Advertiser Terms of Service
Thumzup Media Corporation Advertiser Terms of Service
Updated: October 1, 2021
Thumzup Media Corporation (“Thumzup”) provides (1) the Thumzup website located at https://www.thumzupmedia.com/, and all associated Thumzup sites linked to such website (each a “Site” and collectively the “Sites”), and (2) services accessible through the Sites (“Web Apps”) for Advertisers to use and access the Thumzup media marketing tools and services (collectively, “Services”).
These Terms of Service (“Terms” or “Agreement”) govern your access to, and use of, the Services. Please read these Terms carefully. They require the use of mandatory binding arbitration to resolve disputes rather than jury trials or group litigation. Please follow the instructions in the Dispute Resolution and Arbitration Section (Section 12) below if you wish to opt out of this provision. The term “you” and “Advertiser”, as used in these Terms, means any individual or legal entity that uses or accesses the Services or any person or legal entity who creates an Account for marketing or advertising purposes through the Services. “Thumzup User”, as used in these Terms, means any person or legal entity who accesses or uses the Services and any person or legal entity who creates an Account to participate in, including posting on their social media account(s), an advertising or marketing campaign. These Terms give you specific legal rights. In addition, you may also have other legal rights which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, mandatory and binding arbitration, limitations of liability, indemnification, waiver of jury trial, waiver of class action and waiver of punitive damages under these Terms will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms may not apply to you.
THESE TERMS ARE A LEGAL AGREEMENT. BY ACCEPTING THESE TERMS THROUGH SETTING UP AN ACCOUNT OR BY ACCESSING AND USING THE SERVICES, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT IN CONNECTION WITH THE ACCESS AND USE. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE SERVICES AND TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD DELETE YOUR ACCOUNT AND CEASE ACCESSING OR USING THE SERVICES.
AS DESCRIBED BELOW, SECTIONS 3, 4 AND 5 DESCRIBE IMPORTANT LIMITATIONS OF THE SERVICES. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.
SECTION 12 “ DISPUTE RESOLUTION AND ARBITRATION/CLASS ACTION WAIVER/JURY TRIAL WAIVER/WAIVER OF PUNITIVE DAMAGES ” CONTAINS A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER THAT AFFECT YOUR LEGAL RIGHTS. If you are An Advertiser in the European Economic Area (“EEA”), or any other country that does not allow such arbitration agreement, Section 12 does not apply to you.
- Overview, Eligibility, Term and Termination
(a) Overview and Relation to Other Agreements. These Terms govern your use of the Services. Certain features of the Services may be subject to additional guidelines, terms or rules, which will be posted on the Services in connection with such features. All additional guidelines, terms or rules are incorporated by reference into these Terms and you are agreeing to accept and abide by them by using the Services.
(b) Eligibility. You may use the Services only if you have the legal capacity to form a binding contract with Thumzup; you accept these Terms through a Site or Web App, or by accessing or using the Services; and only if you are in compliance with these Terms and all applicable local, state/provincial, national and international laws, rules and regulations. Only individuals aged 18 and older are permitted to create an Account.
(c) Term and Termination. These Terms will remain in full force and effect as long as you continue to access or use the Services, or until terminated in accordance with the provisions of these Terms. At any time, Thumzup may, at our sole discretion, (i) suspend or terminate your rights to access or use the Services (including your Account), or (ii) terminate these Terms with respect to you if Thumzup in good faith believes that you have used or accessed the Services in violation of these Terms, including any incorporated guidelines, terms or rules.
(d) Effect of Termination. Upon termination of these Terms, your Account and your right to use the Services will automatically terminate. You understand that any termination of your Account may involve permanent deletion of your advertising campaign information or a Thumzup User’s User Submissions associated with your advertiser campaign. Advertiser agrees that Thumzup will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account, deletion of your advertising campaign information, or related User Submissions pending your review.
