9. Warranty Disclaimers

(a) THE SERVICES ARE PROVIDED FOR YOUR CONVENIENCE, “AS IS” AND “AS AVAILABLE”, AND THUMZUP, AND OUR LICENSORS AND SUPPLIERS, EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND NON-INFRINGEMENT.

 

(b) THUMZUP, AND OUR LICENSORS AND SUPPLIERS, MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH ANY NETWORK, OR YOUR COMPUTER OR MOBILE DEVICE; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THUMZUP OR THOUGH THE SERVICES, SHALL CREATE ANY WARRANTY.

 

(c) THUMZUP DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH, OR IN CONNECTION WITH, THE SERVICES, OR ANY HYPERLINKED WEBSITE OR SERVICE, AND THUMZUP WILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF SUCH PRODUCTS OR SERVICES.

 

(d) THUMZUP MAKES NO REPRESENTATIONS CONCERNING ANY CONTENT, INCLUDING USER SUBMISSIONS, CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND THUMZUP WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES. THUMZUP MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH THE SERVICES.

 

(e) THE SERVICES MAY PROVIDE YOU INFORMATION REGARDING PERIPHERALS THAT MAY BE USED IN CONNECTION WITH THE SERVICES. THE TYPE OF PERIPHERALS MAY CHANGE FROM TIME TO TIME. WITHOUT LIMITING THE GENERALITY OF THE DISCLAIMERS ABOVE, ALL SUCH INFORMATION IS PROVIDED FOR YOUR CONVENIENCE, “AS IS” AND “AS AVAILABLE”. THUMZUP DOES NOT REPRESENT, WARRANT, OR GUARANTEE THAT SUCH INFORMATION WILL BE AVAILABLE, ACCURATE, OR RELIABLE.

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10. Other Disclaimers

WHEN YOU INSTALL, SETUP OR USE THE SERVICES YOU MAY BE GIVEN THE OPPORTUNITY TO CHANGE DEFAULTS OR CHOOSE PARTICULAR SETTINGS. THE CHOICES YOU MAKE CAN CAUSE NON-RECOMMENDED OR UNINTENDED OPERATION OR NON-OPERATION OF THE SERVICES AND ANY CONNECTED EQUIPMENT OR SYSTEMS. YOU ASSUME ALL LIABILITY FOR ANY DAMAGES AND LOSSES CAUSED BY, OR RELATED TO, THE CHOICES YOU MAKE FOR THE PARTICULAR SETTINGS FOR THE SERVICES, AND SETTING OR CHANGING DEFAULTS.

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11. Limitation of Liability

Nothing in these Terms and, in particular, within this “Limitation of Liability” clause, shall be interpreted or construed to limit or exclude liability that cannot be so limited or excluded under applicable law.

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TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE WARRANTY AND OTHER DISCLAIMERS IN THESE TERMS, IN NO EVENT WILL (A) THUMZUP BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOST DATA, ADVERTISER CONTENT, LOST ADVERTISER CONTENT OR USER SUBMISSIONS PENDING APPROVAL, OR LOST PROFITS ARISING FROM OR RELATING TO THE SERVICES, EVEN IF THUMZUP KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) THUMZUP’S TOTAL CUMULATIVE LIABILITY FOR ANY DIRECT DAMAGES, PROPERTY DAMAGE, PERSONAL INJURY, LOSS OF LIFE OR ANY OTHER DAMAGES NOT EXCLUDED OR PRECLUDED PURSUANT TO (A) ABOVE, ARISING FROM OR RELATED TO THE SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL BE LIMITED TO AN AMOUNT NEVER TO EXCEED THE FEES ACTUALLY PAID BY YOU TO THUMZUP FOR THE SERVICES AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. THUMZUP DISCLAIMS ALL LIABILITY OF ANY KIND OF THUMZUP’S LICENSORS AND SUPPLIERS. UNDER NO CIRCUMSTANCES WILL THUMZUP BE LIABLE IN ANY WAY FOR ANY CONTENT, INCLUDING, BUT NOT LIMITED TO, (X) ANY ERRORS OR OMISSIONS IN ANY CONTENT, (Y) CONTENT IN VIOLATION LAW, RULE, REGULATIONS, OR REGULATORY GUIDANCE, (Z) OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED IN CONNECTION WITH USE OF, OR EXPOSURE TO, ANY CONTENT POSTED, EMAILED, ACCESSED, TRANSMITTED OR OTHERWISE MADE AVAILABLE VIA THE SERVICES.

