PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE CONTINUING TO USE ANY Downloadxy SITE (Which includes mobile sites).
By continuing to access and/or use any Downloadxy Site following any update to these Terms, you are indicating and deemed to have agreed that that you have read, understand, and agree to its updates and modifications and the entirety of the updated Terms.
ARBITRATION AND CLASS ACTION AND JURY WAIVER NOTICE SUMMARY: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT (IN SECTION 17), YOU AGREE THAT DISPUTES BETWEEN YOU AND Downloadxy WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION, CONSOLIDATION, COURT PROCEEDING, OR JURY TRIAL, ALL AS SET FORTH IN THE ARBITRATION AGREEMENT SECTION (SECTION 17).
MODIFICATION NOTICE SUMMARY: WE HAVE THE RIGHT TO MODIFY THIS AGREEMENT, EFFECTIVE IMMEDIATELY, AT ANY TIME AND WITHOUT NOTICE OTHER THAN POSTING THE MODIFIED AGREEMENT. (Section 6 has more detail.) IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOU SHALL CEASE USING ANY Downloadxy SITE, OR SERVICES, IF YOU DO NOT CEASE USING ANY Downloadxy SITE, OR SERVICES YOU WILL BE CONCLUSIVELY DEEMED TO HAVE AGREED TO AND ACCEPTED THE MODIFICATION(S).
1. Downloadxy is willing to license the use and access of any Downloadxy Site, or services to you only upon the condition that you accept all the terms contained in this Agreement. By accessing or using any Downloadxy Site, or services you represent and warrant that (1) you are thirteen (13) years of age or older, and that if you are under 18 years of age, you possess legal and guardian consent to use the Downloadxy Site, , or services, and that the person entering into this Agreement on behalf of a child between the ages of 13 and 18 years old is at the parent or legal guardian of such child, (2) that you have not been previously suspended or removed from access to or use of any Downloadxy Site, or services, (3) that you are fully able and competent to enter into and you understand the Agreement, and (4) you accept and agree to be bound by all of the terms of the Agreement. The term "you" or "your" (whether lowercase, uppercase, or initial caps) includes any of your subsidiaries, affiliates, employees, and parent or legal guardian.
IF YOU ARE USING ANY Downloadxy SITE, OR SERVICES ON BEHALF OF A COMPANY, ENTITY, OR ORGANIZATION (COLLECTIVELY, A "SUBSCRIBING ORGANIZATION") THEN YOU REPRESENT AND WARRANT THAT YOU: (I) ARE AN AUTHORIZED REPRESENTATIVE OF THAT SUBSCRIBING ORGANIZATION WITH THE AUTHORITY TO BIND SUCH ORGANIZATION TO THE TERMS; (II) HAVE READ THE TERMS; (III) UNDERSTAND THE TERMS, AND (IV) AGREE TO THE TERMS ON BEHALF OF SUCH SUBSCRIBING ORGANIZATION.
If you do not accept all the terms of this Agreement, then Downloadxy is unwilling to license any Downloadxy Site, or services to you, and must and will stop using any Downloadxy Site, or services.
2. Grant of License.
Conditioned upon your compliance with the term, conditions, and covenants of this Agreement, Downloadxy grants you a non-exclusive and non-transferable license to access and use any Downloadxy Site, or services.
(a) Your license will continue until terminated in accordance with this Agreement. Downloadxy may terminate your license at any time at its sole and unfettered discretion. The license granted under this Agreement will automatically terminate, with or without notice from Downloadxy, if you breach any term of this Agreement. If you assert any copyright or patents against us or any of our other customers based on use of the Software, any Downloadxy Site, or services, your license to any Downloadxy Site, or services ends automatically.
(b) Effects of Termination. The provisions of these Terms, which by their nature should survive the termination or expiration of these Terms, will survive such termination or expiration. Upon termination or expiration of this Agreement, your rights to use any Downloadxy Site, or services cease.
4. Certain Rights You Grant To Downloadxy
By accessing or using any Downloadxy Site, or services on your computer, you obviously expressly authorize and request that any Downloadxy Site, or services perform its intended functions.
