Welcome to HOTCLE!
These Terms are a legal agreement between you and Us and apply to you whether you are a subscriber, a Member (defined below) or a visitor using the HOTCLE Services (collectively, “Users”). These Terms limit our liability and obligations to you, grant Us certain rights and allow Us to change, suspend or terminate your access to and use of the HOTCLE Services. YOU UNDERSTAND THAT BY REGISTERING FOR, ACCESSING, CLICKING THE “I AGREE” BUTTON, USING THE HOTCLE SERVICES OR YOUR ACCOUNT OR BY POSTING ANY CONTENT THROUGH THE HOTCLE SERVICES, YOU ATTEST THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE HOTCLE SERVICES. IF YOU AGREE TO THESE TERMS ON BEHALF OF A BUSINESS, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT BUSINESS TO THESE TERMS AND YOUR AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF THE BUSINESS. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO THAT BUSINESS.
Please note that when using certain HOTCLE Services, such as by way of example, a mobile application, a separate terms document or end-user license agreement may apply to your use of that feature or service (“Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.
ELIGIBILITY AND REGISTRATION.
PROPRIETARY RIGHTS AND LICENSES.
(a) Definitions. Certain content and materials are made available through the HOTCLE Services, including Content, Licensed Content and User Submissions. “Content” means, collectively, the text, data, graphics, images, videos, trademarks and logos and other content (including Licensed Content) made available through the HOTCLE Services, excluding User Submissions. “Licensed Content” means any content (including any audio or video content) provided to Us by our third-party content partners and made available through the HOTCLE Services. “User Submissions” means, collectively, the text, data, communications, bulletin board messages, chat, graphics, images, photos, audio or video files and other content and information which Members post, upload and otherwise submit to the HOTCLE Services, including, without limitation, in their profile page, excluding Translated Content and “Unsolicited Submissions” (described below).
(b) User Submissions. You retain all rights in your User Submissions. However, by uploading, posting, submitting or otherwise transmitting any User Submissions on or to the HOTCLE Services, you hereby grant to us a non-exclusive, worldwide, royalty-free, sublicensable, perpetual and irrevocable right and license to use, reproduce, modify, distribute, prepare derivative works of, display, publish, perform and transmit your User Submissions in connection with the HOTCLE Services and our (and our successors) business including, without limitation, for promotion and redistributing part or all of the HOTCLE Services (and derivative works thereof), in any media formats and through any media channels. You represent and warrant that you own or have the necessary licenses, rights, consents and permissions to grant the foregoing licenses to us. You acknowledge and agree that we may, at our option, reclassify or re-categorize any User Submissions and establish limits concerning User Submissions, including, without limitation, the maximum number of days that User Submissions will remain available via the HOTCLE Services, the maximum size of any files that may be stored on or uploaded to the HOTCLE Services and the maximum disk space that may be allotted to you for the storage of User Submissions on our servers. We will have no responsibility or liability for maintaining copies of User Submissions on our servers, and you are solely responsible for creating back-ups of your User Submissions. It is our policy not to accept unsolicited submissions including, but not limited to, scripts, story lines, articles, characters, drawings, information, suggestions, ideas, or concepts (“Unsolicited Submissions”). This is to avoid any misunderstandings if your ideas are similar to those we have developed or are developing independently. Accordingly, we do not accept Unsolicited Submissions. However, if you do submit Unsolicited Submissions despite this request, you agree that all such submissions are “User Submissions” and that you grant us the license set forth in this section.
(i) We and Our licensors own all right, title and interest, including all intellectual property rights in the HOTCLE Services, Content and any other content made available through the HOTCLE Services contained therein, other than your User Submissions. You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the HOTCLE Services, Content, any other content made available through the HOTCLE Services or related products and services, and except as explicitly described herein, you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the HOTCLE Services, Content or any other content made available through the HOTCLE Services (other than your User Submissions).
