Terms of Use
Welcome to stirred.com (the "Website"). The Website is an interactive online service operated by Stirred, Inc. ("us", "we" or "our").
PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THE WEBSITE. BY ACCESSING AND/OR USING THE WEBSITE (OTHER THAN TO READ THESE TERMS OF USE FOR THE FIRST TIME) YOU ARE AGREEING TO COMPLY WITH THESE TERMS OF USE, WHICH MAY CHANGE FROM TIME TO TIME AS SET FORTH IN SECTION 18 BELOW. THESE TERMS OF USE REQUIRE YOU TO AGREE TO ARBITRATE DISPUTES RATHER THAN GOING TO COURT, GRANT US CERTAIN RIGHTS AND LICENSES, PROVIDE US CERTAIN INDEMNITIES, WAIVE CERTAIN OF YOUR RIGHTS AND REMEDIES, AND LIMIT OUR LIABILITY AND OBLIGATIONS TO YOU. READ THEM CAREFULLY AND DO NOT USE THE WEBSITE OR PURCHASE OUR PRODUCTS OR SERVICES IF YOU DO NOT AGREE.
You agree that these Terms of Use are supported by good and valuable consideration, the receipt and sufficiency of which you hereby acknowledge. Such consideration includes, without limitation, your use of the Website and the materials and information available on the Website and the possibility of publication or publicity of your User Content (as defined in Section 6 below).
We reserve the right to change any of these Terms of Use at any time without prior notice to you. You agree that our posting of revised Terms of Use on the Website will constitute notice to you of such revised Terms of Use and that your access or use of the Website after such posting constitutes your agreement to be bound by such changes and the revised Terms of Use. Consequently, please review these Terms of Use before each and any access or use of the Website.Any changes to these Terms of Use will become a part of these Terms of Use and will apply as soon as they are posted or such later date as may be specified in the posted Terms of Use.
Unless explicitly stated otherwise, any new features or functionality that augment or enhance the Website will be subject to these Terms of Use.
In addition to these Terms of Use, we have established a Privacy Policy to explain how user information is collected and used by us. A copy of our Privacy Policy can be found here , and is incorporated by reference into these Terms of Use. By accessing or using the Website, you are signifying your acknowledgement and agreement to our Privacy Policy.
The Website and included content (and any derivative works or enhancements of the same) including, but not limited to, all text, illustrations, files, images, software, scripts, graphics, photos, sounds, music, videos, information, content, materials, products, services, URLs, technology, documentation and interactive features (collectively, the "Website Content"), and all intellectual property rights to the same, are owned by us, our licensors or both. Additionally, all trademarks, service marks, trade names and trade dress that may appear on the Website are owned by us, our licensors or both. Except for the limited use rights granted to you in these Terms of Use, you shall not acquire any right, title or interest in the Website or any Website Content. Any rights not expressly granted in these Terms of Use are expressly reserved.
A. Access to the Website including, without limitation, the Website Content, is provided for your information and personal, non-commercial use only. When using the Website, you agree to comply with all applicable federal, state and local laws including, without limitation, copyright law. Except as expressly permitted in these Terms of Use, you may not use, reproduce, distribute, create derivative works based upon, publicly display, publicly perform, publish, transmit or otherwise exploit Website Content for any purpose whatsoever without obtaining prior written consent from us or, in the case of third-party content, its respective owner. In certain instances, we may permit you to download, print or share electronically Website Content. In such a case, you may download or print (as applicable) only one copy of Website Content for your personal, non-commercial use only. You acknowledge that you do not acquire any ownership rights by downloading or printing Website Content.
