VULUME TERMS OF SERVICE
WELCOME TO VULUME.COM. THESE TERMS AND CONDITIONS (THE “TERMS”) ARE A LEGAL CONTRACT BETWEEN YOU AND VULUME, INC. (“VULUME”, “THE COMPANY”, “WE”, “US”, OR “OUR”). THE TERMS EXPLAIN HOW YOU ARE PERMITTED TO USE THE WEBSITE LOCATED AT VULUME.COM, APPLICATIONS THAT VULUME MAY MAKE AVAILABLE FOR MOBILE DEVICES (“MOBILE APPLICATIONS”), AS WELL AS ALL ASSOCIATED SITES LINKED TO VULUME.COM BY THE COMPANY, ITS SUBSIDIARIES AND AFFILIATED COMPANIES (COLLECTIVELY, THE "SITE"). IF YOU ARE ACCESSING THIS SITE, MOBILE APPLICATIONS, OR THE SERVICES MADE AVAILABLE THROUGH THIS SITE (COLLECTIVELY, THE “SERVICES”) FOR YOUR COMPANY’S USE, YOU REPRESENT THAT YOU ARE AN AUTHORIZED REPRESENTATIVE WHO HAS THE AUTHORITY TO LEGALLY BIND YOUR COMPANY TO THESE TERMS. BY USING THIS SITE, YOU ARE AGREEING TO ALL THE TERMS; IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THIS SITE, ANY SERVICES OR ANY INFORMATION CONTAINED ON THIS SITE.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH THE COMPANY. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
By using the Site or Services, you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old, that you are using the Site with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to enter into these Terms. Further, you represent, acknowledge and agree that: (a) all registration information that you submit is truthful and accurate; (b) you will maintain the accuracy of such information and keep such information up-to-date; and (c) your use of this Site and the Services does not violate any applicable law or regulation. If you are a parent or legal guardian who is registering for a child, you hereby agree to bind your child to these Terms and to fully indemnify and hold harmless the Company if your child breaches or disaffirms any term or condition of these Terms.
We may make changes to the content and Services offered on this Site at any time. We can change, update, or add or remove provisions of these Terms, at any time. We will post the updated Terms on the Site and give you notice of changes on the Site homepage. We can deny, terminate, or suspend your use and/or access to the site at any time, with or without cause. Please review these Terms from time to time so that you will be apprised of any changes. By continuing to use this Site and/or any Services after the Company has updated these Terms, you are agreeing to all the updated Terms; if you do not agree with any of the updated Terms, you must stop using the Site and Services.
The Company provides content through the Site and through the Services that are the copyrighted and/or trademarked work of the Company or the Company’s third-party licensors, suppliers and/or other users of the Site and/or Services (collectively, the “Materials”). Materials may include logos, graphics, video, images, software and other content. Subject to the terms and conditions of these Terms, and your compliance with these Terms, the Company hereby grants you a limited, personal, non-exclusive, non-transferable, and revocable license to use and to display the Materials and to use this Site solely for your personal or internal business use and to use the Services as permitted by their features. Except for the foregoing license, you have no other rights in the Site, Services or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Site, Services or Materials in any manner. If you breach any of these Terms, the above license will terminate automatically and you must immediately destroy any downloaded or printed Materials.
In order to access and use certain areas of the Site and to use certain Services and Materials offered on and through the Site, you must register with the Company for an account and provide the Company with certain information about yourself and/or your organization.
Password Restricted Areas of this Site
If you desire to register for an account with the Company, you must submit the following information through the account registration page on the Site: Name, Username, Email Address, Password. You will also have the ability to provide additional optional information, such as: Company and Industry, Job Title, Phone Number, Business Location, Address, and other information which is not required to register for an account but may be helpful to us in providing you with more a more customized experience when using the Site or Services. Once you have submitted your account registration information, the Company will send you a confirmation email and you will be able to log in to your account with the password you selected in the registration process.
You are responsible for maintaining the confidentiality of your password ("Password”), and you are responsible for all activities that occur using your Password. You agree not to share your Password, let others access or use your Password or do anything else that might jeopardize the security of your Password. You agree to notify the Company if your Password is lost or stolen, if you are aware of any unauthorized use of your Password, or if you know of any other breach of security in relation to this Site or the Services.
All the information that you provide when registering for an account and otherwise through the Site and Services must be accurate, complete and up to date. You may change, correct or remove any information from your account by logging into your account directly and making the desired changes on your account settings page.