(ii) From time to time, we may permit Members to create translations of certain Licensed Content (“Translated Content”) subject to the underlying rights of our third-party content providers. Any activity in this regard will be governed by additional terms and conditions (“Translation Terms”) that will be provided to Members in writing in advance of their having access to any Licensed Content for this limited purpose. Any Translation Terms will form part of these Terms and be subject to the terms and conditions contained herein. To the extent that there are any conflicts or inconsistencies between these Terms and the Translation Terms, the provisions of the Translation Terms will govern and control.
(d) Reminder Regarding Content. For the avoidance of doubt with respect to any Content that you access via the HOTCLE Service, such Content is only made available for personal and non-commercial purposes. The delivery of any Content to you neither transfers any commercial or promotional use rights in the Content to you nor does it constitute a grant or waiver of any rights of the copyright owners in any audio or video content, sound recording, underlying musical composition, or artwork embodied in the Content.
(e) License. Subject to your strict compliance with these Terms, we hereby grant you a non-exclusive, limited, revocable, non-assignable, non-transferable license under copyright to use the HOTCLE Services and the Content.
(f) Disclaimer. We do not guarantee that any content (including without limitation Content, User Submissions or Translated Content) will be made available through the HOTCLE Services, continuously or at all. WHILE WE ARE UNDER NO OBLIGATION TO DO SO, WE RESERVE THE RIGHT TO REMOVE AND PERMANENTLY DELETE ANY CONTENT FROM THE HOTCLE SERVICES WITHOUT NOTICE, AND FOR ANY REASON WE DEEM SUFFICIENT. We do not have any obligation to monitor the User Submissions or Translated Content that is uploaded, posted, submitted or otherwise transmitted using the HOTCLE Services, for any purpose and, as a result, is not responsible for the accuracy, completeness, appropriateness, legality or applicability of the User Submissions or Translated Content or anything said, depicted or written by Members, including, without limitation, any information obtained by using the HOTCLE Services. We do not endorse any User Submissions or Translated Content or any opinion, recommendation or advice expressed therein and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against us with respect thereto.
COPYRIGHTED MATERIALS: NO INFRINGING USE.
You will not use the HOTCLE Services to offer, display, distribute, transmit, route, provide connections to or store any material that infringes copyrighted works or otherwise violates or promotes the violation of the intellectual property rights of any third party. We have adopted and implemented a policy that provides for the termination in appropriate circumstances of the accounts of users who repeatedly infringe or are believed to be or are charged with repeatedly infringing the rights of copyright holders.
TERMINATION OR SUSPENSION OF THE HOTCLE SERVICES & MODIFICATION OF THESE TERMS.
We reserve the right in our sole discretion, at any time, to modify, discontinue or terminate the HOTCLE Services or to modify or terminate these Terms without advance notice. Modifications to these Terms or any policies will be available on HOTCLE Services. If any modification is not acceptable to you, your only recourse is to cease using the HOTCLE Services. By continuing to use the HOTCLE Services after we have posted any modifications or provided any required notices, you accept and agree to be bound by the modifications. Without limiting other remedies, we may at any time suspend or terminate your account and refuse to provide access to the HOTCLE Services. In addition, we may notify authorities or take any actions we deem appropriate, without notice to you, if we suspect or determine, in our own discretion, that you may have or there is a significant risk that you have (i) failed to comply with any provision of these Terms or any policies or rules established by us; or (ii) engaged in actions relating to or in the course of using the HOTCLE Services that may be illegal or cause liability, harm, embarrassment, harassment, abuse or disruption for you, Users, us or any other third parties or the HOTCLE Services. You may terminate your account at any time and for any reason by selecting this option on your account information page. Upon any termination by a Member, the related account will no longer be accessible. After any termination, you understand and acknowledge that we will have no further obligation to provide the HOTCLE Services and all licenses and other rights granted to you by these Terms will immediately cease. We will not be liable to you or any third party for termination of the HOTCLE Services or termination or suspension of your use of the HOTCLE Services. UPON ANY TERMINATION OR SUSPENSION, ANY CONTENT, MATERIALS OR INFORMATION (INCLUDING USER SUBMISSIONS OR TRANSLATED CONTENT) THAT YOU HAVE SUBMITTED THROUGH THE HOTCLE SERVICES WHICH IS RELATED TO YOUR ACCOUNT MAY NO LONGER BE ACCESSED BY YOU. Furthermore, we will have no obligation to maintain any information stored in our database related to your account or to forward any information to you or any third party. Any suspension, termination or cancellation will not affect your obligations to us under these Terms (including, without limitation, proprietary rights and ownership, indemnification and limitation of liability), which by their sense and context are intended to survive such suspension, termination or cancellation.
