IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT FIDDLER’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 4 BELOW.
PLEASE BE AWARE THAT SECTION 11 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
REGISTRATION. To obtain access to the Services, you may be required to register for an account (“ Account”) and provide certain information about yourself as prompted by the account registration form, such as your name, company name, and e-mail address. If you are an employee or other authorized user of an enterprise customer (“ Enterprise Customer”), then the Enterprise Customer may have to send you an invitation to join. If you are the authorized account administrator designated by an Enterprise Customer, then you may be assigned different permissions than other end users. Regardless of whether you are registering an Account under an Enterprise Customer Account or under a personal Account, when registering with Fiddler, you must: (a) provide true, accurate, current and complete information about yourself and (b) maintain and promptly update your registration or profile data to keep it true, accurate, current and complete. You are responsible for maintaining the confidentiality of your Account log-in information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Fiddler of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Fiddler cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
- License. Subject to these Terms, Fiddler grants you a non-transferable, non-exclusive, revocable, limited license to use, access and download (as applicable) the Services for your own personal or internal business, non-commercial use. Fiddler reserves the right to change the terms of your license and/or subscription, by imposing caps on the number of Registered Users under an Account and/or the amount of data uploaded or stored by Registered Users of an Account, from time to time. When such changes are made, they shall become effective as of the beginning of your next monthly billing period following the date we provide you with written notice of such change.
- Trademarks. Fiddler and all related graphics, logos, service marks and trade names used on or in connection with any Fiddler Properties or in connection with the Services are the trademarks of Fiddler and may not be used without permission in connection with your or any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Fiddler Properties are the property of their respective owners.
- Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Fiddler through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Fiddler has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Fiddler a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Fiddler’s business.
- Analytics and Improvements. You hereby grant Fiddler the right to de-identify and analyze any data or information you provide us through the use of the Services, and agree that Fiddler exclusively owns such de-identified data and any improvements or new services arising therefrom.
USER CONDUCT. As a condition of use, you agree not to use the Services for any purpose that is prohibited by the Agreement or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) make available any content on or through the Site that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Fiddler’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of Fiddler; (vi) interferes with or attempt to interfere with the proper functioning of Fiddler Properties or uses Fiddler Properties in any way not expressly permitted by the Terms; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against Fiddler Properties, including but not limited to violating or attempting to violate any security features of Fiddler Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Fiddler Properties, introducing viruses, worms, or similar harmful code into Fiddler Properties, or interfering or attempting to interfere with use of Fiddler Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” Fiddler Properties.
FEES AND SUBSCRIPTION TERMS.
- Free Trial. Fiddler provides a free trial for a Registered User to access the Services for fourteen (14) days. At the end of this 14-day trial period, Fiddler will begin billing you for your monthly subscription fees, unless you cancel prior to the end of your free trial. Your use of the Services during the free trial period is subject to and governed by the Fiddler Evaluation Agreement.
- Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide Fiddler with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account ( “Payment Provider”), as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement and not the Agreement to determine your rights and liabilities. By providing Fiddler with your credit card number or PayPal account and associated payment information, you agree that Fiddler is authorized to immediately invoice your Account for all fees and charges due and payable to Fiddler hereunder and that no additional notice or consent is required. You agree to immediately notify Fiddler of any change in your billing address or the credit card or PayPal account used for payment hereunder. Fiddler reserves the right at any time to change its prices and billing methods, either immediately upon posting on Fiddlers Pricing Page.
- Service Subscription Fees. You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you create your Account and select your pricing package (each, a “Service Commencement Date”). Except as set forth in the Agreement, all fees for the Services are non-refundable. No contract will exist between you and Fiddler for the Services until Fiddler accepts your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.
- Automatic Renewal. Your subscription will continue indefinitely until terminated in accordance with the Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Fiddler’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from Fiddler that your subscription will be automatically renewed, you will have thirty days from the date of the Fiddler notice), by logging into and going to the “Change/Cancel Membership” page of your “Account Settings” page. If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please contact Fiddler at [email@example.com] or log in and go to the “Change/Cancel Membership” page on your “Account Settings” page. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize Fiddler to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Fiddler does not receive payment from your Payment Provider, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that Fiddler may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
- Taxes. The payments required under Section 4.3 of this Agreement do not include any Sales Tax that may be due in connection with the Services provided under this Agreement. If Fiddler determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, Fiddler shall collect such Sales Tax in addition to the payments required under Section 4.3 of this Agreement. If any Services, or payments for any Services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Fiddler, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Fiddler for any liability or expense Fiddler may incur in connection with such Sales Taxes. Upon Fiddler’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
- Withholding Taxes. You agree to make all payments of fees to Fiddler free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Fiddler will be your sole responsibility, and you will provide Fiddler with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
- Disputes. Unless otherwise provided by the applicable payment processor or payment platform used in connection with your payment for Services, you must notify us in writing within seven (7) days after receiving your credit card statement if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: 275 Moffett Blvd. Mountain View CA 94043.
- Indemnification. You agree to indemnify and hold Fiddler, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “ Fiddler Party” and collectively, the “Fiddler Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any Fiddler Property; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Registered Users; or (e) your violation of any applicable laws, rules or regulations. Fiddler reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Fiddler in asserting any available defenses. This provision does not require you to indemnify any of the Fiddler Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to Fiddler Properties.
DISCLAIMER OF WARRANTIES AND CONDITIONS.