We may make available additional software to enhance your use of the Services (a “Bookmarklet”). To use the Bookmarklet you must have a computer running a compatible internet browser. The Company does not warrant that the Bookmarklet will be compatible with your computer or your other software. The Company hereby grants you a non-exclusive, non-transferable, revocable license to use the object code version of the Bookmarklet provided by the Company for one Company account on one computer owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Bookmarklet, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Bookmarklet to any third party or use the Bookmarklet to provide time sharing or similar services for any third party; (iii) make any copies of the Bookmarklet; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Bookmarklet, features that prevent or restrict use or copying of any content accessible through the Bookmarklet, or features that enforce limitations on use of the Bookmarklet; or (v) delete the copyright and other proprietary rights notices on the Bookmarklet. Any third-party code that may be incorporated in the Bookmarklet is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Bookmarklet or any copy thereof, and the Company and/or its third party partners or suppliers retain all right, title, and interest in the Bookmarklet (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these terms, is void. The Company reserves all rights not expressly granted under these terms. You agree to comply with all United States and foreign laws related to use of the Bookmarklet.
By registering for an account with the Company, you become a “Member” with access to certain password-restricted areas of the Site and to use the Services and Materials offered on and through the Site (a “Membership”). Each Membership and the rights and privileges provided to a Member is personal and non-transferable. All sales and payments of Membership fees will be in US Dollars.
If you select a free Membership, you will not be required to pay Membership fees, but you will not be able to access the full functionality of the Service. For example, you may not be able to create a private project.
If you select a paid Membership, you will be able to access the full functionality of the Service as defined by your selected plan. The initial fee that we will charge you for your Membership will be the price posted for your plan at vulume.com/about/plans on the date that you register as a Member. The Company reserves the right to change prices for Memberships at any time, and does not provide price protection or refunds in the event of promotions or price decreases.
You may pay for your Membership fee only with credit card payments (Visa, MasterCard, and American Express). We will charge your credit card for your first Membership fee on the date that we process your account registration (or if you sign-up for a Membership that includes a free-trial period, we will charge your credit card for your first Membership fee upon your upgrade to a paid Membership). Once your credit card is charged the first Membership fee (or if you sign-up for a Membership that includes a free-trial period, once we have processed your order for your Membership), you will receive a confirmation e-mail notifying you of your ability to access those Membership-only portions of the Site and Services.
IMPORTANT NOTICE: THE COMPANY WILL AUTOMATICALLY RENEW YOUR MEMBERSHIP ON YOUR MONTHLY ANNIVERSARY DATE AND, AS AUTHORIZED BY YOU DURING THE MEMBERSHIP SIGN-UP PROCESS, THE COMPANY WILL CHARGE YOUR CREDIT OR DEBIT CARD WITH THE APPLICABLE MONTHLY MEMBERSHIP (UNLESS YOU CANCEL PRIOR TO THE ANNIVERSARY DATE) ON EACH SUBSEQUENT ANNIVERARY DATE. FOR PURPOSES OF THIS SECTION, “ANNIVERSARY DATE" MEANS THE DATE OF THE MONTH YOU INITIALLY REGISTERED AS A PAID MEMBER. IF YOUR ANNIVERSARY DATE IS DATE IN A CALENDAR MONTH WHICH DOES EXIST IN EVERY CALENDAR MONTH, THEN, IN MONTHS THAT DO NOT HAVE THAT DATE, YOUR ANNIVERSARY DATE WILL BE THE LAST DATE OF THAT MONTH (I.E. IF YOUR ANNIVERSARY DATE IS THE 30TH, THEN IN FEBRUARY, YOUR ANNIVERSARY DATE IN FEBRUARY WILL BE EITHER FEBRUARY 28 OR 29, DEPENDING ON THE YEAR). EACH MEMBERSHIP RENEWAL PERIOD IS FOR ONE CALENDAR MONTH. YOU MAY CANCEL YOUR MEMBERSHIP AT ANY TIME LOGGING INTO YOUR ACCOUNT AND CHOOSING TO CANCEL THROUGH THE APPLICABLE LINK ON YOUR ACCOUNT PAGE. NOTIFYING US THROUGH EMAIL OR PHONE IS NOT CONSIDERED A CANCELLATION. THE COMPANY REQUIRES A REASONABLE AMOUNT OF TIME TO PROCESS YOUR MEMBERSHIP CANCELLATION REQUEST. IF YOU CANCEL YOUR MEMBERSHIP, YOU WILL ENJOY YOUR MEMBERSHIP BENEFITS UNTIL THE EXPIRATION OF THE THEN-CURRENT MONTHLY MEMBERSHIP TERM FOR WHICH YOU HAVE PAID, AND YOUR MEMBERSHIP BENEFITS WILL EXPIRE AT THE END OF THAT THEN-CURRENT MONTHLY MEMBERSHIP TERM.