 

YOU UNDERSTAND AND AGREE THAT THIS LIMITATION OF LIABILITY IN THIS SECTION 11 SHALL APPLY EVEN IF THUMZUP IS FOUND LIABLE FOR ANY LOSS OR DAMAGE DUE TO BREACH OF CONTRACT, BREACH OF EXPRESS OR IMPLIED OR WARRANTY, NEGLIGENCE OF ANY KIND OR DEGREE, STRICT PRODUCT LIABILITY, SUBROGATION, INDEMNIFICATION OR CONTRIBUTION, OR ANY OTHER THEORY OF LIABILITY. HOWEVER, THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO ANY WILLFUL, WANTON, INTENTIONAL OR RECKLESS MISCONDUCT OF THUMZUP OR GROSS NEGLIGENCE OF THUMZUP IN THOSE STATES THAT DO NOT PERMIT LIMITATION OF LIABILITY FOR GROSS NEGLIGENCE.

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12. DISPUTE RESOLUTION AND ARBITRATION/CLASS ACTION WAIVER/JURY TRIAL WAIVER/WAIVER OF PUNITIVE DAMAGES

PLEASE READ THIS SECTION CAREFULLY. FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS.

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(a). Arbitration. Thumzup and you agree to arbitrate all disputes and claims that arise from or relate to these Terms or the Services in any way, except for claims arising from bodily injury. THIS ARBITRATION IS MANDATORY AND NOT PERMISSIVE. This agreement to arbitrate is intended to be broadly interpreted, including, for example:

• claims arising out of or relating to any aspect of the relationship between us that is created by or involves these Terms or the Services, regardless of the legal theory;

• claims for mental or emotional distress or other emotional/mental injury arising from the relationship between us;

• claims that arose before you accepted these Terms (such as claims related to disclosures or the marketing of the Services, or the process for seeking approval to use the Services);

• claims that may arise after the termination of your use of the Services or any agreement between us; and

• claims brought by or against our respective subsidiaries, parent companies, members and affiliates, as well as the respective officers, directors, employees, agents, predecessors, successors and assigns of these entities, you, and Thumzup.

 

This arbitration agreement does not preclude either of us from bringing an individualized action in small claims court. It also does not preclude either of us from seeking an individualized preliminary injunction or temporary restraining order, pending arbitration, in any court that has jurisdiction. Nor does this arbitration agreement bar you from bringing issues to the attention of federal, state or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf. In addition, you or Thumzup may seek injunctive or other equitable relief to protect your or its trade secrets and intellectual property rights or to prevent loss or damage to its services in any court with competent jurisdiction.

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TO THE FULLEST EXTENT PERMITTED BY APPLICABLE, LAW, YOU UNDERSTAND AND AGREE THAT WE ARE EACH (A) WAIVING THE RIGHT TO A TRIAL BY JURY; (B) WAIVING THE RIGHT TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION; AND (C) WAIVING THE RIGHT TO CLAIM OR RECOVER PUNITIVE DAMAGES AGAINST THE OTHER. These Terms evidence a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision.

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(b) Notice of Disputes. If either of us intends to seek arbitration of a dispute, that party must provide the other with notice in writing. The notice to Thumzup should be sent to legal@thumzupmedia.com.  Thumzup will send notice to you at the email and/or mailing addresses associated with your account. Your notice to Thumzup must (a) provide your name, mailing address, and email address; (b) describe the dispute; and (c) state the relief you are requesting. If we are unable to reach an agreement to resolve the dispute within 60 days after the notice is received, you or we may commence arbitration.