B. Except as expressly permitted in these Terms of Use, you may not:
i. remove, alter, cover or distort any copyright, trademark or other proprietary rights notice on the Website or Website Content;
ii. circumvent, disable or otherwise interfere with security-related features of the Website including, without limitation, any features that prevent or restrict use or copying of any content or enforce limitations on the use of the Website or Website Content;
iii. use an automatic device (such as a robot or spider) or manual process to copy or "scrape" the Website or Website Content for any purpose without our express written permission;
iv. collect or harvest any personally identifiable information from the Website including, without limitation, user names, passwords or email addresses;
v. solicit other users to join or become members of any commercial online service or other organization;
vi. attempt to or interfere with the proper working of the Website or impair, overburden or disable the same;
vii. decompile, reverse engineer or disassemble any portion of the Website;
viii. use network-monitoring software to determine architecture of or extract usage data from the Website;
ix. encourage conduct that violates any local, state or federal law, either civil or criminal, or impersonate another user, person or entity (e.g., using another person's Membership (as defined in Section 5(B) below) without permission);
x. violate U.S. export laws, including, without limitation, the Export Administration Act and the Export Administration Regulations administered by the Department of Commerce; or
xi. engage in any conduct that restricts or inhibits any other user from using or enjoying the Website.
C. Notwithstanding anything to the contrary contained in clause (B)(iii) above, wegrant public search engine operators permission to use automatic devices (such as robots or spiders) to copy Website Content from the Website for the sole purpose of creating (and only to the extent necessary to create) a searchable index of Website Content that is available to the public. We reserve the right to revoke this permission (generally or specifically) at any time.
D. You agree to cooperate fully with us to investigate any suspected or actual activity that is in breach of these Terms of Use.
We hereby grant you a non-exclusive, limited license, revocable at our discretion, for any reason and for no reason, for you to link to the Website home page from any site you own or control that is not commercially competitive with the Website and does not criticize or otherwise injure us, so long as the site where the link resides, and all other locations to which such site links, comply with all applicable laws and do not in any way abuse, defame, stalk, threaten or violate the rights of privacy, publicity, intellectual property or other legal rights of others or, in any way, post, publish, distribute, disseminate or facilitate any inappropriate, infringing, defamatory, profane, indecent, obscene or illegal/unlawful information, topic, name or other material or that violates the spirit of our mission. Such a link is not an endorsement of such other site(s) by us. All of our rights and remedies are expressly reserved.
A. In order to access or use some features of the Website, you will have to become a registered user. If you are under the age of twenty-one, then you are not permitted to register as a user or otherwise submit personal information to us.
B. If you become a registered user, you will provide true, accurate and complete registration information and, if such information changes, you will promptly update the relevant registration information. During registration, you will create a user account associated with an email address (a "Membership"), which may grant you access to certain areas of the Website not available to non-registered users. You are responsible for safeguarding and maintaining the confidentiality of your Membership. You are solely responsible for the activity that occurs under your Membership, whether or not you have authorized the activity. You agree to notify us immediately at info@stirred.com of any breach of security or unauthorized use of your Membership.
A. We may now or in the future permit users to post, upload, transmit through or otherwise make available on the Website (collectively, "submit") messages, comments, text, illustrations, files, images, graphics, photos, sounds, music, videos, information, content and/or other materials ("User Content"). Subject to the rights and license you grant herein, you retain all right, title and interest in your User Content. It is your sole responsibility to monitor and protect any intellectual property rights that you may have in your User Content, and we do not accept any responsibility for the same. The interactive areas of the Website are provided to give users a forum to express their opinions and share their ideas and information. To protect your safety, please use your best judgement when submitting information to the Website. We particularly discourage divulging personal phone numbers and addresses or other information that can be used to identify or locate you on the public areas of the Website. We do not guarantee any confidentiality with respect to User Content, even if it is not published on the Website.
B. You shall not submit any User Content protected by copyright, trademark, patent, trade secret, moral right or other intellectual property, personal, contractual, proprietary or other third-party right without the express permission of the owner of the respective right. You are solely liable for any damage resulting from your failure to obtain such permission or from any other harm resulting from User Content that you submit.
