Last revised February 12, 2016.
These Terms of Services (these "Terms") constitute a binding contract between you and RigUp, Inc. Throughout these Terms, we will refer to you as "you" and we will refer to RigUp, Inc. as "we", "us" or "RigUp." These Terms govern your use of the website (the "Website") and any mobile applications (each, an "App") or other Internet services under RigUp's control and used to provide RigUp's services to you (the Website, Apps, and those Internet services are, collectively, the "Service"). BY ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE, THEN YOU MAY NOT USE THE SERVICE.
1. Summary of Material Terms. As provided in greater detail in these Terms (and without limiting the express language of these Terms), you acknowledge the following:
2. RigUp Service Overview. The Service provides a platform through which exploration and production companies (“Operators”) can organize and manage relationships with existing or prospective vendors of services relevant to their business (“Vendors”), Operators can issue and manage requests for bids from Vendors, and Vendors can issue invoices to Operators. The Service may also include other related features and functionality. The Service allows Vendors to post information regarding their business generally and the services they offer to Operators, and submit responses to requests for bids issued by Operators. Operators and Vendors are collectively, “Organizations.”
3. Changes to these Terms. We may revise these Terms at any time to take account of changes in the law, or for any other reason. If we update these Terms, we will post a new version on the Website. If a change materially impacts your rights or obligations, we will use commercially reasonable efforts to give you at least 30 days’ notice of the upcoming changes via email or on the Service before the change takes effect. Immaterial modifications are effective upon publication. As soon as you use the Service after the updated version of these Terms is posted and effective, you will be deemed to have agreed to the updated version. Your continued use of the Service after a change to these Terms constitutes your binding acceptance of the updated version.
4. Scope of License to Users
a. Limited License Grant to You. The Service is licensed, not sold, to you for use pursuant to these Terms. Subject to your complete and ongoing compliance with these Terms, RigUp hereby grants you a personal, limited, revocable, non-transferable license to access and use the Service during the term these Terms are in effect solely for your own use or for the use of the Organization on whose behalf you are authorized to act.
b. License Limitations. You may not directly rent, lease, lend, sell, redistribute, or sublicense the Service. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of any portion of the Service, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law), nor attempt to disable or circumvent any security or other technological measure designed to protect the Service or any content available through the Service. If you breach these license restrictions, or otherwise exceed the scope of the licenses granted in these Terms, then you may be subject to prosecution and damages, as well as liability for infringement of intellectual property rights, and denial of access to the Service.
5. Registration and Eligibility
a. Eligibility. You must be at least 18 years of age to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years of age; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
b. Registration. Anyone who is otherwise eligible to use the Service in accordance with these Terms may browse the public-facing pages of the Service. However, in order to use most features of the Service, you must create an account (“Account”). Each Organization will designate an administrator for that Organization’s Account (the “Administrator”). Each Administrator may authorize other individuals from the same Organization to create an Account associated with that Organization (those authorized individuals, “Authorized Users”). Organizations, Administrators, and Authorized Users are, collectively, “Registered Users” and Registered Users and non-Registered Users are, collectively, “Users.”
c. Account Security. Your Account is personal to you, and you may not share your Account information with, or allow access to your Account by, any third party. As you will be responsible for all activity that occurs under your access credentials, you will use reasonable efforts to prevent unauthorized access to or use of the Service and to preserve the confidentiality of your username and password, and any device that you use to access the Service. You will notify us immediately of any breach in secrecy of your login information. You are solely responsible for maintaining the confidentiality of your password. If you have any reason to believe that your account credentials have been compromised or that your Account has been accessed by a third party, you will immediately notify RigUp via e-mail at email@example.com. You will be solely responsible for the losses incurred by RigUp and others due to any unauthorized use of your Account.
