Last Updated: May 9th, 2016
Welcome, and thank you for your interest in AURAIA INC. (“AURAIA”, “we,” or “us”) and our mobile (including tablet) applications and other downloadable software (“Apps”), web sites, networks, embeddable widgets, and other services provided by us (our “Service”). These Terms of Service is a legally binding contract between you and AURAIA regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS OF SERVICE CAREFULLY. BY REGISTERING AN ACCOUNT, SUBMITTING INFORMATION OR BY OTHERWISE ACCESSING OR USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY ALL THE FOLLOWING TERMS AND CONDITIONS, INCLUDING THE AURAIA (TOGETHER, THE “TERMS”). If you are not eligible, or do not agree to these Terms, then you do not have our permission to use the Service.
These Terms provide that all disputes between you and AURAIA will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review the “Dispute Resolution and Arbitration” section below for the details regarding your agreement to arbitrate any disputes with AURAIA.
1. AURAIA Service Overview. AURAIA is a cross-platform solution aimed at keeping users healthy by helping them avoid breathing polluted air. Among other features, users will be able to check pollution exposures in near real-time, locate clean air and receive alerts regarding pollution events.
2. Eligibility. You must be at least thirteen (13) years of age to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least thirteen (13) years of age; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
3. Accounts and Registration. To access many features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your Facebook information, e-mail address or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. You are solely responsible for all activities that occur under your account. If you lose your device or have other reason to believe that your account is no longer secure, please notify us immediately at “firstname.lastname@example.org”.
4. Payment. Access to the Service, or to certain features of the Service, may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. dollars and, except as expressly stated in Section10 below, are non-refundable. If AURAIA changes the fees for the Service, including by adding additional fees or charges, AURAIA will provide you advance notice of those changes. If you do not accept the changes, AURAIA may discontinue providing the Service to you. AURAIA will charge the payment method you specify at the time of purchase. You authorize AURAIA to charge all sums as described in these Terms, for the Service you select, to that payment method. If you pay any fees with a credit card, AURAIA may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. The Service may include functionality for activating, updating or canceling recurring payments for periodic charges. If you activate or update recurring payments through the Service, you authorize AURAIA to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. If you use the Service to update or cancel any existing authorized one-time or recurring payment, it may take up to 30 business days for the update or cancellation to take effect.
5. Use of Apps. Your use of the Apps is subject to and conditioned upon the following terms. If you are using the Apps on an iOS device, you also agree to and acknowledge the “Notice Regarding Apple” at the end of these Terms.
5.1 – Limited License. Unless accompanied by separate license terms, subject to your complete and ongoing compliance with all the Terms (including without limitation compliance with all license restrictions, which are all conditions precedent to your license rights), AURAIA grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use one copy of the App downloaded directly from AURAIA or from a legitimate marketplace (such as Apple’s iTunes store or the Google Play store), solely in object code format, for your personal use for lawful purposes, on a single compatible device that you own or control, and for the sole purpose of accessing and using the Service in accordance with the Terms. You may not reproduce, distribute, publicly display, or publicly perform the App. Except if, and solely to the extent that, such a restriction is impermissible under applicable law or applicable Third Party Terms (defined below), you may not (a) decompile, reverse engineer, or otherwise access or attempt to access the source code for the App, or make or attempt to make any modification to the App; or (b) interfere with or circumvent any feature of the App, including without limitation any security, or access control mechanism. You may not use the App or the Service for any purpose other than a purpose for which the App and the Service are expressly designed.
5.2 – Third Party Software: The Apps may consist of a package of components, which may include certain third party software (“Third Party Software”) provided under separate license terms (the “Third Party Terms”). Your use of the Third Party Software in conjunction with the App in a manner consistent with these Terms is permitted, however, you may have broader rights under the applicable Third Party Terms and nothing in these Terms is intended to impose further restrictions on your use of the Third Party Software.
5.3 – Third Party Services. You are solely responsible for your use of the Service on your device, including without limitation compliance with these Terms and any applicable Third Party Terms, and payment of any applicable third party fees. Without limiting the foregoing, you are solely responsible for the payment of all applicable fees associated with any mobile network carrier or wireless access service plan you use in connection with your use of the Service (such as voice, data, SMS, MMS, roaming, other applicable fees charged by the carrier). Accordingly, you should use care in selecting a service plan offered by your carrier.