6. MODIFICATION OF TERMS
We may provide You with notices, including those regarding changes to the Terms, by email (if you provide us with your email address) or postings on, or through any Downloadxy Site, or services (including https://www.downloadxy.com/terms-of-service.html) You agree that notice posted on or through any Downloadxy Site, or services is deemed given upon the initial posting, even if there is also notice given in any other way. When You visit any Downloadxy Site, or services or send Us e-mails, You are communicating with Us electronically. You consent to receive communications from Us electronically. We may communicate with You by e-mail, or by posting notices on any Downloadxy Site, or services. You agree that all agreements, notices, disclosures, and other communications that We provide to You electronically satisfy any legal requirement that such communications be in writing.
8. Intellectual Property.
Downloadxy™ is a trademark of Downloadxy. Other trademarks, names, and logos on or within any Downloadxy Site, or services are the property of their respective owners. The trademarks, logos, and service marks displayed on or within any Downloadxy Site, or services (collectively the "Trademarks") are the registered and unregistered trademarks of Downloadxy, its licensors, suppliers, and others. The Trademarks owned by Downloadxy, whether registered or unregistered, may not be used in connection with any product or service that is not Downloadxy's in any manner that may cause confusion with or to consumers or customers, or in any manner that disparages Downloadxy or blurs, tarnishes, or dilutes the Trademarks or Downloadxy. Nothing contained on or within any Downloadxy Site, or services, communication, or herein should be construed as granting, by implication, estoppel, waiver, or otherwise, any license or right to use any Trademark without the express written permission of Downloadxy, its licensors, suppliers, or the third party owner of any such Trademark. Misuse of any Trademarks is prohibited, and Downloadxy may aggressively enforce its intellectual property rights in such Trademarks, including via civil and criminal proceedings. You acknowledge that Downloadxy and its partners and affiliates own all rights, title and interest in any Downloadxy Site, or services, and services provided through or in conjunction with any Downloadxy Site, or services, including without limitation all Intellectual Property Rights. "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide. You agree not to modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any Downloadxy Site, or services. You also agree to not remove, obscure, or alter any copyright notice, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through any Downloadxy Site, or services.
9. PREVENTION OF UNAUTHORIZED USE
Downloadxy reserves the right to exercise whatever lawful means it deems necessary in its sole and unfettered discretion to prevent unauthorized use of any Downloadxy Site, or services, including, but not limited to, technological barriers, IP mapping, and directly contacting Your Internet Service Provider (ISP) regarding such unauthorized use. Downloadxy reserves the right to monitor Your use of any Downloadxy Site, or services, to ensure compliance with this Agreement. If Downloadxy, or its affiliates, or assignees, in their sole and unfettered discretion, determine that You are not in compliance with this Agreement, Downloadxy reserves the right to take such action deemed necessary to resolve this issue.
10. Limited Warranty; Disclaimer.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (a) THE LIMITED WARRANTY SET FORTH IN THIS SECTION 10 IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED; AND (b) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION , Downloadxy DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM Downloadxy OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. Downloadxy does not warrant that any Downloadxy Site, or services will meet your requirements, that any Downloadxy Site, or services will operate in the combinations that you may select for Execution, that the operation of any Downloadxy Site, or services will be error-free or uninterrupted, or that all any Downloadxy Site, or services errors will be corrected. Downloadxy specifically disclaims any warranty or representation as to any Downloadxy Site, or services's ability to eliminate any specific malware threats or the completeness of the Database or protection modules.
11. ADDITIONAL DISCLAIMER OF WARRANTIES AND PROMISSORY ESTOPPEL
YOUR USE OF ANY Downloadxy SITE, OR SERVICES, OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS IS AT YOUR OWN RISK. Downloadxy IS NOT RESPONSIBLE OR LIABLE FOR ANY FAILURE OF ANY SITE, , OR SERVICES (OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS) TO OPERATE, FOR ANY ERRORS IN OR IN CONNECTION WITH ANY SITE, , OR SERVICES (OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS), OR ANY ERRORS (INCLUDING OMISSIONS) IN ANY SITE, OR SERVICES, OR FOR ANY LACK OF ACCESS TO ANY SITE, , OR SERVICES (OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS). Downloadxy HAS NO LIABILITY FOR ANY ERRORS OR OMISSIONS IN ANY SITE, , OR SERVICES, OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS, WHETHER PROVIDED BY US OR OUR SUPPLIERS OR LICENSORS (OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS).