You will be liable for paying any and all applicable sales and use taxes for the purchase of your Membership based on the mailing address that you provide when you register as a Member, and you authorize the Company to charge your credit or debit card for any such applicable taxes.
Purchases and Payments
If you pay Membership fees or make purchases in our online store, you agree to pay all fees or charges made to your credit card based on the Company’s fees, charges, and billing terms then in effect as shown on vulume.com/about/plans. You are responsible for paying any taxes that may apply to any purchase you make. If you do not pay on time or if the Company or a third party processor working on the Company’s behalf cannot charge your credit card for any reason, the Company reserves the right to either suspend or terminate your access to the Site and Services and/or terminate these terms. You are expressly agreeing that the Company and/or its third party payment processor is permitted to bill you for the applicable fees, any applicable tax and any other charges you may incur in connection with your use of the Site and Services and that the fees will be billed to the credit card you designate when making your purchase or registering for your Membership, as applicable.
By using the Site and/or the Services provided on or through the Site, you consent to receiving electronic communications from the Company. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Site and/or Services provided on or through the Site. These electronic communications are part of your relationship with the Company. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
Links to Third Party Sites
You are responsible for the information, opinions, messages, comments, photos, videos, documents, graphics, sounds and other content or material that you submit, upload, post or otherwise make available (each a “Submission”) on or through the Site and/or Services. You may not upload, post or otherwise make available on this Site or through the Services any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right owned by a third party, and the burden of determining whether any material is protected by any such right is on you. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, violation of contract, privacy or publicity rights or any other harm resulting from any Submission that you make. You have full responsibility for each Submission you make, including its legality, reliability and appropriateness.
You agree to pay for all royalties, fees, damages and any other monies owing any person by reason of any Submissions posted by you to or through this Site.
When you provide Submissions you agree that those Submissions shall not be in violation of the “Unauthorized Activities” paragraph below. Those prohibitions do not require the Company to monitor, police or remove any Submissions or other information submitted by you or any other user. Subject to the license described above, the Company acknowledges and agrees that you, or your licensors as applicable, retain ownership of any and all copyrights in the Submissions, and that no ownership of such copyrights is transferred to the Company under these terms. [Further, with respect to Submissions in the form of photos, videos, documents or graphics (“images”), and subject to Company product and user experience considerations (a) the Company will use commercially reasonable efforts to maintain the attribution of such images as submitted by you, and (b) the Company will not license or sublicense to third parties images submitted by you, except in each case for a Company Marketing Purpose. A “Company Marketing Purpose” means any use in connection with a Company-branded or co-branded website, application, publication or service, or any use which advertises, markets or promotes the Company, or its affiliates.]
When using this Site and/or the services, you agree not to:
- Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
- Use racially, ethnically, or otherwise offensive language.
- Discuss or incite illegal activity.
- Use explicit/obscene language or solicit/post sexually explicit images (actual or simulated).
- Post anything that exploits children or minors or that depicts cruelty to animals.
- Post any copyrighted or trademarked materials without the express permission from the owner.
- Disseminate any unsolicited or unauthorized advertising, promotional materials, 'junk mail', 'spam', 'chain letters', 'pyramid schemes', or any other form of such solicitation.
- Use any robot, spider, scraper or other automated means to access the Site.
- Take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
- Alter the opinions or comments posted by others on this Site.
- Post anything libelous, tortious, hateful, discriminatory, pornographic or obscene.
- Post anything contrary to Vulume's public image, goodwill or reputation.
This list of prohibitions provides examples and is not complete or exclusive. The Company reserves the right to (a) terminate access to your account, your ability to post to this Site (or use the Services) and (b) refuse, delete or remove any Submissions; with or without cause and with or without notice, for any reason or no reason, or for any action that the Company determines is inappropriate or disruptive to this Site or to any other user of this Site and/or Services. The Company may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at the Company’s discretion, the Company will cooperate with law enforcement agencies in any investigation of alleged illegal activity on this Site or on the Internet. Unauthorized use of any Materials contained on this Site and/or in the Services may violate certain laws and regulations. You agree to indemnify and hold the Company and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees and costs of defense) the Company or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third party that your use of this Site or the use of this Site by any person using your user name and/or password (including without limitation, your participation in the posting areas or, your Submissions) violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third party.
Vulume is a trademark of the Company. Other trademarks, names and logos on this Site are the property of their respective owners. Unless otherwise specified in these Terms, all information and screens appearing on this Site, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of the Company. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license. Any software that is provided to you through the Site and Services (including, but not limited to the Bookmarklet) and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, if You are a government entity, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
Intellectual Property Infringement
The Company respects the intellectual property rights of others, and we ask you to do the same. The Company may, in appropriate circumstances and at our discretion, terminate service and/or access to this Site for users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on our Site, please provide the Company’s designated agent the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at the Site, and information reasonably sufficient to permit the Company to locate the material.