6. User Content
a. Operators — Your Content. If you are a Registered User using the Service on behalf of an Operator, you may be able to upload, post, or otherwise submit (“Submit”) content, such as contracts with outside vendors, requests for proposals, or other information regarding the services or Vendors you are looking for or working with (collectively, “Operator Content”). RigUp claims no ownership of Operator Content. You or your third-party licensor, as applicable, retain all copyright, patent, and trademark rights to any Operator Content that you post on or through the Service.
b. Vendors — Your Content. If you are a Registered User using the Service on behalf of a Vendor, you may be able to Submit content, such as information regarding your business (e.g., certificates of insurance, OSHA compliance information, EMR documentation, W-9s, and Master Services Agreements), responses to requests for proposals, invoices, or other information regarding the services you offer including information you Submit in response to a request from an Operator that you Submit that information to the Service (“Vendor Content”). RigUp claims no ownership of Vendor Content. You or your third-party licensor, as applicable, retain all copyright, patent, and trademark rights to any Vendor Content that you Submit on or through the Service.
c. Messages. The Service may allow Registered Users to send messages (“Messages”) to other Registered Users. RigUp may terminate the ability of a Registered User to send Messages at any time and for any reason, without any liability to that Registered User. If a Registered User sends you an objectionable Message, please notify us by sending an e-mail to firstname.lastname@example.org. You agree that RigUp may monitor Messages for compliance with these Terms, and therefore, Messages should not be considered confidential or proprietary.
d. Content Generally. Vendor Content, Operator Content, and Messages are collectively referred to as “User Content.”
e. Limited License Grant to RigUp. You grant RigUp a world-wide, non-exclusive, sublicensable, royalty-free, transferable, limited license to use, modify, host, store, remove, publish, perform, reproduce, transmit, or display User Content that you Submit to the Service (“Your Content”) in order to facilitate the display and use of Your Content in accordance with the applicable settings specified in your Account and the features of the Service you elect to utilize. For example: (a) if you are a Vendor that submits a bid to an Operator, we may make the information in your bid available to that Operator in its original format or in alternative formats to assist the applicable Operator in its evaluation of your bid; (b) if you are a Vendor and submit certificates of insurance, OSHA compliance information, EMR documentation, W-9s, Master Services Agreements, or similar documents relevant to one or more Operators via the Service, RigUp may make those documents available to one or more Operators via the Service, based on whether the documents relate to a specific Operator, all Operators, or a subset of Operators, as applicable; and (c) RigUp may reproduce and transmit your Messages in connection with facilitating transmission of your Messages to the intended recipient through the Service. RigUp may use Your Content in an aggregated manner or for analytics purposes, but not in a manner that specifically identifies you. RigUp will not intentionally display Your Content in a manner inconsistent with the applicable sharing settings in your Account or in a manner inconsistent with the published features of the applicable portions of the Service you utilize unless you tell us to.
f. Limited License Grant to Other Users. By posting or sharing User Content with other Users of the Service, you grant those Users a non-exclusive license to share that User Content with their employees, agents, representatives, and advisors, and to access and use that User Content as permitted by these Terms and the functionality of the Service.
g. You Must Have Rights to the Content You Post. You represent and warrant that Your Content, your Submission of your Content, and use of Your Content as contemplated by these Terms does not: (a) violate any intellectual or proprietary rights of any third party or (b) result in a breach of contract between you and a third party.
h. Content Disclaimer. You understand that by using the Service, you may encounter data,information, applications, materials, and other content from third parties, including User Content from other Users (collectively, “Third Party Materials”), and data, information, applications, materials and other content from RigUp (together with Third Party Materials, excluding only Your Content, “Service Content”), that may contain errors, be offensive, indecent, or objectionable. You use the Service, and rely upon any Service Content accessible through the Service, at your sole risk. RigUp will not have any liability to you for any Service Content that may be found to be offensive, indecent, or that is inaccurate, incomplete, untimely, invalid, illegal, indecent, of poor quality, or otherwise objectionable. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. RigUp may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable.