(a) Your Account. As an Advertiser, you must register for an account (“Advertiser Account”) through the Thumzup Site or Web App. To use certain Services, you must appropriately register and provide certain information about yourself or the entity that you represent, as prompted by the applicable registration form (“Registration Data”). You represent and warrant that: (a) all required Registration Data that you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Services will not violate any U.S. or other applicable law or regulation (e.g., you are not located in an embargoed country or are not listed as a prohibited or restricted party under applicable export control laws and regulations). You are entirely responsible for maintaining the confidentiality of your Account login information and for all activities that occur under your Account. You agree to use “strong” passwords (passwords that use a combination of upper- and lower-case letters, numbers and symbols) with your Account and to maintain your password securely to prevent others from gaining access. You agree to immediately notify Thumzup of any unauthorized use or suspected unauthorized use of your Account, or any other breach of security. Thumzup is not liable for any loss or damage arising from your failure to comply with the above requirements.
- Access to Services
(a) Access and Use. Subject to these Terms, Thumzup grants you a non-transferable, non-exclusive right (without the right to sub-license) to access and use the Services by (i) using the Sites and Web App in connection with, and solely for the purpose of, controlling and managing your advertising campaign or an advertising campaign you are authorized to control and manage, (ii) in good faith approving Thumzup Users’ posts in compliance with the Thumzup User Post Approval Rules (Section 4(b)) and the Thumzup User Acceptable Use Policy (Section 4(b)(i)), or (iii) use or otherwise access the Services, Sites, and Web Apps as explicitly permitted by these Terms (the “Permitted Purposes”). Any Advertiser’s use of the Services in violation of or contrary to the Permitted Purposes is subject to termination of Advertiser’s Account.
(c) Content, Advertiser Content, and User Submissions. Certain materials may be displayed or performed in connection with the Services (including, but not limited to, text, graphics, articles, photographs, video, images and illustrations (“Content”)). The Content also includes information that Thumzup Users submit through the Services to participate in your advertising campaign (“User Submissions”), and information you submit as part of your advertising campaign (“Advertiser Content”). We may use the Content to provide, maintain and improve the Services. You understand and agree to review User Submissions and approve or deny the User Submission for payment based on the Thumzup User Post Approval Rules (Section 4(b)) and the Thumzup User Acceptable Use Policy (Section 4(b)(i)). If you deny a User Submission for payment, you may also be able to provide feedback regarding that User Submission to subsequently approve the same User Submission, or recommend changes for future User Submissions by the Thumzup User. You are solely responsible for all Content that you upload, post, email, transmit or otherwise disseminate using, or in connection with, the Services, or that you contribute in any manner to the Services; you represent and warrant that you have all rights necessary to do so, in the manner in which you contribute it; and you license to Thumzup all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service pursuant to these Terms. You shall abide by all copyright notices, trademark rules, information and restrictions contained in any Content accessed through the Services, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content or third-party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owner(s), and (ii) in any way that violates any third-party right. Thumzup reserves the right to remove any Content from the Services at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have breached the immediately preceding sentence), or for no reason at all. Without limiting the foregoing, Thumzup may remove Content from your Account at any time and in its sole discretion, and Thumzup makes no guarantee as to the availability of any Content.
(d) Ownership. Excluding User Submissions or any Advertiser Content that you may provide and copyrights, patents, trademarks, and trade secrets held and protected by you or a third party, you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Services and its contents are owned by Thumzup. Neither this Agreement, nor your access to the Services, transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in this Section 3. Thumzup and its subsidiaries or parent company, service providers, and affiliates, reserve all rights not expressly granted in this Agreement. There are no implied licenses granted under this Agreement.