- As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF FIDDLER PROPERTIES IS AT YOUR SOLE RISK, AND FIDDLER PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. FIDDLER PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE.
- FIDDLER PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) FIDDLER PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF FIDDLER PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF FIDDLER PROPERTIES WILL BE ACCURATE OR RELIABLE.
- ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH FIDDLER PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS FIDDLER PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
- THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. FIDDLER MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM FIDDLER OR THROUGH FIDDLER PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
- From time to time, Fiddler may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Fiddler’s sole discretion. The provisions of this section apply with full force to such features or tools.
- No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT FIDDLER PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD FIDDLER PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
LIMITATION OF LIABILITY.
- Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL FIDDLER PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT FIDDLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF FIDDLER PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE FIDDLER PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH FIDDLER PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON FIDDLER PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO FIDDLER PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A FIDDLER PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A FIDDLER PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A FIDDLER PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
- Cap on Liability. UNDER NO CIRCUMSTANCES WILL FIDDLER PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO Fiddler by you during the one-month period prior to the act, omission or occurrence giving rise to such liability and (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A FIDDLER PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A FIDDLER PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A FIDDLER PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
- Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FIDDLER AND YOU.
TERM AND TERMINATION.
- Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Fiddler Properties, unless terminated earlier in accordance with the Agreement.
- Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used Fiddler Properties or (b) the date you accepted the Agreement and will remain in full force and effect while you use any Fiddler Properties, unless earlier terminated in accordance with the Agreement.
- Termination of Services by Fiddler. You will have thirty (30) days from the Service Commencement Date, or any Renewal Commencement Date, for any Services hereunder, to cancel such Service, in which case Fiddler will refund your Service Subscription Fee, if already paid pursuant to Section 4.2 or 4.3, for the applicable Service. Except as set forth above, the Service Subscription Fee for any Service shall be non-refundable. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Agreement, or if Fiddler is required to do so by law (e.g., where the provision of the Website, the Application, the Software or the Services is, or becomes, unlawful), Fiddler has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Fiddler’s sole discretion and that Fiddler shall not be liable to you or any third party for any termination of your Account.
- Termination of Services by You. If you want to terminate the Services provided by Fiddler, you may do so by (a) notifying Fiddler at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Fiddler’s address set forth below. THE SERVICES WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 4.4.
- Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof). Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Fiddler will not have any liability whatsoever to you for any suspension or termination, including for deletion of your data. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
- No Subsequent Registration. If your registration(s) with or ability to access the Site or the Services is discontinued by Fiddler due to your violation of any portion of the Agreement or for otherwise inappropriate conduct, then you agree that you shall not attempt to re-register with or access the Site through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to the Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, Fiddler reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
INTERNATIONAL USERS. The Site and Services can be accessed from countries around the world and may contain references to Services that are not available in your country. These references do not imply that Fiddler intends to announce such Services or Content in your country. Fiddler Properties are controlled and offered by Fiddler from its facilities in the United States of America. Fiddler makes no representations that the Site and Services are appropriate or available for use in other locations. Those who access or use Site or Services from other countries do so at their own volition and are responsible for compliance with local law.
DISPUTE RESOLUTION . Please read the following arbitration agreement in this Section (“ Arbitration Agreement ”) carefully. It requires you to arbitrate disputes with Fiddler and limits the manner in which you can seek relief from us.
- Applicability of Arbitration Agreement . You agree that any dispute or claim relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Fiddler, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify,; and (2) you or Fiddler may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
- Arbitration Rules and Forum . The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent [include name and address of registered agent here]. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Fiddler will pay them for you. In addition, Fiddler will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Fiddler. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
- Waiver of Jury Trial. YOU AND FIDDLER HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Fiddler are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 17.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
- Waiver of Class or Other Non-Individualized Relief . ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts located in the State of California. All other claims shall be arbitrated.
- 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: firstname.lastname@example.org, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Fiddler username (if any), the email address you used to set up your Fiddler account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
- Severability . Except as provided in subsection 11.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
- Survival of Agreement . This Arbitration Agreement will survive the termination of your relationship with Fiddler.
- Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Fiddler makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Fiddler at the following address: 275 Moffett Blvd, Mountain View, California 94043.
- Electronic Communications. The communications between you and Fiddler may take place via electronic means, whether you visit Fiddler Properties or send Fiddler e-mails, or whether Fiddler posts notices on Fiddler Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Fiddler in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Fiddler provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
- Release. You hereby release Fiddler Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Fiddler Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of Fiddler Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Fiddler Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.
- Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Fiddler’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
- Force Majeure. Fiddler shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
- Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Fiddler Properties, please contact us at: email@example.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
- Limitation Period. YOU AND FIDDLER AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS OR FIDDLER SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
- Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws oF the State of CALIFORNIA, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the AGREEMENT.
- Notice. Where Fiddler requires that you provide an e-mail address, you are responsible for providing Fiddler with your most current e-mail address. In the event that the last e-mail address you provided to Fiddler is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Fiddler’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Fiddler at the following address: 275 Moffett Blvd, Mountain View, California 94043. Such notice shall be deemed given when received by Fiddler by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
- Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
- Export Control. You may not use, export, import, or transfer Fiddler Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Fiddler Properties, and any other applicable laws. In particular, but without limitation, Fiddler Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Fiddler Properties, you represent and warrant that (y) 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 (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Fiddler Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Fiddler are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Fiddler products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
- Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
- Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
End of Agreement