7. Vendor Categorization. Based on Vendor Content Submitted to the Service, the Service may identify certain Vendors as “approved vendors” or “non-approved vendors” on the Service. This designation constitutes Service Content, and is offered for convenience only to assist Operators in identifying Vendors that have uploaded certain Vendor Content often requested or required by Operators in the industry generally. Operators are solely responsible for reviewing all applicable Vendor Content and supporting documentation to ensure that Vendors have the certifications and requirements the Operator requires.
8. Event Rules. In connection with your participation in any bidding process via the Service, whether as an Operator or a Vendor (each, an “Event”), you agree to the rules and policies set forth in this Section 8. Your Content Submitted in connection with an Event may be retained by RigUp after conclusion of the Event. If you are a Vendor, Operators may use Vendor Content that is Submitted in connection with an Event for any purpose related to determining whether to award any business to you as a result of the Event. Users are prohibited from submitting shill or decoy bids in connection with any Event. All Users must observe commercial standards of fair dealing and honesty in fact in participating in Events.
9. Fees; Payments. The Service is made available to you for free, although certain premium content or features made available on and through the Service may only be available for a fee (the “Premium Features”). Before you are required to pay any fees, you will have an opportunity to review the fees that you will be charged. If you activate or update recurring payments for any Premium Features through the Service, you authorize RigUp to periodically charge, on a going-forward basis and until cancellation, all accrued sums on or before the payment due date for the accrued sums. You may cancel recurring charges at any time via the functionality of the Service or by emailing RigUp directly at email@example.com. That cancellation will result in removal of your access to the applicable Premium Features. It may take up to 10 business days for the update or cancellation to take effect. All fees are in U.S. dollars and are non-refundable. If RigUp changes any fees, including by adding additional fees or charges, you will be provided advance notice of those changes and the opportunity to accept the changes. If you do not accept the changes, RigUp may discontinue providing the applicable Premium Features to you.
10. Your Use of the Service and Service Content. Your use of the Service is expressly conditioned on the following:
a. You may access the Service solely as intended through the provided functionality of the Service and as permitted under these Terms.
b. You agree not to copy, reproduce, distribute, publish, display, perform, transmit, stream, or broadcast any part of the Service without RigUp’s prior written authorization, including, by way of example and not limitation, by doing or engaging in any of the following without RigUp’s express written consent: (i) altering, defacing, mutilating, or otherwise bypassing any approved software through which the Service is made available; and (ii) using any trademarks, service marks, design marks, logos, photographs, or other content belonging to RigUp or obtained from the Service.
c. You agree not to bypass, circumvent, damage, or otherwise interfere with any security or other features of the Service designed to control the manner in which the Service is used, harvest or mine Service Content from the Service, or otherwise access or use the Service in a manner inconsistent with individual human usage.
d. You agree not to undertake, cause, permit, or authorize the translation, reverse engineering, disassembling, or hacking of any aspect of the Service, including any Service Content available on or through the Service, or attempt to do any of the foregoing, except and solely to the extent permitted by these Terms, the authorized features of the Service, or by law, or otherwise attempt to use or access any portion of the Service other than as intended by RigUp.
e. You agree not to use, display, mirror, frame, or utilize framing techniques to enclose the Service, including any Service Content available on or through the Service, or any portion thereof, through any other application or website, unless and solely to the extent RigUp makes available the means for embedding any part of the Service or Service Content.
f. You agree not to access, tamper with, or use non-public areas of the Service, RigUp’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of RigUp’s providers.
g. You agree not to harass, abuse, harm, or advocate or incite harassment, abuse, or harm of another person or group, including RigUp employees and other Users.
h. You agree not to provide any false personal information to RigUp or any other User, or create a false identify or impersonate another person or entity in any way.
i. You agree not to create a new Account, without RigUp’s express written consent, if RigUp has previously disabled an Account of yours.
j. You agree not to solicit, or attempt to solicit, personal information from other Users.
k. You agree not to restrict, discourage, or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of that person, or collect information about Users.