(e) Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (i) you agree not to license, sell, rent, lease, transfer, assign, distribute, host or otherwise commercially exploit the Services; (ii) you agree not to modify, make derivative works of, disassemble, reverse-compile or reverse-engineer any part of the Services; (iii) you agree not to access the Services in order to build a similar or competitive service or product; (iv) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (v) you agree not to upload, transmit or distribute any computer viruses, worms or any software intended to damage or alter a computer or communications network, computer, handheld mobile device, data, the Services, or any other system, device or property; (vi) you agree not to interfere with, disrupt or attempt to gain unauthorized access to the servers or networks connected to the Services or violate the regulations, policies or procedures of such networks; (vii) you agree not to access (or attempt to access) any of the Services by means other than through the interface that is provided by Thumzup; and (viii) you agree not to remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) that may be contained in, or displayed in connection with, the Services. Any future release, update or other addition to functionality of the Services shall be subject to these Terms.
(f) Open Source. Certain items of independent, third-party code may be included in the Web Apps and/or Mobile Apps that are subject to the GNU General Public License (“GPL”) or other open-source licenses (“Open-Source Software”). The Open-Source Software is licensed under the terms of the license that accompanies such Open-Source Software. Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end-user license for such Open-Source Software. In particular, nothing in these Terms restricts your right to copy, modify and distribute such Open-Source Software that is subject to the terms of the GPL.
(h) Security. Thumzup cares about the integrity and security of your personal information. We endeavor to implement appropriate security measures. However, Thumzup cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
(i) Modification. Thumzup reserves the right, at any time, to modify, suspend or discontinue the Services or any part thereof with or without notice to you at our sole discretion. You agree that Thumzup will not be liable to you or to any third party for any modification, suspension or discontinuance of the Services or any part thereof.
- Agreed Usage and Limitations of Services
(a) Intended Use of Services. The Services are intended to be accessed and used for non-time-critical purposes. While we aim for the Services to be highly reliable and available, they are not intended to be reliable or available 100% of the time. The Services are subject to sporadic interruptions and failures for a variety of reasons beyond Thumzup’s control, including Wi-Fi intermittency, service provider uptime, mobile notifications and operators, among others. You acknowledge these limitations and agree that Thumzup is not responsible for any damages allegedly caused by the failure or delay of the Services.
(b) Thumzup User Post Approval Rules. Advertiser shall in good faith approve reasonable Thumzup User’s User Submissions for payment in compliance with these Terms. Advertisers shall approve User Submissions that do not violate the Thumzup User Acceptable Use Policy, unless the User Submission includes an unclear photograph or video in Thumzup User’s social media post or the number of User Submissions from a certain Thumzup User related to the particular Advertiser campaign has exceeded the limit specified in the Campaign Details.
(c) User Submission Disclaimer. Thumzup cannot, and Advertiser agrees that Thumzup is not obligated to, review User Submissions before Thumzup User posts a User Submission on Thumzup User’s social media account related to Advertiser’s campaign. Advertiser agrees to release and hold Thumzup harmless for any User Submissions that are not complimentary or are defamatory in any nature to Advertiser. You understand and agree that Thumzup will not have any liability whatsoever to you for the content of User Submissions.
(d) Reliability of Services. You acknowledge that the Services are not error-free or 100% reliable and 100% available. Proper functioning of the Services relies and is dependent on, among other things, the transmission of data through Wi-Fi networks, enabled wireless device (such as a phone or tablet) and broadband internet access, or cellular service, for which neither Thumzup nor any wireless or data carrier is responsible, and may be interrupted, delayed, refused, or otherwise limited for a variety of reasons, including insufficient coverage, power outages, termination of service and access, environmental conditions, interference, non-payment of applicable fees and charges, system capacity, upgrades, repairs or relocations, and priority access by emergency responders in the event of a disaster or emergency (collectively, “Service Interruptions”). You understand that Service Interruptions may result in the Services being unreliable or unavailable for the duration of the Service Interruption.
(e) Service Interruptions; no refund or rebate. The Services may be suspended temporarily, without notice, for security reasons, systems failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions. Thumzup does not offer any specific uptime guarantee for the Services.