INTERACTIONS BETWEEN USERS.
You are solely responsible for your interactions (including any disputes) with other Users. You understand that we do not in any way screen Users. You are solely responsible for, and will exercise caution, discretion, common sense and judgment in, using the HOTCLE Services and disclosing personal information to other Users. You agree to take reasonable precautions in all interactions with other Users, particularly if you decide to meet Users offline, or in person. Your use of the HOTCLE Services, Content and any other content made available through the HOTCLE Services is at your sole risk and discretion and we hereby disclaim any and all liability to you or any third party relating thereto. We reserve the right to contact Members, in compliance with applicable law, in order to evaluate compliance with the rules and policies in these Terms. You will cooperate fully with us to investigate any suspected unlawful, fraudulent or improper activity, including, without limitation, granting our authorized representatives access to any password-protected portions of your account.
OBLIGATIONS FOR USERS.
The HOTCLE Services may be used and accessed for lawful purposes only. You agree to abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the HOTCLE Services. In addition, without limitation, you agree that you will not do any of the following while using or accessing the HOTCLE Services: (a) Upload, post, submit or otherwise transmit: (i) any User Submissions or Translated Content to which you do not have the lawful right to copy, transmit and display (including any User Submissions that would violate any confidentiality or fiduciary obligations that you might have with respect to the User Submission); (ii) any User Submissions or Translated Content for which you do not have the consent or permission of each identifiable person in the User Submissions or Translated Content to use the name, voice, signature, photograph, or likeness of each such person (to the extent each is implicated by the User Submission or Translated Content) and such consent or permission is necessary; or (iii) any User Submissions or Translated Content that infringes the intellectual property rights or violates the privacy rights of any third party (including without limitation copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity); (b) Upload, post, submit or otherwise transmit any User Submissions or Translated Content that are unlawful, obscene, harmful, threatening, harassing, defamatory or hateful or that contains objects or symbols of hate, invades the privacy of any third party, contains any pornography, erotica, child pornography or child erotica, is deceptive, threatening, abusive, inciting of unlawful action, defamatory, libelous, vulgar or violent or constitutes hate speech or is otherwise objectionable in our opinion; (c) Circumvent, disable or otherwise interfere with security related features of the HOTCLE Services or features that prevent or restrict use or copying of any content; (d) Use any meta tags or other hidden text or metadata utilizing our trademark or logo, URL or product name; (e) Upload, post, submit or otherwise transmit any advertising, promotional materials, junk mail, spam, chain letters, “pyramid schemes” or any other form of solicitation; (f) Forge any TCP/IP packet header or any part of the header information in any posting or in any way use the HOTCLE Services to send altered, deceptive or false source-identifying information; (g) Upload, post, submit or otherwise transmit any User Submissions or Translated Content that contain software viruses or any other computer code, files, or programs designed to (i) interrupt, destroy or limit the functionality of any computer software; or (ii) interfere with the access of any user, host or network, including without limitation sending a virus, overloading, flooding, spamming or mail-bombing the HOTCLE Services; (h) Upload, post, submit or otherwise transmit any User Submissions or Translated Content that include code that is hidden or otherwise surreptitiously contained within the images, audio or video of any User Submissions or Translated Content that is unrelated to the immediate, aesthetic nature of the User Submissions or Translated Content; (i) Interfere with or disrupt (or attempt to interfere with or disrupt) any web pages available through the HOTCLE Services, servers or networks connected to the HOTCLE Services or the technical delivery systems of our providers or disobey any requirements, procedures, policies or regulations of networks connected to the HOTCLE Services; (j) Attempt to probe, scan or test the vulnerability of any of our systems or networks or breach or impair or circumvent any security or authentication measures protecting the HOTCLE Services; (k) Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the HOTCLE Services; (l) Attempt to access, search or meta-search the HOTCLE Services with any engine, software, tool, agent, device or mechanism other than software and/or search agents provided by us or other generally available third party web browsers (such as Microsoft Internet Explorer, Mozilla Firefox, Safari or Opera), including without limitation any software that sends queries to the HOTCLE Services to determine how a website or web page ranks; (m) Collect or store personal data about other Users without their express permission; (n) Impersonate or misrepresent your affiliation with any person or entity, through pretexting or some other form of social engineering or otherwise commit fraud; (o) Use the HOTCLE Services in any manner not permitted by these Terms; or (p) Encourage or instruct any other individual to do any of the foregoing or to violate any term of these Terms.