C. By submitting any User Content on, or communicating with, the Website or other channel (including, but not limited to: posting a comment to a Website post; publishing a picture or video on our Facebook profile; participating in an Internet conversation by publishing a Tweet that incorporates a hashtag encouraged by or otherwise referencing us or the Website, or via Instagram or other social media platform; submitting User Content to us via email in response to a request for submissions on the Website or other social media platform), you represent, warrant and covenant that you will not submit any User Content that:
i. violates or infringes in any way upon the rights of others, including, but not limited to, any copyright, trademark, patent, trade secret, moral right or other intellectual property, personal, contractual, proprietary or other third-party right of any person or entity;
ii. impersonates another or is unlawful, threatening, abusive, libelous, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, pornographic, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable;
iii. encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law;
iv. is an advertisement for goods or services or a solicitation of funds;
v. includes personal information such as messages that identify phone numbers, social security numbers, account numbers, addresses or employer references;
vi. contains a formula, instruction or advice that could cause harm or injury;
vii. is a chain letter of any kind; or
viii. would result in us having any obligation or liability to any party.
Moreover, any conduct by a user that in our sole discretion restricts or inhibits any other user from using or enjoying the Website will not be permitted.
D. By submitting User Content to us, simultaneously with such posting you automatically grant, or warrant that the owner has expressly granted, to us a worldwide, royalty-free, perpetual, irrevocable, non-exclusive, fully sublicensable and transferable right and license to use, record, sell, lease, reproduce, distribute, create derivative works based upon (including, without limitation, translations), publicly display, publicly perform, transmit, publish and otherwise exploit the User Content (in whole or in part) as we, in our sole discretion, deem appropriate, including, without limitation: (i) in connection with our business; and (ii) in connection with the businesses of our successors, parents, subsidiaries and their related companies. We may exercise this grant in any format, media or technology now known or later developed for the full term of any copyright that may exist in such User Content. Furthermore, you also grant other users permission to access your User Content and to use, record, sell, lease, reproduce, distribute, create derivative works based upon, publicly display, publicly perform, transmit, publish and otherwise exploit your User Content for personal, non-commercial use as permitted by the functionality of the Website and these Terms of Use. The granted rights include the right to configure, host, index, cache, digitize, compress, optimize, modify, edit, adapt and remove such content and combine the same with other materials. Furthermore, we are free to use any ideas, concepts, know-how or techniques contained in any User Content you submit without any remuneration or obligation to you.
E. By submitting User Content, you also grant us the right, but not the obligation, to use your biographical information including, without limitation, your name and geographical location in connection with broadcast, print, online or other use or publication of your User Content. Notwithstanding the foregoing, you waive any and all claims you may now or later have in any jurisdiction to so-called "moral rights" or rights of "droit moral" with respect to such User Content.
F. We reserve the right to display advertisements in connection with your User Content and to use your User Content for advertising and promotional purposes. You acknowledge and agree that your User Content may be included on the websites and advertising networks of our distribution partners and third-party service providers (including their downstream users).
G. We have the right, but not the obligation, to monitor User Content. Please exercise caution and common sense when posting or viewing User Content. We have no obligation to post, maintain or otherwise make use of User Content and do not guarantee distribution of User Content. Further, we reserve the right to delete, move or edit any User Content submitted at any time, for any reason and in our sole discretion. We may discontinue operation of the Website, or your use of the Website, in either case in whole or in part, in our sole discretion. You have no right to maintain or access your User Content on the Website and we have no obligation to return your User Content or otherwise make it available to you.
H. The rights granted by you hereunder may not be terminated, revoked or rescinded and are not subject to reversion. If you become aware that User Content you have submitted includes any material for which you lack the unrestricted right to grant us the rights set forth above without obligations or liability to any third party, you agree to promptly provide us with detailed written notice thereof to Stirred, Inc., 5455 Boyd Ave, Oakland, California 94618
A. We provide the Website including, without limitation, Website Content and User Content, for entertainment, educational and/or promotional purposes only. You may not rely on any information or opinions expressed on the Website for any other purpose. In all instances, it is your responsibility to evaluate the accuracy, timeliness, completeness or usefulness of Website Content or User Content. Under no circumstances will we be liable for any loss or damage caused by your reliance on any Website Content or User Content.
B. In many instances, Website Content will include content posted by a third party or will represent the opinions and judgments of a third party, including, without limitation, User Content. We do not endorse, warrant and are not responsible for the accuracy, timeliness, completeness or reliability of any opinion, advice or statement made on the Website by anyone other than authorized employees or spokespersons of Stirred while acting in their official capacities.