(f) Outages. In the event of any Service Interruptions to the Wi-Fi network or internet connection to which you are utilizing to use or access the Services, the Services may be unreliable or unavailable for the duration of the Service Interruption. Further, features and functionalities of the Services may be unavailable on you for the duration of the Service Interruption.
(g) All information publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom (or from whose account) such Content originated and Thumzup will not be liable for any errors or omissions in any Content. You acknowledge that all Content accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services.
(h) You warrant, represent and agree that you will not contribute any Content, Advertiser Content, or otherwise use the Services in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy or other rights of any third party; (ii) violates any law, statute, ordinance or regulation or is otherwise illegal; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous or otherwise objectionable; (iv) impersonates any person or entity, including, without limitation, any employee or representative of Thumzup; (v) contains a virus, Trojan Horse, worm, time bomb or other harmful computer code, file or program; (vi) jeopardizes the security of your Thumzup Account or anyone else’s Account (such as allowing someone else to log into the Services as you); (vii) attempts, in any manner, to obtain or access the password, account, devices, systems, or other security information from any other user or third party; (viii) violates the security of any computer network or cracks any passwords or security encryption codes; (ix) runs maillist, listserv or any form of auto-responder or “spam” on the Services or any processes that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure); (x) copies or stores any significant portion of the Content; (xi) decompiles, reverse-engineers or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services; or (xii) denigrates or disrupts any network capacity or functionality.
- Fees, Billing, and Payment.
(a) Fees. We reserve the right, but are not obligated, to limit the use of our Services to any person, by any quantity, and to any geographic region or jurisdiction. All fees are subject to change at any time without notice, at our sole discretion. We reserve the right to discontinue the Services at any time. The Services are void where prohibited. We make no guarantee that you will be offered the same fees or campaign cost for the same number of posts, cost per post, start and end date of campaign, target audience and posting limit (“Campaign Parameters”) in the future or for any new features that become available. We reserve the right to correct any misprints or errors in our fees and costs. You agree that all of our fees are final and non-refundable.
- Limitations of Services Due to Third Parties
(a) General. The Services rely on or inter-operate with third-party products and services. These third-party products and services are beyond Thumzup’s control, but their operation may impact on, or be impacted by, the use and reliability of the Services. You acknowledge and agree that: (i) the use and availability of the Services is dependent on third-party product vendors and service providers, (ii) these third-party products and services may not operate in a reliable manner 100% of the time and they may impact on the way that the Services operate, and (iii) Thumzup is not responsible for damages and losses due to the operation of these third-party products and services.
(c) App Stores. You acknowledge and agree that the availability of the Mobile Apps is dependent on the third-party websites from which you download the Mobile Apps, e.g., the Google Play Store from Google or the App Store from Apple (each an “App Store”). You acknowledge that these Terms are between you and Thumzup and not with an App Store. Each App Store may have its own terms and conditions to which you must agree before downloading Mobile Apps from it. You agree to comply with such App Store terms and conditions, and your license to use the Mobile Apps is conditioned upon your compliance with such App Store terms and conditions. To the extent that such other terms and conditions from such App Store are less restrictive than or otherwise conflict with the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply.
(d) Third-Party Website Links and Referrals. The Sites may contain links to other websites operated by third parties (“Third-Party Sites”) and referrals to third-party vendors (“Referred Vendors”). Such Third-Party Sites and Referred Vendors are not under our control. Thumzup provides these links and referrals only as a convenience and does not review, approve, monitor, endorse, warrant or make any representations with respect to such Third-Party Sites or Referred Vendors. Your use of these Third-Party Sites is at your own risk.