l. You agree not to gain unauthorized access to the Service, to other Registered Users’ Accounts, names, or personally identifiable information, or to other computers or websites connected or linked to the Service.
m. You agree not to post, transmit, or otherwise make available any virus, worm, spyware, or any other computer code, file, or program that may or is intended to disable, overburden, impair, damage, or hijack the operation of any hardware, software, or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected to the Service.
n. You agree not to interfere with or disrupt the Service, or networks or servers connected to the Service, or violate the regulations, policies, or procedures of those networks or servers.
o. You agree not to violate any applicable federal, state, or local laws or regulations or these Terms.
p. You agree not to assist or permit any persons in engaging in any of the activities described above.
A breach of these restrictions may subject you to prosecution and damages, as well as liability for infringement of intellectual property rights.
11. Ownership. The Service is owned and operated by RigUp. The Service and the visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by RigUp are protected by intellectual property and other laws. All Materials included in the Service are the property of RigUp or our third-party licensors. Except as expressly authorized by RigUp, you may not make use of the Materials. RigUp reserves all rights to the Materials not granted expressly in these Terms.
12. Feedback. We appreciate hearing from our Users and welcome your comments regarding the Service. Please be advised, however, that if you send us input or suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), we will: (a) own, exclusively, all now known or later discovered rights to the Feedback; (b) not be subject to any obligation of confidentiality and will not be liable for any use or disclosure of any Feedback; and (c) be entitled to unrestricted use of the Feedback for any purpose whatsoever, commercial or otherwise, without compensation to you or any other person.
13. Consequences of Violating These Terms. We reserve the right to suspend or terminate your Account and prevent access to the Service for any reason, at our discretion. We reserve the right to refuse to provide the Service to you in the future. RigUp may review and remove any User Content at any time for any reason, including activity which, in its sole judgment: violates these Terms; violates applicable laws, rules, or regulations; is abusive, disruptive, offensive, or illegal; or violates the rights of, or harms or threatens the safety of, Users of the Service. You are responsible for any claims, fees, fines, penalties, and other liability incurred by us or others caused by, or arising out of, your breach of these Terms and your use of the Service.
c. Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”), such as end-user license agreements for any downloadable software applications, or rules applicable to a particular feature or content on the Service, subject to Section 3. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
16. Disclaimer. YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (a) YOUR USE OF THE SERVICE AND SERVICE CONTENT IS AT YOUR SOLE RISK, AND THE SERVICE AND ALL SERVICE CONTENT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THE RELEASED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO PRODUCTS, SERVICES, OR SERVICE CONTENT OFFERED BY VENDORS OR OPERATORS LISTED ON THE SERVICE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (b) THE RELEASED PARTIES MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, INCLUDING DATA OR SERVICE CONTENT, WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY GOODS, DATA, SERVICE CONTENT, OR SERVICES AVAILABLE ON THE SERVICE WILL MEET YOUR EXPECTATIONS, OR (v) ANY ERRORS IN THE SERVICE WILL BE CORRECTED; AND (c) ANY MATERIAL OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE USE OF ANY OF THAT MATERIAL.
17. Third Party Disputes. RIGUP IS NOT AFFILIATED WITH ANY SERVICE PROVIDER, OPERATOR, VENDOR, OR THIRD PARTY SERVICE, AND ANY DISPUTE YOU HAVE WITH ANY SERVICE PROVIDER, OPERATOR, VENDOR, THIRD PARTY SERVICE, OR OTHER THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE SERVICE, IS DIRECTLY BETWEEN YOU AND THAT THIRD PARTY, AND YOU IRREVOCABLY RELEASE THE RELEASED PARTIES (AS DEFINED BELOW) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THOSE DISPUTES. YOU WILL TAKE REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH OTHER USERS, PARTICULARLY IF YOU MEET OFFLINE OR IN PERSON. YOU ASSUME ALL RISK WHEN ENGAGING THE SERVICES OF ANY OTHER USER AND IN CONNECTION WITH USING THE SERVICE, INCLUDING BUT NOT LIMITED TO ANY RISKS ASSOCIATED WITH SHARING CONFIDENTIAL INFORMATION WITH ANY OTHER USER.
