIABLE FOR ANY SUCH CLAIM. FOHR MAY TERMINATE THIS AGREEMENT AT ANY TIME. WITHOUT LIMITING THE FOREGOING, FOHR SHALL HAVE THE RIGHT TO IMMEDIATELY TERMINATE OR SUSPEND ANY OF YOUR PASSWORDS, ACCOUNTS OR SUBSCRIPTIONS IN THE EVENT FOHR CONSIDERS, IN ITS SOLE DISCRETION, ANY OF YOUR CONDUCT TO BE UNACCEPTABLE, OR IN THE EVENT YOU BREACH THIS AGREEMENT. NOTWITHSTANDING THE ABOVE, THESE TERMS OF USE WILL SURVIVE TERMINATION OF THIS AGREEMENT.
15. JURISDICTION/DISPUTES/CHOICE OF LAW
15.1 JURISDICTION
This Agreement and all matters arising out of or otherwise relating to these terms and conditions shall be governed by the laws in effect in the State of New York, without regard to its conflict of law provisions. You hereby submit to the personal jurisdiction of the state and federal courts of the State of New York for resolution of all disputes. You hereby agree that exclusive venue for any litigation under this Agreement shall be with any federal, state, or county court located in New York County, New York. Except as stated below, each party shall be liable for their own attorneys’ fees, expenses, and costs both at trial and appellate levels.
15.2 MANDATORY ARBITRATION
THIS SECTION AFFECTS YOUR RIGHTS, PLEASE READ CAREFULLY BEFORE AGREEING TO THESE TERMS OF SERVICE BY USING THE SERVICES OR THE SITE.
To the extent permitted by all applicable law, all disputes arising from or in connection with this Agreement shall be settled or resolved by binding arbitration under the Commercial Arbitration Rules (the “Commercial Rules”) of the American Arbitration Association (“AAA”), rather than in court. Except as otherwise explicitly provided in this Section, this broadly includes: any claims based in contract, statute, tort, fraud, misrepresentation, equity or any other legal theory; initial claims, counterclaims, cross-claims, and third-party claims; federal, state, and local claims; and claims which arose before the date of this Agreement.
The arbitration shall take place in New York, New York before a single neutral arbitrator appointed in accordance with the Commercial Rules. The Commercial Rules are available at the AAA website: www.adr.org. The Federal Arbitration Act (“FAA”) and federal arbitration law apply to this Agreement. If AAA cannot serve, a court with jurisdiction shall select the arbitrator, who will apply the Commercial Rules and procedures specified in this Section.
Either you or we can initiate arbitration through AAA, an alternative dispute resolution provider, or by filing a motion to compel arbitration of claims filed in court. Regardless of who elected arbitration or how arbitration was elected, the party asserting the claim (i.e., the party seeking money damages or other relief from a court or an arbitrator) is responsible for starting the arbitration proceeding. There is not a judge or jury in arbitration and court review of an arbitration award is limited, but an arbitrator can award an individual the same damages and relief as a court and must apply and follow the terms of this Agreement as a court would. The arbitrator shall apply applicable statutes of limitations and honor privilege rules. Disputes or controversies about the validity, enforceability, coverage or scope of this Section or any part thereof are for a court and not an arbitrator to decide; however, disputes or controversies about the Agreement as a whole are for an arbitrator and not a court to decide. The arbitrator shall render a final decision pursuant to the Commercial Rules within thirty (30) days after filing of the claim. The final decision of the arbitrator shall be furnished to the parties in writing and shall constitute the conclusive determination of the issue in question binding upon the parties, and shall not be contested by any of them. Such decision may be used in a court of law only for the purpose of seeking enforcement of the arbitrator’s decision. The prevailing party shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief that such party may be entitled. For purposes of this Agreement, the prevailing party shall be that party in whose favor final judgment is rendered or who substantially prevails, if both parties are awarded judgment.