(e) Release Regarding Third Parties. Thumzup is not responsible for third parties or their products and services, including, without limitation, the App Stores, Third-Party Services, Third-Party Sites, Equipment, Referred Vendors, ISP and Operators. Thumzup hereby disclaims, and you hereby discharge, waive and release Thumzup and its licensors and suppliers from any past, present and future claims, liabilities and damages, known or unknown, arising out of or relating to your interactions with such third parties and their products and services. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU HEREBY WAIVE ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION.
- Ownership and Intellectual Property
(a) Thumzup Property. You acknowledge that all intellectual property rights, including, without limitation, copyrights, patents, trademarks and trade secrets, in the Services (including the Sites, Web Apps and Mobile Apps) are owned by Thumzup or its affiliates, licensors or suppliers. Your possession, access to and use of the Services do not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. Thumzup, and its affiliates, licensors and suppliers, reserve all rights not granted in these Terms. The Services are licensed to you, not sold, under these Terms.
You may only copy parts of the Services (including any part of any Site) on to your own computer and only for your own personal use in connection with your use of the Services. You may not use the content of the Services in any other public or commercial way, nor may you copy or incorporate any of the content of the Services into any other work, including your own website, without the written consent of Thumzup. You must have a license from us before you can post or redistribute any portion of the Services. Other than with respect to Advertiser Content and User Submissions, Thumzup retains full and complete title to all content on the Services, including any downloadable software and all data that accompanies it. You must not copy, modify or in any way reproduce or damage the structure or presentation of the Services, or any content therein. You may not use any part of the Services for any commercial purpose.
(b) Feedback. You may choose to or Thumzup may invite you to submit comments, suggestions or ideas about the Services, including how to improve the Services (“Ideas”). By submitting any Ideas, you agree that your submissions are voluntary, gratuitous, unsolicited and without restriction, and will not place Thumzup under any fiduciary or other obligation. Thumzup may use, copy, modify, publish or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that Thumzup does not waive any rights to use similar or related ideas previously known to Thumzup, developed by its employees or obtained from other sources.
(c) Advertiser Content and Intellectual Property. You hereby grant us a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, sub-licensable and transferable right to access, display or otherwise use your Advertiser Content and all trademark, copyright, or other proprietary rights in and to the intellectual property associated with the advertising campaign solely in connection with the Services. You also hereby do and shall grant to each Thumzup User that submits a User Submission for your Advertiser campaign a non-exclusive limited license to access, publish, display or otherwise use all trademark, copyright, or other proprietary rights in and to the intellectual property associated with the Advertiser campaign for the limited purpose of creating User Submissions and posting such User Submissions on the Thumzup User’s social media account(s) in compliance with these Terms.
- INDEMNITY FOR THIRD PARTY ACTIONS
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO INDEMNIFY, DEFEND, RELEASE AND HOLD THUMZUP AND ITS LICENSORS AND SUPPLIERS (COLLECTIVELY, THE “THUMZUP PARTIES”) HARMLESS FROM AND AGAINST (I) ALL CLAIMS, ACTIONS, LAWSUITS AND ANY OTHER LEGAL ACTION BROUGHT BY ANY THIRD PARTY AGAINST ANY OF THE THUMZUP PARTIES ARISING FROM OR RELATING TO (A) YOUR USE OF THE SERVICES; (B) YOUR VIOLATION OF THESE TERMS; (C) ANY ADVERTISER CONTENT OR USER SUBMISSION FEEDBACK YOU PROVIDE; OR (D) YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF ANY THIRD-PARTY, INCLUDING BUT NOT LIMITED TO, INTELLECTUAL PROPERTY RIGHTS (COLLECTIVELY, “THIRD PARTY ACTIONS”); AND (II) ANY AND ALL RELATED LOSSES, DAMAGES, SETTLEMENTS AND JUDGEMENTS (INCLUDING PAYMENT OF THE THUMZUP PARTIES’ ATTORNEYS’ FEES AND COSTS) INCURRED BY ANY OF THE THUMZUP PARTIES, ASSESSED OR FOUND AGAINST ANY OF THE THUMZUP PARTIES, OR MADE BY ANY OF THE THUMZUP PARTIES, RELATING TO OR ARISING FROM ANY SUCH THIRD PARTY ACTION (“THIRD PARTY RELATED LOSSES”). YOU UNDERSTAND AND AGREE THAT YOUR INDEMNIFICATION OBLIGATION TO THE THUMZUP PARTIES APPLIES EVEN IF SUCH THIRD-PARTY ACTION AND THIRD PARTY RELATED LOSSES ARISE FROM THE NEGLIGENCE OF ANY KIND OR DEGREE, BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, NON-COMPLIANCE WITH APPLICABLE LAW, OR OTHER FAULT OR WRONGDOING OF ANY OF THE THUMZUP PARTIES. HOWEVER, NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO REQUIRE ANY INDEMNIFICATION WHICH WOULD RENDER OR MAKE THIS CLAUSE, IN WHOLE OR IN PART, VOID AND/OR UNENFORCEABLE UNDER APPLICABLE LAW. FURTHER, YOUR INDEMNIFICATION OBLIGATION SHALL NOT APPLY TO ANY WILLFUL, WANTON, INTENTIONAL OR RECKLESS MISCONDUCT OF THE THUMZUP PARTIES, OR GROSS NEGLIGENCE OF THE THUMZUP PARTIES IN THOSE STATES THAT DO NOT PERMIT INDEMNIFICATION FOR GROSS NEGLIGENCE. “THIRD PARTY” IS DEFINED HEREIN TO INCLUDE, AMONG OTHERS, A THUMZUP USER, A SPOUSE, PARTNER, FAMILY MEMBER, GUEST, NEIGHBOR, TENANT, EMPLOYEE OR INSURANCE COMPANY. Thumzup reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Thumzup, and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without Thumzup’s prior written consent. Thumzup will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
- 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.
- 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.
- 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.
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, 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, ANY ERRORS OR OMISSIONS IN ANY CONTENT 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.
- 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.
(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.
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.
(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 email@example.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: firstname.lastname@example.org. 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: email@example.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.
- 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] 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.
(b) Thumzup’s designated Copyright Agent to receive notifications of claimed infringement is Robert Steele at firstname.lastname@example.org, or by certified mail and marked “Copyright Infringement”, Attn: Copyright Agent at Thumzup at 711 S Carson St, Suite 4, Carson City, NV 89701. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support and other communications should be directed to Thumzup customer service through email@example.com. You acknowledge that if you fail to comply with all the requirements of this Section 13(b), your DMCA notice may not be valid.
(c) Counter-Notice. If you believe that the Advertiser Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent or pursuant to the law to post and use the material in your Advertiser Content, you may send a counter-notice containing the following information to the Copyright Agent: (i) Your physical or electronic signature; (ii) Identification of the Advertiser Content that has been removed, or to which access has been disabled, and the location at which the Advertiser Content appeared before it was removed or disabled; (iii) A statement that you have a good-faith belief that the Advertiser Content was removed or disabled as a result of mistake or misidentification of the Advertiser Content; and (iv) Your name, address, telephone number and e-mail address, a statement that you consent to the jurisdiction of courts in the state of California, USA and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
(d) If a counter-notice is received by the Copyright Agent, Thumzup may send a copy of the counter-notice to the original complainant informing that person that they may replace the removed Advertiser Content or cease disabling it in 10 working days. Unless the copyright owner files an action seeking a court order against the Advertiser Content provider, member or user, the removed Advertiser Content may be replaced, or access to it restored, in 10 to 14 working days or more after receipt of the counter-notice, at Thumzup’s sole discretion.