18. Limitation of Liability. YOU EXPRESSLY UNDERSTAND AND AGREE THAT RIGUP AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS (COLLECTIVELY, THE “RELEASED PARTIES”) WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF RIGUP HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SERVICE; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, FROM, OR AS A RESULT OF THE SERVICE; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY USER OR THIRD PARTY ON THE SERVICE; (e) YOUR RELIANCE ON CONTENT OR DATA MADE AVAILABLE BY US; OR (f) ANY OTHER MATTER RELATING TO THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU. TO THE FULLEST EXTENT POSSIBLE BY LAW, THE RELEASED PARTIES’ MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SERVICE OR YOUR USE OF COMPANY CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED THE GREATER OF THE FEES YOU HAVE PAID TO RIGUP OR US$100.
19. Indemnity. You are responsible for your use of the Service, and you will defend and indemnify the Released Parties from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you will cooperate with our defense of that claim.
20. Third-Party Services, Third-Party Fees, and Linked Websites
a. Access to Third Party Services. The Service may provide you with access to third party websites, databases, networks, servers, information, software, programs, systems, directories, applications, or products or services (collectively, “Third Party Services”). RigUp does not have or maintain any control over Third Party Services, and is not and cannot be responsible for their content, operation, or use. By linking or otherwise displaying information from or providing access to any Third Party Services, RigUp does not give any representation, warranty or endorsement, express or implied, with respect to the legality, accuracy, quality, or authenticity of content, information, or services provided by those Third Party Services.
c. Disclaimer of Liability for Third Party Services. You are solely responsible for taking the precautions necessary to protect yourself from fraud when using Third Party Services, and to protect your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content and material that may be included on or may emanate from any Third Party Services. RigUp disclaims any and all responsibility or liability for any harm resulting from your use of Third Party Services, and you hereby irrevocably waive any claim against RigUp with respect to the content or operation of any Third Party Services.
d. Third Party Fees. Your use of the Service may incur third party fees, such as fees charged by your Carrier for data usage, and may be subject to third party terms, such as your Carrier’s terms of service, and you will pay all of those fees and abide by all of those terms. You are solely responsible for all of those fees incurred by you for use of the Service.
21. Third Party Software. The software you download in connection with any App consists of a package of components, including certain third party software (“Third Party Software” and, together with the App, the “Package”) provided under separate license terms (the “Third Party Terms”), as described in more detail at the bottom of these Terms. Your use of the Third Party Software in conjunction with the App in a manner consistent with the terms of these Terms is permitted, however, you may have broader rights under the applicable Third Party Terms and nothing in these Terms is intended to impose further restrictions on your use of the Third Party Software.
22. Copyright Policy
a. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials posted on the Service infringe your copyright, you (or your agent) may send RigUp a “Notification of Claimed Infringement” requesting that the material be removed, or access to it blocked. The notice must include the following information:
i. A physical or electronic signature of a person authorized to act on behalf of the owner of the works that have been allegedly infringed;
ii. Identification of the copyrighted work alleged to have been infringed (or if multiple copyrighted works located on the Service are covered by a single notification, a representative list of those works);
iii. Identification of the specific material alleged to be infringing or the subject of infringing activity, and information reasonably sufficient to allow RigUp to locate the material on the Service;
iv. Your name, address, telephone number, and email address (if available);
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 the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send RigUp a counter-notice.
b. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA, see http://www.loc.gov/copyright/ for details. Notices and counter-notices with respect to the Service should be sent to 98 San Jacinto Blvd, Suite 550, Austin, TX 78701 or firstname.lastname@example.org. Consult your legal advisor and see 17 U.S.C. § 512 before filing a notice or counter-notice as there are penalties for false claims under the DMCA.
c. Repeat Infringers. RigUp will promptly terminate without notice the accounts of users that are determined by RigUp to be Repeat Infringers. A “Repeat Infringer” is a user who has been notified of infringing activity or has had User Content removed from the Service at least twice.