5.4 – Location-Based Services. Some of the features of the Service may enable AURAIA to access your location in order to tailor your experience with the Service based on your location (“Location-Based Services”). In order to use certain Location-Based Services, you must enable certain features of your mobile phone, such as GPS, Wi-Fi, and/or Bluetooth, which enable us to identify your location through a variety of means, including GPS location, IP address, cell tower location, magnetic field sensors, geo-fencing technology, or detection by physical on-location Wi-Fi or Bluetooth sensors, as available. To the extent your location is collected through Wi-Fi, Bluetooth or other similar sensors, such sensors, and the associated data services, may be provided by a third party, and you agree and acknowledge that such third party may access such information for the purpose of providing such data services to us. If you choose to disable any Location-Based Services on your device and/or opt out of any Location-Based Services through the App’s Settings menu, you will not be able to utilize certain features of the Service. By enabling Location-Based Services on your device, you agree and acknowledge that (i) device data we collect from you is directly relevant to your use of the Service, (ii) we may provide Location-Based Services related to and based on your then-current location, and (iii) we may use any such information collected through the process of providing Location-Based Services in connection with our Service. PLEASE NOTE THAT LOCATION DATA MAY NOT ALWAYS BE ACCURATE INCLUDING MAPS, WEATHER FORECASTS AND POLLUTION REPORTS, AND AURAIA DISCLAIMS ANY AND ALL WARRANTIES RELATED TO LOCATION-BASED SERVICES.
6. User Content
6.1 – User Content Generally. Certain features of the Service may permit users to upload content to the Service, including messages, reviews, alerts, photos, video, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on the Service. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Service.
6.2 – Limited License Grant to AURAIA. By posting or publishing User Content, you grant AURAIA a worldwide, non-exclusive, royalty-free, perpetual (solely with respect to photographs submitted by users, including photographs of skies, skylines, cityscapes, landscapes, nature, pollution, and pollution events), fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
6.3 – Limited License Grant to Other Users. By posting or sharing User Content with other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
6.4 – User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:
a – you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize AURAIA and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by AURAIA, the Service, and these Terms; and
b – your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause AURAIA to violate any law or regulation.
6.5 – User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. AURAIA may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against AURAIA with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, AURAIA does not permit copyright-infringing activities on the Service.
7. Digital Millennium Copyright Act
7.1 – DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent via email at email@example.com.
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
a – an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
b – a description of the copyright-protected work or other intellectual property right that you claim has been infringed;
c – a description of the material that you claim is infringing and where it is located on the Service;
d – your address, telephone number, and email address;
e- a statement by you that you have a good faith belief that the use of those materials on the Service is not authorized by the copyright owner, its agent, or the law; and
f – a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
7.2 Repeat Infringers. AURAIA will promptly terminate the accounts of users that are determined by AURAIA to be repeat infringers.
8. Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO, OR ATTEMPT TO (AND YOU AGREE THAT YOUR RIGHTS HEREUNDER ARE CONDITIONED ON YOUR COMPLIANCE WITH THE FOLLOWING):
8.1 – use the Service for any illegal purpose or in violation of any local, state, national, or international law;
8.2 – violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right, or violating any right of publicity or privacy;
8.3 – post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
8.4 – interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use, modification, or copying of any content; or, (b) reverse engineering or otherwise attempting to discover the source code or any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
8.5 – Buy, sell, or trade Reputation Data, or modify any person’s Reputation Data by improper means;
8.6 – interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) attempting to collect personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any such network, equipment, or server;
8.7 – perform any fraudulent activity including issuing false weather or pollution alerts or sightings, impersonating any person or entity, claiming a false affiliation, falsely claiming to have received services from a particular person, accessing any other Service account without permission, or falsifying your age or date of birth;
8.8 – sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 133) or any right or ability to view, access, or use any Material; or
8.9 – attempt to do any of the acts described in this Section 8, or assist or permit any person in engaging in any of the acts described in this Section 8.
9. Third-Party Services and Linked Websites. AURAIA may provide tools through the Service that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on AURAIA with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that we may transfer and disclose that information to and on the applicable third party service. Third party services are not under our control, and we are not responsible for any third party service’s use of your exported information. We may also provide certain features through the Service which make use of data provided by third parties such as the US government or The Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.