C. If there is a dispute between persons accessing the Website or between persons accessing the Website and any third party, we are under no obligation to become involved. If there is such a dispute, you hereby release Stirred and its officers, directors, employees, partners, successors, agents, distribution partners, affiliates, subsidiaries and their related companies from claims, demands, and damages of every kind or nature arising out of, relating to, or in any way connected with such dispute.
D. The Website may contain links to other websites maintained by third parties. We do not operate or control, in any respect, or necessarily endorse the content found on these third-party websites. You assume sole responsibility for your use of third-party links. We are not responsible for any content posted on third-party websites or liable to you for any loss or damage of any sort incurred as a result of your dealings with any third party or their website.
E. The Website does not provide any medical advice. No Website Content is intended to be professional medical advice, diagnosis or treatment, or a substitute thereof. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition or a wellness program. Never disregard professional medical advice or delay in seeking it because of something you have read on the Website.
The Website may include certain services that may be available via your mobile phone, including, without limitation, (i) the ability to upload to the Website via your mobile phone (Mobile Uploads), (ii) the ability to receive and reply to messages and to send content and messages using text messaging (Mobile Texts), and (iii) the ability to access the Website from your mobile phone (Mobile Web) (collectively, the "Mobile Services"). We do not currently charge for Mobile Services. Your carrier's normal messaging, data and other rates and fees will, however, still apply. By using the Mobile Services you agree that we may communicate with you regarding the Website and our partners by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services will be communicated to us.
You agree to indemnify and hold harmless us and our officers, directors, employees, partners, successors, agents, affiliates, subsidiaries and their related companies from and against any and all claims, liabilities, losses, damages, obligations, costs and expenses (including reasonable attorneys' fees and costs) arising out of, related to, or that may arise in connection with: (i) your access to or use of the Website; (ii) User Content provided by you or through use of your Membership; (iii) any actual or alleged violation or breach by you of these Terms of Use; (iv) any actual or alleged breach of any representation, warranty or covenant that you have made to us; or (v) your acts or omissions. You agree to cooperate fully with us in the defense of any claim that is the subject of your obligations hereunder.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE WEBSITE IS AT YOUR SOLE RISK. THE WEBSITE AND WEBSITE CONTENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY LAW, WE AND OUR OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, SUCCESSORS, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES AND THEIR RELATED COMPANIES DISCLAIM ANY AND ALL WARRANTIES INCLUDING ANY: (i) WARRANTIES THAT THE WEBSITE WILL MEET YOUR REQUIREMENTS; (ii) WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, TIMELINESS OR INFORMATIONAL CONTENT OF THE WEBSITE OR WEBSITE CONTENT; (iii) WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (iv) WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON OR ACCESSED THROUGH THE WEBSITE; (v) WARRANTIES CONCERNING THE ACCURACY OR RELIABILITY OF THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE; (vi) WARRANTIES THAT YOUR USE OF THE WEBSITE WILL BE SECURE OR UNINTERRUPTED; AND (vii) WARRANTIES THAT ERRORS IN THE SOFTWARE WILL BE CORRECTED.
A. UNDER NO CIRCUMSTANCES SHALL WE OR OUR OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, SUCCESSORS, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES OR THEIR RELATED COMPANIES BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH THE WEBSITE, WEBSITE CONTENT, USER CONTENT, OR THESE TERMS OF USE. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE WEBSITE, INCLUDING, WITHOUT LIMITATION, THE WEBSITE CONTENT, IS TO STOP USING THE WEBSITE. SUCH LIMITATION SHALL ALSO APPLY TO DAMAGES INCURRED BY REASON OF SERVICES OR PRODUCTS RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE WEBSITE OR ANY LINKS ON THE WEBSITE, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE WEBSITE OR ANY LINKS ON THE WEBSITE. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY CONTENT POSTED BY A THIRD PARTY OR CONDUCT OF A THIRD PARTY ON THE WEBSITE, INCLUDING THE USER CONTENT.
B. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF US AND OUR OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, SUCCESSORS, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES AND THEIR RELATED COMPANIES EXCEED THE GREATER OF THE TOTAL PAYMENTS RECEIVED FROM YOU BY US DURING THE PRECEDING TWELVE (12) MONTH PERIOD OR ONE HUNDRED DOLLARS ($100). FURTHERMORE, YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH THE WEBSITE OR THESE TERMS OF USE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
C. In some jurisdictions, limitations of liability are not permitted. In such jurisdictions, some of the foregoing limitations may not apply to you; however, these limitations shall apply to the fullest extent permitted by law in such jurisdictions.
A. We reserve the right in our sole discretion and at any time to terminate or suspend your Membership and/or block your access to the Website for any reason, including, without limitation, if you have failed to comply with the letter and spirit of these Terms of Use. You agree that Stirred shall not be liable to you or any third party for any termination or suspension of your Membership or for blocking your access to the Website.
B. If you become a registered user, you may terminate your Membership at any time by sending an e-mail to info@stirred.com.
C. Any suspension or termination shall not affect your obligations to us under these Terms of Use. The provisions of these Terms of Use which by their nature should survive the suspension or termination of your Membership or these Terms of Use shall survive, including, but not limited to, the rights and licenses that you have granted hereunder, indemnities, releases, disclaimers, limitations on liability, provisions related to choice of law, dispute resolution, no class action, no trial by jury and all of the miscellaneous provisions in Section 20 below.
A. We respect the intellectual property rights of others and expect our users to do the same. In appropriate circumstances and at our sole discretion, Stirred may terminate and/or disable the Membership of users who it suspects to be infringers of the copyrights (or other intellectual property rights) of others. Additionally, in appropriate circumstances and in our sole discretion, we may remove or disable access to material on any of our websites or hosted on our systems that may be infringing or the subject of infringing activity.
B. In accordance with the Digital Millennium Copyright Act of 1998, Title 17 of the United States Code, Section 512 ("DMCA"), we will respond promptly to claims of copyright infringement that are reported to the agent that we have designated to receive notifications of claims of copyright infringement (its "Designated Agent"). Our Designated Agent may be reached at:
Designated Agent
c/o Stirred, Inc.
5455 Boyd Ave
Oakland, California 94618
or
Email us at info@stirred.com
C. If you are a copyright owner (or are authorized to act on behalf of the copyright owner) and believe that your work's copyright has been infringed, please report your notice of infringement to us by providing our Designated Agent with a written notification of claimed infringement that includes substantially the following:
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 us to locate the material;
iv. Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
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.
We will investigate notices of copyright infringement and take appropriate actions under the DMCA. Inquiries that do not follow this procedure may not receive a response. If your notice of infringement relates to a recipe, then you may want to review the U.S. Copyright Office's Circular on the copyrightability of recipes prior to reporting your notice of infringement.
These Terms of Use shall be construed in accordance with the laws of the State of New York without regard to its conflict of laws rules. Any legal proceedings against Stirred that may arise out of, relate to, or be in any way connected with the Website or these Terms of Use shall be brought exclusively in the state and federal courts of California located in Alameda County and you hereby waive any jurisdictional, venue or inconvenient forum objections to such courts.
In the Dispute Resolution Section only, "we" and "us" are used to refer to you and Stirred together.
A. We each agree to first contact the other party with any disputes and provide a written description of the problem, all relevant documents/information and the proposed resolution. You agree to contact us with disputes by contacting us at the address provided in these Terms of Use. We will contact you based on the contact information you have provided us.
B. We each agree to finally settle all disputes (as defined and subject to any specific exceptions below) only by arbitration. In arbitration, there is no judge or jury and review is limited. However, just as a court would, the arbitrator must honor the terms and limitations in these Terms of Use and can award the same damages and relief. The arbitrator's decision and award is final and binding, with some exceptions under the Federal Arbitration Act ("FAA"), and judgment on the award may be entered in any court with jurisdiction. We each also agree as follows:
i. "Disputes" are any claims or controversies against each other related in any way to the Website, Website Content or these Terms of Use - this includes claims you bring against our officers, directors, employees, partners, successors, agents, affiliates, subsidiaries and their related companies, and claims Stirred may bring against you.