SWEEPSTAKES AND CONTESTS.
We may operate sweepstakes, contests and similar promotions (collectively, “Promotions”) through the HOTCLE Services. You should carefully review the rules (e.g., the “Official Rules”) of each Promotion in which you participate through the HOTCLE Services, as they may contain additional important information (including, but not limited to, information about our rights to and ownership of the submissions you make as part of the Promotions and as a result of your participation in such Promotion). To the extent that the terms and conditions of such Official Rules conflict with these Terms, the terms and conditions of such Official Rules will control.
RATINGS AND COMMENTS & FEEDBACK.
Comments. You can rate and make comments about content made available through the HOTCLE Services (“Comments”). We advise you to exercise caution and good judgment when leaving such Comments. Once you complete and submit your Comments to the HOTCLE Services you will not be able to go back and edit your Comments. You should also be aware that you could be held legally responsible for damages to someone’s reputation if your Comments are deemed to be defamatory. We may, but are under no obligation to, monitor or censor Comments and disclaims any and all liability relating thereto. Notwithstanding the foregoing, we reserve the right, in our sole discretion, to remove any Comments that we deem to be improper, inappropriate or inconsistent with the online activities that are permitted under these Terms. If we are properly notified that a user Comment is improper, inappropriate or inconsistent with the online activities that are permitted under these Terms, we will remove it within a reasonable time after the notification.
Feedback. We welcome and encourage you to provide feedback, comments and suggestions for improvements to the HOTCLE Services (“Feedback”). You may submit Feedback by emailing us at email@example.com. You acknowledge and agree that all Comments and all Feedback will be our sole and exclusive property and you hereby assign and agree to assign all rights, title and interest you have in such Comments and Feedback to us together with all intellectual property rights therein.
You agree to defend, indemnify and hold COLORWHALE. and its affiliates, subsidiaries and distribution partners and their respective officers, directors, employees and/or agents harmless from and against any claims, liabilities, damages, losses and expenses, including, without limitation, reasonable attorneys’ fees and costs, arising out of or in any way connected with: (i) your access to or use of the HOTCLE Services, Content, User Submissions or Translated Content; (ii) your violation of these Terms; (iii) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any claim that any content you posted via the HOTCLE Services (including without limitation your User Submissions or any Translated Content) caused damage to a third party, including without limitation claims that your User Submissions or any Translated Content are infringing.