 

(c) Arbitration Procedures. The arbitration will be governed by the Consumer Arbitration Rules (“AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879. If the AAA is unavailable, the parties shall agree to another arbitration provider or the court shall appoint a substitute. Unless you and we agree otherwise, any arbitration hearings will take place in the county (or parish) where you are receiving Services. If the value of your claim is USD $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, by telephone, or by an in-person hearing. If the value of your claim exceeds USD $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of this arbitration provision or the arbitrability of disputes are for the court to decide. The arbitrator may consider, but is not bound by, rulings in other arbitrations between Thumzup and Thumzup users. The arbitrator can award the same individualized damages and relief that a court can award. Judgement on the award may be entered by any court having jurisdiction.

 

(d) Costs of Arbitration. The AAA’s fee schedule is subject to change and may be found in the AAA Rules (available online at www.adr.org or by calling the AAA at 1-800-778-7879). Thumzup will pay all AAA filing, administrative and arbitrator fees for any arbitration that Thumzup commences. If you provided Thumzup with 60 days’ notice of your intent to arbitrate before commencing arbitration and the value of your claim is USD $75,000 or less, Thumzup will pay your share of any such AAA fees. If the value of your claim exceeds USD $75,000, the allocation of AAA fees will be governed by the AAA Rules (unless the law of your state requires Thumzup to pay all such fees). If, however, the arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards in Federal Rule of Civil Procedure 11(b)), then the payment of all AAA fees shall be governed by the AAA Rules. In such cases, the arbitrator may direct you to reimburse Thumzup for amounts that Thumzup paid on your behalf.

 

(e) No Class Arbitration. 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 that party’s individual claim. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND THUMZUP AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED GROUP LITIGATION OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless all affected parties agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or group proceeding. If a court decides that applicable law precludes enforcement of any of this subsection’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.

 

(f) 30-Day Opt-Out Period. If you do not wish to be bound by the arbitration and class-action waiver provisions in this Section 12, you must notify Thumzup in writing within 30 calendar days of the date that you first accept these Terms (unless a longer period is required by applicable law). Your written notification must be sent to Thumzup at the following address: legal@thumzupmedia.com.  Subject to Section 12(g) below, if you do not notify Thumzup in accordance with this Section 12(f), you agree to be bound by the arbitration and group litigation waiver provisions of these Terms, including such provisions in any Terms revised after the date of your first acceptance.

 

Such notification must include: (a) your name, (b) your Thumzup account email address, (c) your mailing address and (d) a statement that you do not wish to resolve disputes with Thumzup through arbitration. This notification affects these Terms only; if you previously entered into other arbitration agreements with Thumzup or enter into other such agreements in the future, your notification that you are opting out of the arbitration provision in these Terms shall not affect the other arbitration agreements between you and Thumzup.

 

(g) Future Changes to Arbitration Provision. If Thumzup makes any changes to the Dispute Resolution and Arbitration Section of these Terms (other than a change to the address at which Thumzup will receive notices of dispute, opt-out notices or rejections of future changes to the Dispute Resolution and Arbitration Section), you may reject any such change by sending us written notice within 30 calendar days of the change to:  legal@thumzupmedia.com.  It is not necessary to send us a rejection of a future change to the Dispute Resolution and Arbitration Section of these Terms if you had properly opted out of the arbitration and group litigation waiver provisions in this Section 12 within the first 30 calendar days after you first accepted these Terms. If you have not properly opted out of the arbitration and group litigation waiver provisions in this Section 12, by rejecting a future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this arbitration provision, as modified by any changes you did not reject.

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13. Digital Millennium Copyright Act

(a) If you are a copyright owner or an agent thereof and believe that any Advertiser Content infringes your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C. §512[c][3] for further details): (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) Identification of the copyrighted work claimed to have been infringed or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed, or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material; (iv) Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number and, if available, an electronic mail; (v) A statement that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (vi) A statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

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