ii. If either of us wants to arbitrate a dispute, we agree to send written notice to the other party providing a description of the dispute, previous efforts to resolve the dispute, all supporting documents/information, and the proposed resolution. Stirred will send notice to you based on the contact information you have provided us, and notice to Stirred must be sent to: Stirred, Inc., 5455 Boyd Ave, Oakland, California 94618. We agree to make attempts to resolve the dispute. If we cannot resolve the dispute within forty-five (45) days of receipt of the notice to arbitrate, then we may submit the dispute to formal arbitration.
iii. The FAA applies to these Terms of Use and this arbitration provision. We each agree that the FAA's provisions, not state law, govern all questions of whether a dispute is subject to arbitration.
iv. The arbitration will be administered by the American Arbitration Association ("AAA") under its arbitration rules. If any AAA rule conflicts with these Terms of Use, these Terms of Use will apply. You can obtain procedures, rules and fee information from the AAA at 1-800-778-7879 or www.adr.org .
v. The arbitration will be conducted by a single neutral arbitrator and will take place in Oakland, California. The federal or state law that applies to these Terms of Use will also apply during the arbitration.
vi. We each agree not to pursue arbitration on a classwide basis. We each agree that any arbitration will be solely between you and Stirred (not brought on behalf of or together with another individual's claim). If for any reason any court or arbitrator holds that this restriction is unconscionable or unenforceable, then our agreement to arbitrate doesn't apply and the dispute must be brought in court.
vii. The prevailing party in the arbitration will be entitled to recover its costs and expenses, including reasonable attorneys' fees and experts' fees, which are incurred in connection with the arbitration.
C. Either of us may bring qualifying claims in small claims court.
TO THE EXTENT ALLOWED BY LAW, WE AND YOU EACH WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.
TO THE EXTENT ALLOWED BY LAW, WE AND YOU EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.
A. We reserve the right in our sole discretion and at any time and for any reason, to modify or discontinue any aspect or feature of the Website or to modify these Terms of Use. In addition, we reserve the right to provide you with operating rules or additional terms that may govern your use of the Website generally, unique parts of the Website, or both ("Additional Terms"). Any Additional Terms that we may provide to you will be incorporated by reference into these Terms of Use. To the extent any Additional Terms conflict with these Terms of Use, the Additional Terms will control.
B. Modifications to these Terms of Use or Additional Terms will be effective immediately upon notice, either by posting on the Website or by notification by email or conventional mail. It is your responsibility to review the Terms of Use and the Website from time to time for any changes or Additional Terms. Your access and use of the Website following any modification of these Terms of Use or the provision of Additional Terms will signify your assent to and acceptance of the same. If you object to any subsequent revision to these Terms of Use or to any Additional Terms, you may terminate your Membership as provided in Section 12(B) above or, if you do not have a Membership, your only recourse is to immediately discontinue use of the Website.
Software related to or made available by the Website may be subject to United States export controls. Thus, no software from the Website may be downloaded, exported or re-exported (i) into (or to a national or resident of) Cuba, North Korea, Iran, Syria or any other country to which the United States has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading any software related to the Website, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list. The parties specifically disclaim application of the Convention on Contracts for the International Sale of Goods.
A. Any delay or failure on our part to exercise or enforce any rights under these Terms of Use to which we may be entitled shall not, in any event, be construed as a waiver of the right and privilege to do so at any subsequent time. You irrevocably agree that you waive any and all rights to injunctive or other equitable relief. The section headings used herein are for convenience only and shall not be given any legal import. If any provision of these Terms of Use is held to be invalid or unenforceable, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Use which shall remain in full force and effect.
B. These Terms of Use (including the Privacy Policy and any Additional Terms incorporated by reference) constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between you and us with respect to such subject matter.
C. You may not assign these Terms of Use or assign any rights or delegate any obligations hereunder, in whole or in part, without our prior written consent. Any such purported assignment or delegation by you without the appropriate prior written consent will be null and void and of no force and effect. We may assign these Terms of Use or any rights hereunder without your consent and without notice.
Effective: March 19, 2018. © 2018 Stirred, Inc.