23. Governing Law. These Terms are governed by the laws of the State of Texas without regard to conflict of law principles that would result in the application of the laws of another jurisdiction. If a lawsuit or court proceeding is permitted under these Terms, then you and RigUp agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Travis County, Texas for the purpose of litigating any dispute. We operate the Service from our offices in Texas, and we make no representation that Materials or Service Content are appropriate or available for use in other locations.
24. Dispute Resolution and Arbitration
a. Generally. In the interest of resolving disputes between you and RigUp in the most expedient and cost effective manner, you and RigUp agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND RIGUP ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
b. Exceptions. Despite the provisions of Section 24.a., nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
c. Arbitrator. Any arbitration between you and RigUp will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting RigUp.
d. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). RigUp’s address for Notice is: RigUp, Inc., 98 San Jacinto Blvd, Suite 550, Austin, TX 78701. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or RigUp may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or RigUp must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, RigUp will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by RigUp in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
e. Fees. If you commence arbitration in accordance with these Terms, RigUp will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Travis County, Texas but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse RigUp for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
f. No Class Actions. YOU AND RIGUP 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 CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and RigUp 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 class proceeding.
g. Modifications to this Arbitration Provision. If RigUp makes any future change to this arbitration provision, other than a change to RigUp’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to RigUp’s address for Notice, in which case your account with RigUp will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
h. Enforceability. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement. If Section 24.f. is found to be unenforceable or if the entirety of this Section 24 is found to be unenforceable, then the entirety of this Section 24 will be null and void, the remaining provisions of these Terms will remain in effect in accordance with Section 26, and the exclusive jurisdiction and venue described in Section 23 will govern any action arising out of or related to these Terms.
25. Notice Regarding Apple. You acknowledge that these Terms are between you and RigUp only, not with Apple, and Apple is not responsible for any App or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to any App. In the event of any failure of any App to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to any App. Apple is not responsible for addressing any claims by you or any third party relating to any App or your possession and/or use of any App, including, but not limited to: (i) product liability claims; (ii) any claim that any App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third party claim that any App or your possession and use of any App infringes that third party’s intellectual property rights. You will comply with any applicable third party terms, when using any App. Apple, and Apple’s subsidiaries, are third party beneficiaries of this section of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce this section of these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties. If RigUp provides a translation of the English language version of these Terms, the translation is provided solely for convenience, and the English version will prevail.
26. General. You may not assign these Terms or any of the rights or licenses granted under these Terms, directly or indirectly, including by sale, merger, change of control, operation of law or otherwise, without the prior written consent of RigUp. RigUp may assign these Terms, including all its rights under these Terms, without restriction. These Terms, together with any other agreements expressly incorporated by reference herein, constitutes the entire and exclusive understanding and agreement between you and RigUp regarding your use of and access to the Service, and, except as expressly permitted above, may be amended only by a written agreement signed by authorized representatives of all parties to these Terms. The failure to require performance of any provision will not affect our right to require performance at any time thereafter, nor will a waiver of any breach or default of these Terms or any provision of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of particular provisions. In the event that any part of these Terms is held to be invalid or unenforceable, the validity, legality, and enforceability of the remaining provisions will remain in full force and effect. NOTHING IN THESE TERMS WILL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU. You agree that no joint venture, partnership, employment, or agency relationship exists between you and RigUp as a result of these Terms or use of the Service.
27. Consent to Electronic Communication. By using the Service, you consent to receiving electronic communications from us regarding your Account, or for operational and informational purposes. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
28. Contacting RigUp. You can contact RigUp, Inc. by e-mail at email@example.com, or by U.S. Post at 98 San Jacinto Blvd, Suite 550, Austin, TX 78701.