(a) Changes to These Terms. Thumzup reserves the right to make changes to these Terms, and Thumzup will post notice of changes to any one or more of the following: this page, a Site, Web Apps, or Mobile Apps. If we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our Services. If you have provided us with an e-mail address, you are responsible for ensuring that it is your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective upon the earlier of seven (7) calendar days following our dispatch of an e-mail notice to you (if applicable) or seven (7) calendar days following our posting of notice of the changes on the Services. These changes will be effective immediately for new Advertiser Account users of the Services. Continued use of the Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes. IF YOU DO NOT AGREE WITH ANY OF THE CHANGES TO ANY OF THE TERMS, YOU SHOULD DELETE YOUR ACCOUNT AND CEASE ACCESSING OR USING THE SERVICES.
(b) Governing Law; Jurisdiction and Venue. To the extent that the Agreement allows you or Thumzup to initiate litigation in a court, other than for small claims court actions, you agree that this Agreement and all matters relating to your access to, or use of, the Services will be governed by the laws of the State of California, USA, without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You agree and hereby submit to the exclusive personal jurisdiction and venue of the state and federal courts located in the State of California, USA, for any dispute arising out of or relating to this Agreement and the parties waive any objection based on venue or inconvenient forum.
(c) Protection of Confidentiality and Intellectual Property Rights. Notwithstanding the foregoing, Thumzup may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.
(d) Entire Agreement/Severability. These Terms constitute the entire agreement between you and Thumzup regarding the use of and access to the Services. Any failure by Thumzup to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
(e) Survivability. The obligations in Sections 3(c), (d) and (e), 4 (b)(c) and (h), 5(b), 6(d), 7, 8, 9, 10, 11, 12, and 14 will survive any expiration or termination of these Terms.
(f) Assignment. These Terms, and any associated rights or obligations, may not be assigned or otherwise transferred by you without Thumzup’s prior written consent. These Terms may be assigned by Thumzup without restriction. These Terms are binding upon any permitted assignee.
(g) Electronic Communications. By using the Services, you (a) consent to receive communications from us in an electronic form, and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
(h) Notifications. Thumzup may provide notifications to you as required by law, or for marketing or other purposes, via (at its option) e-mail to the primary e-mail associated with your Account, hard copy or posting of such notice on Thumzupmedia.com. Thumzup is not responsible for any automatic filtering that you or your network provider may apply to email notifications. Thumzup recommends adding @thumzupmedia.com email addresses to your email address book to help ensure that you receive email notifications from Thumzup. Thumzup is located at 711 S Carson St, Suite 4, Carson City, NV 89701.
(i) California Disclosure. Thumzup is located at the address set forth above and below. If you are a resident of the state of California, USA, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210.
(j) All trademarks, logos and service marks (“Marks”) displayed on the Services are the property of Thumzup or of their respective holders. You are not permitted to use any of the Marks without the applicable prior written consent of Thumzup or such respective holders. Thumzup reserves the right to alter services offerings, specifications and pricing at any time, without notice, and is not responsible for typographical or graphical errors that may appear in these Terms or in related guidelines, policies, or rules.
(k) Section Titles. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”.
(l) Relationship of Parties. Your relationship to Thumzup is that of an independent contractor, and neither party is an agent or partner of the other.
(m) Local Laws. We make no representation that any materials on the Services are appropriate or available for use in jurisdictions that are outside the United States. Access to the Services from jurisdictions where such access is illegal is prohibited. If you choose to access the Services from other jurisdictions, you do so at your own initiative and are responsible for compliance with applicable local laws.
(n) Force Majeure. Neither party will be responsible to the other for any delay in performing under this Agreement which results from civil disturbance, undeclared or declared war or other hostilities, acts of terrorism, acts of anarchy, labor strikes or interruptions, earthquakes, or other acts of Nature or acts of God, governmental orders, diseases, pandemics, or any cause beyond the reasonable control of such party.
(o) Contact Information. If you have additional questions or comments of any kind, please let us know by sending your comments or requests to us at:
Thumzup Media Corporation
711 S Carson St, Suite 4
Carson City, NV 89701
Last modified: October 1, 2021