Downloadxy, FOR ITSELF AND ITS LICENSORS, DISCLAIMS, AND MAKES NO EXPRESS, IMPLIED, OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH ANY SITE, OR SERVICES (OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS) INCLUDING RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY, OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON OR THROUGH ANY SITE, OR SERVICES (OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS). UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH SITE, AND SERVICES, AND ANY INFORMATION OR MATERIAL (OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS) CONTAINED OR PRESENTED ON OR THROUGH EACH ANY SITE, OR SERVICES IS PROVIDED TO YOU ON AN "AS IS", "AS AVAILABLE", AND "WHERE IS" BASIS WITH NO WARRANTY OR EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. IN NO EVENT WILL Downloadxy, OR ITS AGENTS, OFFICERS, OR ATTORNEYS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE YOUR COMPUTER, YOUR BROWSERS, PROGRAM, ANY SITE, , OR SERVICE (OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS), EVEN IF Downloadxy HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Downloadxy DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE, OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.
REGARDLESS OF SUPPOSED OR ACTUAL REPRESENTATIONS MADE TO YOU ORALLY OR IN WRITING BY Downloadxy CONCERNING ACTIONS Downloadxy MAY OR WILL TAKE, OR MAY NOT OR WILL NOT TAKE, YOU MAY NOT AND WILL NOT RELY UPON SAME, AND WILL NOT BRING OR PARTICIPATE IN ANY ACTION OR CLAIMS REGARDING SAME, AND YOU WAIVE ALL RIGHTS AND CLAIMS INCLUDING FOR BREACH OR PROMISSORY ESTOPPEL, UNDER LAW AND EQUITY.
12. LIMITATION OF LIABILITY AND DAMAGES
12.1 LIMITATION OF LIABILITY
WE WILL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR ACCESS TO OR USE OF ANY SITE, OR SERVICES, OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS. WE WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY FAILURE OF ANY PROGRAM, SITE, OR SERVICES, TO OPERATE, FOR ANY ERRORS IN OR IN CONNECTION WITH ANY PROGRAM, SITE, OR SERVICES, OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS, OR FOR ANY LACK OF ACCESS TO ANY SITE, OR SERVICES, OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS. WE MAY INTERRUPT ANY Downloadxy SITE, OR SERVICES AT ANY TIME TO PERFORM MAINTENANCE, TO ADDRESS SECURITY BREACHES, OR FOR ANY OTHER REASON, OR NO REASON AT ALL, WITH NO LIABILITY TO YOU WHATSOEVER. IN NO EVENT WILL WE BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, RELIANCE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE, ANY DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) HOWEVER ARISING, EVEN IF WE KNOWSOR HAVE BEEN ADVISED THERE IS A POSSIBILITY OF SUCH DAMAGE. THE LIABILITIES LIMITED BY THIS SECTION INCLUDE, WITHOUT LIMITATION, LIABILITY FOR NEGLIGENCE. THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD, LICENSED, OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN US AND RECEIVED THROUGH OR ADVERTISED ON ANY Downloadxy SITE, OR SERVICES, SITE, , SERVICE, OR RECEIVED THROUGH ANY REFERENCE SITES.
THESE TERMS DO NOT GRANT YOU OR ANY THIRD PARTY NOT IN PRIVITY TO THIS AGREEMENT ANY GREATER OR ADDITIONAL RIGHTS OR REMEDIES AGAINST YOU OR US THAN SUCH THIRD PARTY MIGHT OTHERWISE HAVE ABSENT THESE TERMS. THESE TERMS DO NOT GRANT ANY THIRD PARTY BENEFICIARY RIGHTS, AND SUCH RIGHTS ARE EXPRESSLY DISCLAIMED.
12.2 LIMITATION OF DAMAGES
IN NO EVENT WILL Downloadxy OR ITS AFFILIATES', CONTRACTORS', EMPLOYEES', AGENTS', ATTORNEYS', OR THIRD-PARTY PARTNERS', LICENSORS', OR SUPPLIERS' TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, CLAIMS, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS, OR YOUR USE OF ANY SITE, OR SERVICES, OR REFERENCE SITES, OR YOUR INTERACTION WITH OTHER USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING OR USING ANY Downloadxy SITE, OR SERVICES, SITE, OR SERVICE, DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER. THE LIABILITIES LIMITED BY THIS SECTION INCLUDE, WITHOUT LIMITATION, LIABILITY FOR NEGLIGENCE.