- Information reasonably sufficient to permit the Company to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The Company’s agent for notice of claims of copyright or trademark infringement on this Site or in connection with the Services can be reached as follows: Vulume Copyright Agent, Vulume.com, P.O Box 8616 Aspen, CO. 81612
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability. Submitting a DMCA Counter-Notification
We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a valid DMCA take-down notice that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to the Company designated agent that includes all of the following information:
- Your physical or electronic signature
- Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
- A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
- Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which the Company may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
Termination of Repeat Infringers
The Company reserves the right, in its sole discretion, to terminate the account or access of any user of our web site and/or service who is the subject or repeated DMCA or other infringement notifications.
Disclaimer of Warranties
Your use of this Site and/or the Services is at your own risk. The Materials have not been verified or authenticated in whole or in part by the Company, and they may include inaccuracies or typographical or other errors. The Company does not warrant the accuracy of timeliness of the Materials contained on this Site. The Company has no liability for any errors or omissions in the Materials, whether provided by the Company, our licensors or suppliers or other users.
THE COMPANY, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THIS SITE, THE SERVICES, OR ANY MATERIALS, RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE, INCLUDING WITHOUT LIMITATION THE MATERIALS. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS SITE, THE SERVICES, AND MATERIALS, AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. THE COMPANY DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.
Limitation of Liability
THE COMPANY SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING MATERIALS TO OR FROM THIS SITE. IN NO EVENT SHALL THE COMPANY BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF THE COMPANY KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE.
Local Laws; Export Control
The Company controls and operates this Site from its headquarters in the United States of America and the Materials may not be appropriate or available for use in other locations. If you use this Site outside the United States of America, you are responsible for following applicable local laws.
If you send or transmit any communications, comments, questions, suggestions, or related materials to the Company, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Site, any Services offered through the Site or Materials, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and the Company is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that the Company is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
Dispute Resolution and Arbitration; Class Action Waiver
Please read this carefully. It affects your rights. Most customer concerns can be resolved quickly and to a customer’s satisfaction by contacting us at email@example.com. This Provision facilitates the prompt and efficient resolution of any disputes that may arise between you and the Company. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury. Please read this Provision carefully. It provides that all Disputes between you and the Company shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees).
For the purpose of this Provision, “The Company” means the Company and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and the Company regarding any aspect of your relationship with the Company, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as the Company’s licensors, suppliers, dealers or third party vendors) whenever you also assert claims against us in the same proceeding.
WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give the Company an opportunity to resolve the Dispute. You must commence this process by mailing written notification to Vulume, Inc., P.O. Box 8616, Aspen, CO. 81612. That written notification must include (1) your name, (2) your address, (3) email address, (4) phone number, (5) a written description of your Claim, and (6) a description of the specific relief you seek. If the Company does not resolve the Dispute within 90 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or the Company may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Provision by mailing written notification to Vulume, Inc., P.O. Box 8616, Aspen, CO. 81612. Your written notification must include (1) your name, (2) your address, (3) your username, (4) your email address, and (3) a clear statement that you do not wish to resolve disputes with the Company through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with the Company. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or the Company may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision. For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because the Site and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit. Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration
You or the Company may initiate arbitration in either Colorado or the federal judicial district that includes your billing address. In the event that you select the federal judicial district that includes your billing address, the Company may transfer the arbitration to Colorado in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.
Payment of Arbitration Fees and Costs
The Company will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with the Company as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and the Company specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Site can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
You understand and agree that by entering into this Agreement you and the Company are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and the Company might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.
This Provision shall survive the termination of your service with the Company or its affiliates. Notwithstanding any provision in this Agreement to the contrary, we agree that if the Company makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require the Company to adhere to the language in this Provision if a dispute between us arises.
The Company prefers to advise you if we feel you are not complying with these Terms and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by the Company, may result in immediate termination of your access to this Site without prior notice to you. The Federal Arbitration Act, Colorado state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement. Except for Disputes subject to arbitration as described above, any disputes relating to these Terms or this Site will be heard in the courts located in Colorado. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. The Company’s failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and the Company and supersede all prior or contemporaneous negotiations, discussions or agreements between you and the Company about this Site. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
If you have any questions about these Terms or otherwise need to contact the Company for any reason, you can reach us at Vulume Support firstname.lastname@example.org.
Last updated November 6, 2013