If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. Even if all parties have opted to litigate a claim in court, a party may elect arbitration with respect to any claim made by a new party or any claim later asserted by a party in that or any related or unrelated lawsuit (including a claim initially asserted on an individual basis but modified to be asserted on a class, representative or multi-party basis). Nothing in that litigation shall constitute a waiver of any rights under this Section. You and Fohr each agree that any disputes seeking to enforce or protect, or concerning the validity of intellectual property rights will not be subject to binding arbitration under this Section. In addition, pursuant to the Commercial Rules, any party may proceed with their individual claims in small claims court if that option is available in the applicable jurisdiction and the amount in controversy falls within the small claims court’s jurisdictional limits; but if that action is transferred, removed, or appealed to a different court, arbitration can be elected. If any portion of this Section is inconsistent with the Commercial Rules or other provisions of this Agreement, this Section shall govern. This Section shall survive termination of this Agreement and any bankruptcy by you, to the extent consistent with applicable bankruptcy law. No portion of this Section may be amended absent a written agreement signed by all parties. If any portion of this Section is deemed invalid or unenforceable, it shall not invalidate the remaining portions of this Section, except that: (A) If the Class Action Waiver set out below is limited, voided or found unenforceable, then this Section (except for this sentence) shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver; the parties acknowledge and agree that under no circumstances will a class action be arbitrated; and (B) if a claim is brought seeking public injunctive relief and a court determines that the restrictions in the Class Action Waiver or elsewhere in this Section prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such claim (and that determination becomes final after all appeals have been exhausted), the claim for public injunctive relief will be determined in court and any individual claims seeking monetary relief will be arbitrated. In such a case the parties will request that the court stay the claim for public injunctive relief until the arbitration award pertaining to individual relief has been entered in court. In no event will a claim for public injunctive relief be arbitrated. No arbitration award involving the parties will have any preclusive effect as to issues or claims in any dispute involving anyone who is not a party to the arbitration, nor will an arbitration award in prior disputes involving other parties have a preclusive effect in an arbitration between the parties to this Section.
15.3 RIGHT TO OPT OUT
If you do not want mandatory arbitration to apply to you, you must send Fohr a signed notice within 30 calendar days after you agree to be bound by this Agreement as described above. You must send the notice in writing (and not electronically) to Fohr Card Inc. Attn. "Terms of Service Mandatory Arbitration Opt Out", Fohr Card Inc., 72 Allen St., Third Floor, New York, New York 10002. You must provide your name, address, and phone number and state that you "opt out" of the Mandatory Arbitration Section within the Fohr Terms of Service. Opting out of this Mandatory Arbitration provision will not affect the other provisions of this Agreement. If you properly and timely opt out of Mandatory Arbitration as described herein, your opt out request will apply only to this Agreement and not any other agreement between us.
15.4 CLASS ACTION WAIVER
You and Fohr each agree that any arbitration will be conducted only on an individual basis and not as a class, consolidated or representative action. To the fullest extent permitted by law, (a) no arbitration will be joined or consolidated with any other; (b) there is no right or authority for any dispute to be arbitrated on a class-action or private attorney general basis or to utilize class action procedures; and (c) there is no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. No arbitrator shall have the authority to issue any relief that applies to any person or entity other than Fohr and/or you individually.
16. MISCELLANEOUS
Waiver by you of any breach or default or failure to exercise any right allowed under this Agreement constitutes a waiver of any prior, or subsequent breach, or default, and a waiver or forfeiture of any similar or future rights under this Agreement. The section headings used herein are for convenience only and shall be of no legal force or effect. If a court of competent jurisdiction holds any provision of this Agreement invalid, such invalidity shall not affect the enforceability of any other provisions contained in this Agreement, and the remaining portions of our Agreement shall continue in full force and effect. This Agreement and any other related terms constitute the sole and entire agreement between you and Fohr with respect to the Service and supersede all prior and contemporaneous understandings, representations, and warranties, both written and oral with respect to the Services.
17. AFFIRMATION OF AGREEMENT
You hereby acknowledge and affirm that you have read this entire Agreement and that you agree to be bound by all its terms and conditions by clicking where indicated on the Service registration page.
18. CONTACT INFORMATION
If you have any questions about this Agreement or the Services, please contact the Company at support@fohr.co.