THESE LIMITATIONS OF DAMAGES ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES AND RECEIVED THROUGH OR ADVERTISED ON ANY SITE, OR SERVICES, , OR CONTENT, OR RECEIVED THROUGH ANY REFERENCE SITES.12.3 LIMITATIONS BY APPLICABLE LAW
THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES, OR LIABILITY CONTAINED IN THE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU RESIDE, IF THE LAWS OF THE JURISDICTION WHERE YOU RESIDE APPLY AT ALL. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IS SUCH A JURISDICTION, SOME OR ALL OF THE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS, THOUGH IT IS OUR POSITION THAT SINCE THE LAWS OF CALIFORNIA GOVERN THIS AGREEMENT THE LAWS OF THE JURISDICTION WHERE YOU RESIDE DO NOT APPLY. YOU AGREE THAT THE FOREGOING DOES NOT GIVE YOU ANY RIGHT TO ASSERT, AND YOU WILL NOT ASSERT, THAT THE LAWS OF THE JURISDICTION WHERE YOU RESIDE APPLY OR THAT THE VENUE FOR ANY SUCH CLAIMS WOUD BE IN SUCH JURISDICTION.
12.4 BASIS OF THE BARGAIN
YOU ACKNOWLEDGE AND AGREE THAT WE HAVE OFFERED THE PROGRAM, THE Downloadxy SITE(S), (S) AND SERVICES, SET OUR PRICES AND OTHER CONSIDERATION, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND US, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND US. WE WOULD NOT BE ABLE TO PROVIDE ANY Downloadxy SITE, OR SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
13. YOUR REMEDIES
14. INDEMNIFICATION & RELEASE
You agree to indemnify, defend, save, and hold harmless Downloadxy, its parent and affiliated companies, contractors, employees, agents, attorneys, and its third-party suppliers, licensors, and partners, from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of Your use or misuse of any Downloadxy Site, or services, content, any violation by You of any term of these Terms, or any breach of the representations, warranties, promises, or covenants made by You herein. Downloadxy reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify, defend, or hold harmless Downloadxy, and You agree to cooperate with Downloadxy's defense of these claims. Downloadxy will use reasonable efforts to notify You of any such claim, action, or proceeding upon becoming aware of it. Users are responsible for their acts and omissions and content placed on any Downloadxy . In the event that You have a dispute with or claim against one or more Users, You release Downloadxy (and our parents, subsidiaries, officers, directors, shareholders, employees, agents, joint ventures, consultants, successors and assigns) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If You are a California resident, You waive California Civil Code 1542, which says: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
15. Local Laws; Export Control
Downloadxy operates from its headquarters in the United States of America and Downloadxy Site(s), (s) or services may not be appropriate or available for use in other locations. If You use any Downloadxy Site, or services outside the United States of America, You are responsible for following applicable local laws. You agree to comply with all export laws and restrictions and regulations of the United States Department of Commerce or other United States or other sovereign agency or authority, and not to export, or allow the export or re-export of any Downloadxy Site, or services, technical data, or any direct product thereof in violation of any such restrictions, laws, or regulations, or unless and until all required licenses and authorizations are obtained with respect to the countries specified in the applicable United States Export Administration Regulations (or any successor supplement or regulations). The transfer of certain technical data and commodities may require a license from an agency of the United States government and/or written assurances by You that You will not export such any Downloadxy Site, or services, technical data, or commodities to certain foreign countries without prior approval of such agency. Your rights under the Terms are contingent on Your compliance with this and all other provisions.
YOU AND WE AGREE THAT ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR ANY PROGRAM, ANY Downloadxy SITE, OR SERVICES, EXCEPT FOR OUR RIGHTS TO SEEK INDEMNIFICATION, DEFENSE, AND TO BE HELD HARMLESS, MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. If you have a complaint or believe you have a claim that you intend to arbitrate (or litigate if arbitration is found to be inapplicable or is otherwise inapplicable) must and will first send to US, by email, a completed form Notice of Dispute ("Notice"). The Notice to Downloadxy is to be emailed to firstname.lastname@example.org. We must acknowledge receipt of the email. You agree that we may amend these Terms at any time to add a requirement that you must also mail a hard copy to us by certified mail at an address that will be provided. Downloadxy will send any Notice to you to the physical address we have on file associated with your Downloadxy account, if we have one, and if not then by email or any other commercially reasonable method (including social media); it is your responsibility to keep your physical address and all other contact information up to date. All information called for in the Notice must be provided, including a description of the nature and basis of the claims the party is asserting and the relief sought.