THE HOTCLE SERVICES, CONTENT AND ANY OTHER CONTENT MADE AVAILABLE THROUGH THE HOTCLE SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY OF ANY KIND. WE EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE HOTCLE SERVICES, CONTENT AND ANY OTHER CONTENT MADE AVAILABLE THROUGH THE HOTCLE SERVICES, INCLUDING ANY IMPLIED WARRANTY OF QUALITY, AVAILABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN ADDITION, WE MAKE NO REPRESENTATION OR WARRANTY THAT THE HOTCLE SERVICES, CONTENT OR ANY OTHER CONTENT MADE AVAILABLE THROUGH THE HOTCLE SERVICES WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES WILL COLORWHALE. OR ITS AFFILIATES, SUBSIDIARIES, PARTNERS OR LICENSORS OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND/OR AGENTS BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OF THE HOTCLE SERVICES, CONTENT AND ANY OTHER CONTENT MADE AVAILABLE THROUGH THE HOTCLE SERVICES INCLUDING, WITHOUT LIMITATION, INJURY OR DAMAGES RESULTING FROM THE CONDUCT OF ANY USER, ONLINE OR OFFLINE, WHETHER OR NOT WE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OUR AGGREGATE LIABILITY TO YOU ARISING WITH RESPECT TO THESE TERMS WILL NOT EXCEED $50. WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS RELATING TO THE HOTCLE SERVICES OR THE SCHEDULED OR UNSCHEDULED SERVICE INTERRUPTIONS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
We will not be liable to you by reason of any failure or delay in the performance of our obligations hereunder on account of events beyond our reasonable control, which may include, without limitation, denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, material shortages, failure of the internet or extraordinary connectivity issues experienced by major telecommunications providers and unrelated to our infrastructure or connectivity to the internet or failure at a co-location facility (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, we will be excused from any further performance of our obligations effected by the Force Majeure Event for so long as the event continues, and for such further period of time that we may reasonably require to recover from the effects of such Force Majeure Event.
NOTICE AND PROCEDURE FOR CLAIMS OF COPYRIGHT AND OTHER INTELLECTUAL PROPERTY INFRINGEMENT.
In accordance with the Digital Millennium Copyright Act of 1998 (the “DMCA”), we have a designated agent for receiving notices of copyright infringement and we follow the notice-and-take-down procedures of the DMCA. If you believe that any Content, User Submissions, or other material provided through the Service, including through a link, infringes your copyright, please submit a notification alleging such infringement in accordance with Our Copyright Policy.
RELATIONSHIP OF THE PARTIES.
Notwithstanding any provision hereof, for all purposes of these Terms each party will be independent and act independently and not as a contractor, partner, joint venturer, agent, employee or employer of the other and will not bind nor attempt to bind the other to any contract.
NOTICE; CONSENT TO ELECTRONIC NOTICE.
You consent to the use of (a) electronic means to complete these Terms and to deliver any notices pursuant to these Terms and (b) electronic records to store information related to these Terms or your use of the HOTCLE Services. Any notice or other communication to be given hereunder will be in writing and given (x) by us via email (in each case to the address that you provide), (y) a posting through the HOTCLE Services or (z) by you via email to firstname.lastname@example.org or to such other addresses as we may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted.
LINKING POLICY AND ADVERTISING.
(a) To Other Websites. The HOTCLE Services may provide links to websites other than the HOTCLE Services. Such links are provided for reference only, and we neither control such websites nor endorse any of the material on any such websites or any association with their operators. We are not responsible for the activities or such sites, and have no liability to you for any harms, injuries or losses you might suffer as a result of using or accessing such websites.
(b) To the HOTCLE Services. We grant you the revocable permission to link to the our HOTCLE Services; provided, however, that any link to our HOTCLE Services: (i) must not present false information about, disparage damage, dilute or tarnish the goodwill associated with our HOTCLE Services, any Content or any other intellectual property; (ii) must not create the false appearance that your website or organization is sponsored, endorsed by, affiliated or associated with Us; (iii) must not frame or create a browser or border environment around any of the Content or otherwise mirror any part of the HOTCLE Services; (iv) must not use any of our trademarks without the prior written permission from Us; (v) must not contain content that could be construed as distasteful, offensive or controversial or otherwise objectionable (in our sole opinion); and (vi) must be owned and controlled by you or the person or entity placing the link, or otherwise permit you to enable such link subject to these Terms. You agree that you will not link to the HOTCLE Services from any source that is unlawful, abusive, indecent or obscene, that promotes violence or illegal acts, that contains expressions of racism, that is libelous, defamatory, scandalous, or inflammatory or is otherwise inappropriate (in our sole discretion). If you do link to Our HOTCLE Services, the link must be in plain text, unless otherwise pre-approved in writing by us. We reserve the right, in Our sole discretion, to terminate a link with any website that we deem inappropriate or inconsistent with the HOTCLE Services or these Terms. By linking to Our HOTCLE Services, you agree that you do and will continue to comply with the above linking requirements. Notwithstanding anything to the contrary contained in these Terms, We reserve the right to prohibit linking to Our HOTCLE Services for any reason in Our sole and absolute discretion.