10. Termination of Use; Discontinuation and Modification of the Service. You may terminate your account at any time by deleting your registered user account or by contacting customer service at “firstname.lastname@example.org”. If you terminate your account, you remain obligated to pay all outstanding fees, if any, incurred prior to termination relating to your use of the Service. If you violate any provision of these Terms, your permission from us to use the Service will terminate automatically. In addition, AURAIA may in its sole discretion terminate your user account on the Service or suspend or terminate your access to the Service at any time for any reason or no reason, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. If we terminate your use of the Service permanently without cause and without notice, we will refund any pre-paid subscription fee that has actually been paid to AURAIA for the month, or applicable billing term as otherwise specified by AURAIA, of Service that such user was unable to receive due to termination. Other than the remedy described in the immediately preceding sentence, we will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.
11.2 – Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”), such as end-user license agreements for any downloadable software applications, or rules that applicable to a particular feature or content on the Service, subject to Section 11 All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
12. Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your right or obligations, you will be required to accept the modified Terms in order to continue to use the Service. Modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
13. Ownership; Proprietary Rights. The Service is owned and operated by AURAIA. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by AURAIA are protected by intellectual property and other laws. All Materials contained in the Service are the property of AURAIA or our third-party licensors. Except as expressly authorized by AURAIA, you may not make use of the Materials. AURAIA reserves all rights to the Materials not granted expressly in these Terms.
14. User Input. If you choose to provide input and suggestions regarding problems with, or proposed modifications or improvements to, the Service (“User Input”), then you hereby grant AURAIA an unrestricted perpetual, irrevocable, non-exclusive, fully-paid, royalty-free, sublicensable, transferable right and license to use and exploit the User Input in any manner and for any purpose, including to improve the Service and create other products and services.
15. Indemnity: You are responsible for your use of the Service, and you will to defend and indemnify AURAIA and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “AURAIA”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
16. Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE AURAIA ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE AURAIA ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. Please note that the Materials and content may include technical inaccuracies or typographical errors. In addition, you may find that weather, construction projects, pollution events and notifications, traffic conditions, or other events may cause road conditions to differ from the any information made available through the Service. You are solely responsible for obeying the rules of the road at all times and complying with all posted signage.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE AURAIA ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PROPERTY OF OTHERS (INCLUDING YOUR DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
17. Limitation of Liability
IN NO EVENT WILL THE AURAIA ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY AURAIA ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
YOU AGREE THAT IF ANY LAWSUIT OR COURT PROCEEDING IS PERMITTED UNDER THESE TERMS, THE AGGREGATE LIABILITY OF THE AURAIA ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO AURAIA FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCE(S) GIVING RISE TO THE CLAIM; OR (B) $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 17 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
18. Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. If and to the extent any lawsuit or court proceeding is permitted under these Terms, you and AURAIA agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara county, California for the purpose of litigating any dispute. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
20. Dispute Resolution and Arbitration
20.1 – Generally. In the interest of resolving disputes between you and Company in the most expedient and cost effective manner, you and AURAIA agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND AURAIA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
20.2 – Exceptions. Despite the provisions of Section 1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
20.3 – Arbitrator. Any arbitration between you and AURAIA will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting AURAIA.
20.4 – Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). AURAIA’s address for Notice is: AURAIA INC., 660 4th St., Suite #433 San Francisco, CA 94107. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or AURAIA may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or AURAIA must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, AURAIA will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by AURAIA in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
20.5 – Fees. If you commence arbitration in accordance with these Terms, AURAIA will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in [Santa Clara County], [California], but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse AURAIA for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
20.6 – No Class Actions. YOU AND AURAIA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and AURAIA agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
20.7 – Modifications to this Arbitration Provision. If AURAIA makes any future change to this arbitration provision, other than a change to AURAIA’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to AURAIA’s address for Notice, in which case your account with AURAIA will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
20.8 – Enforceability. If Section 6 is found to be unenforceable or if the entirety of this Section 200 is found to be unenforceable, then the entirety of this Section 200 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 188 will govern any action arising out of or related to these Terms.
22 – Contact Information. The Service is offered by AURAIA INC., located at 660 4th St., Suite #433, San Francisco, CA 94107. You may contact us by sending correspondence to that address or by emailing us at email@example.com.
23 – Notice Regarding Apple. If you are using our mobile applications on an iOS device, the terms of this Section 23 apply. You acknowledge that these Terms are between you and AURAIA only, not with Apple, and Apple is not responsible for the Service or its content. Apple has no obligation to furnish any maintenance or support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claim by you or any third party relating to the Service or your possession or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement or discharge of any third party claim that the Service or your possession and use of the mobile application infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of Section 9 of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce this Section 10 of these Terms against you. You hereby represent and warrant that: (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.