If you and Downloadxy are unable to resolve the claims described in the Notice within 30 days after the Notice is sent, you or Downloadxy may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA's site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You must and will send a copy to Downloadxy by email to email@example.com. We must acknowledge receipt of the email. You agree that we may amend these Terms at any time to add a requirement that you must also mail a hard copy to us by certified mail at an address that will be provided. In the event Downloadxy initiates an arbitration against you, it will send a copy of the completed form to the physical address we have on file associated with your Downloadxy account, if we have one, and if not then by email or any other commercially reasonable method (including social media); it is your responsibility to keep your physical address and all other contact information up to date. any settlement offer made by you or Downloadxy shall not be disclosed to the arbitrator.
All claims filed or brought contrary to this Section 16 and the Arbitration Agreement in Section 17 shall be considered improperly filed. Should You file a claim contrary to this Section 16 and the Arbitration Agreement in Section 17 Downloadxy may recover attorneys' fees and costs up to $1,000.00, provided that Downloadxy has notified You in writing of the improperly filed claim, and You have failed to promptly withdraw the claim.
17. Agreement to Arbitrate
(a) Agreement to Arbitrate: - Although the Section regarding Your remedies governs, for any claim (excluding claims by Downloadxy for injunctive or other equitable relief) where the total amount of the award sought is less than $75,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration You and Downloadxy agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of any Downloadxy Site, or services (collectively, "Disputes") will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an "IP Protection Action"). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and Downloadxy are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Downloadxy otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this Section 17 Arbitration Agreement will be deemed void. Except as provided in the preceding sentence, this Section 17 Arbitration Agreement will survive any termination of this Agreement. (b) Arbitration Rules: The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this Section 17 Arbitration Agreement. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section17 Arbitration Agreement. (c) Arbitration Process: A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA's roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. (d) Arbitration Location and Procedure: Unless you and Downloadxy otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $75,000, then the arbitration will be conducted solely on the basis of the documents that you and Downloadxy submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $75,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. (e) Arbitrator's Decision: The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award of damages must be consistent with the terms of the "Limitation of Liability and Damages" Section as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. Downloadxy will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys' fees and expenses if it prevails in arbitration unless the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose. (f) Fees: Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Downloadxy will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
BY ENTERING INTO THIS AGREEMENT AND AGREEING TO ARBITRATION, YOU AGREE THAT YOU AND US ARE EACH WAIVING ANY RIGHT TO FILE A LAWSUIT, GO TO COURT, AND THE RIGHT TO A TRIAL BY JUDGE OR JURY, instead electing that claims and disputes shall be resolved by arbitration under this Arbitration Agreement (Arbitration procedures may be more limited, more efficient, and less costly than rules applicable in court and are typically subject to very limited review by a court.) Further, In the event any litigation should arise between You and Us in any state or federal court in a suit to vacate or enforce an arbitration award, YOU AND WE WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
18. CLASS ACTIONS / CONSOLIDATION
You expressly waive the right and agree not to bring or participate in any class action or joinder or consolidation of claims with respect to any dispute under or relating to this Agreement, including in any arbitration.
This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to or application of conflict of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply. If you are a U.S. resident, the Arbitration Agreement Section 17 applies. If you are a non-U.S. resident, and it is determined that the Arbitration Agreement can not apply to you, you agree that any claims or actions regarding this Agreement may be brought solely in the state of California in federal courts located in the Northern District of California in Santa Clara, and you waive any right to challenge jurisdiction and venue therein. You may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without Downloadxy's prior written consent, and any attempt by you to do so, without such consent, will be void. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. All notices or approvals required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other's behalf without such other party's prior written consent. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect. This Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless you and Downloadxy have executed a separate agreement
In accordance with Cal. Civ. Code ¤1789.3, if You are domiciled in California You may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
21. Contact Information.
If you have any questions regarding this Agreement, you may contact Downloadxy at firstname.lastname@example.org.[October 02, 2018]