(c) Advertisements. We take no responsibility for advertisements or any third party material posted via the HOTCLE Services, nor do we take any responsibility for the products or services provided by advertisers. Any dealings you have with advertisers found while using the HOTCLE Services are between you and the advertiser, and you agree that we are not liable for any loss or claim that you may have against an advertiser.
(a) Enforceability. In the event that any provision in these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent permitted by law and the remaining provisions will remain in full force and effect to the maximum extent permitted by law. The failure of a party to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision.
(b) Assignment. You may not assign or transfer these Terms (by operation of law or otherwise) without our prior written consent and any prohibited assignment will be null and void. We may assign these Terms or any rights hereunder without your consent.
(c) Third Party Beneficiaries. Content providers providing Content which you obtain or view through the HOTCLE Service are intended third-party beneficiaries under this Agreement.
(d) Explicit Content. You understand that by using the HOTCLE Services, you may encounter content that may be deemed offensive, indecent or objectionable, which content may or may not be identified as having explicit language or other features. Nevertheless, you agree to use the HOTCLE Services at your sole risk, and We shall have no liability to you for content that may be found to be offensive, indecent or objectionable.
(e) ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
Except for disputes relating to the infringement or misappropriation of Our intellectual property (including but not limited to trademarks, trade dress, copyrights, patents and trade secrets) or disputes in which we are seeking an injunction (“Excluded Disputes”), you agree that all disputes between you and Us (whether or not such dispute involves a third party) with regard to your relationship with Us, including without limitation disputes related to these Terms or your use of the HOTCLE Service, will be resolved by binding, individual arbitration under the American Arbitration Association’s rules for arbitration of consumer-related disputes and you and We hereby expressly waive trial by jury. Neither you nor We will participate in a class action or class-wide arbitration for any claims covered by this agreement. At your election, desktop or telephone arbitration, if available, can be used for claims of less than $10,000. Rather than force everyone to visit Us in San Francisco, if you can demonstrate that arbitration in San Francisco would create an undue burden to you, you are free to initiate the arbitration in your home city. Otherwise, the arbitration hearings will be held in the City and County of San Francisco, California. As an alternative, you may bring your claim in your local “small claims” court, if permitted by that small claims court’s rules. You may bring claims only on your own behalf.
This dispute resolution provision will be governed by the Federal Arbitration Act. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either We or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms. The decision of the arbitrator will be final and binding except as provided in the Federal Arbitration Act. You understand and agree that all aspects of the arbitration proceeding and the award, including the hearing, except as may be necessary in connection with a court application for a preliminary or permanent injunction, or unless otherwise required by law or judicial decision, shall be confidential. You understand and agree that any provision of applicable law notwithstanding, the arbitrator will not have authority to award punitive or exemplary damages, except where permitted by statute, and the parties waive any right to recover any such damages. Judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If any portion of this section is found to be invalid, illegal or unenforceable, for any reason, that portion shall be severed from the rest and shall not affect the agreement to resolve all controversies and claims through arbitration.
Since We always prefer to find ways to satisfy you as quickly and efficiently as possible, before initiating any arbitration proceeding, you agree to first discuss the matter informally with Us for at least 30 days. To do that, please send your full name and contact information, your concern and your proposed solution by mail to Us at: COLORWHALE. 800 Concar Drive, Suite 175, San Mateo, CA 94402, Attn: Legal.
(F) Governing Law. These Terms are governed by, and construed in accordance with, the laws of the State of California without giving effect to principles of conflicts of law. In the event of an Excluded Dispute, you agree to submit to the exclusive jurisdiction of the courts located in Santa Clara County of the State of California.
(g) Entire Agreement. These Terms together with the rules and Our policies herein by reference constitute the entire agreement between Us and you with respect to the subject matter of these Terms.
If you have questions about these Terms or would like to request a copy of these Terms or your use of the HOTCLE Services, please contact Us at email@example.com; You may also reach Us by physical mail at the following address: