Digifabster, Inc. ("Digifabster", "we", or "us") provides you ("you") a service for automation of order flow for 3D printing and similar offerings (the "Digifabster Service"). Digifabster Service is accessible by you and the users of your Web Site through a Digifabster Widget ("Widget") that you must install on your Web Site. A Widget is a small software module operating within or connecting to the Digifabster environment and appearing on a Web Site of your designation, which provides you with access to a variety of content and services provided by Digifabster and its network of 3D printing providers.
Widget & Launching Code
To use the Digifabster Service, you need to set up an account by registering on the Digifabster Web Site and installing the Widget by inserting the "Launching Code" in the HTML code for your Web Site.
You may establish either a free account ("Beginner Account") or a paid account ("Paid Account").
Please Be Aware That You Must Provide Complete And Accurate Information To Our Payment Processor Or Your Payment May Be Affected. You Must Promptly Update All Information To Keep Your Billing Account Current, Complete And Accurate (Such As A Change In Billing Address, Credit Card Number, Or Credit Card Expiration Date), And You Must Promptly Notify Us Or Our Payment Processor If Your Payment Method Is Canceled (E.G., For Loss Or Theft) Or If You Become Aware Of A Potential Breach Of Security, Such As The Unauthorized Disclosure Or Use Of Your User Name Or Password. If You Fail To Provide Any Of The Foregoing Information, You Agree That We May Continue Charging You For Any Use Of Paid Services Under Your Billing Account Unless You Have Terminated Your Paid Services.
You further agree (a) not to provide your password to anyone who is not your employee, and (b) to ensure all individuals permitted to use your account information are aware of and have agreed in writing to comply with the terms of these Terms and Conditions.
Free Trial Period
You shall receive a 14-day free trial period, effective from the date that you set up your Account. During the free trial period you will not be subject to any monthly subscription fees or over-the-limit fees. You must provide valid credit card information immediately after the end of the free trial period in order to continue to use the DigiFabster service.
Free and Paid Accounts
Beginner Accounts don't have all the features of Paid Accounts and are subject to limitations described in these Terms and Conditions or elsewhere on the Digifabster Web Site and as implemented by Digifabster from time to time. A Beginner Account holder may upgrade to a Paid Account by following upgrade procedures promulgated by Digifabster. Digifabster may offer different types of Paid Accounts and/or Beginner Accounts with different features.
Subscription Period, Subscription Fees, Over-the-limit fees; Commission Fees.
Subscription Period. The subscription period for Paid Accounts can be month-to-month, yearly or another duration described in the account features for your account ("Subscription Period"). The subscription period for Beginner Accounts may be for an unlimited duration until terminated by you or Digifabster.
Subscription Fees. Paid Accounts are subject to fees based upon the account type you have selected ("Subscription Fees"). For renewals, Digifabster or its payment processor may automatically charge your credit card the amount of the then-current fee for your type of account, plus applicable taxes. All payments are non-refundable. Your credit card will be charged an advance monthly or yearly subscription fee on the day you sign up for Paid Account. To the extent that payment mechanisms are provided through third parties (the "Payment Processors"), you agree that DigiFabster shall have no liability to you arising out of the acts or omissions of such third parties. You consent to allow digifabster to charge your credit card, either directly or through its payment processors, for the amounts due for your initial subscription period and for additional subscription periods until your account is terminated by you or DigiFabster. If you do not pay on time or if Digifabster cannot charge your credit card, PayPal or other payment method for any reason, Digifabster reserves the right to either suspend or terminate your access to your account and the Digifabster Service and terminate these Terms and Conditions.
Over-the-limit fees. In addition to Subscription Fees, you are responsible to pay over-the-limit fees on any successfully uploaded 3D models ("Quotes") through the Widget by your customers or Internal Quotation Tool by you and users with the access to your account ("Over-the-limit fees"). The over-the-limit rate per such Quote and the limit of allowable free Quotes per month currently vary from $0.1 to $0.99 depending on the type of your Account. You are obligated to pay any accrued Over-the-limit fees on the billing day of each month (for the preceding month) you have an Account with Digifabster, regardless of whether the successfully uploaded 3D models by your customer resulted in an order. All payments are non-refundable.
You consent to allow digifabster to charge your credit card, either directly or through its payment processors, for the amounts due for the accrued commission fees or the over-the-limit fees on the billing day of each month until your account is terminated by you or digifabster.
More information about our Subscription Fees and Commission Fees can be found here https://digifabster.com/pricing/. By submitting your payment information you authorize your credit card to be charged the amount listed at the checkout screen. All prices are subject to change with due notice as described below.
Your subscription will automatically renew at the end of the subscription term unless you cancel it as provided in the policy.
It is your explicit responsibility to make the valid card available for automatic charging in accordance with official invoices from DigiFabster. Should the transaction fail we shall notify you immediately and allow up to 5 business days to remedy the situation.
Should our auto charging attempts fail during this grace period, your widget and access to Management Console will be blocked without delay. You would then have access only to the Billing section where you can input valid card information in order to continue using our service.
Other payment methods
By default, you consent to allow DigiFabster to charge your credit card, either directly or through it’s payment processors. In case you want to pay the invoices by other payment methods like wire transfer, FX wire, ACH you are responsible for adding an additional USD 25 to each transaction to cover bank fees.
Renewals and Cancellations
By default, in order to provide you with uninterrupted and hassle free service, once you have submitted your payment information, your credit card will be automatically charged for subsequent time periods after the initial period where you authorize payment unless you cancel the account by the end of the then-current Subscription Period. For example, if you have paid for a monthly subscription, after the first month your credit card will be automatically billed at the applicable rate for the following month. By paying for the Digifabster Service and/or Widget and authorizing payment on your credit card, you authorize us to automatically charge your credit card for any subsequent periods after your initial payment. You explicitly authorize us to charge your credit card without providing additional notice to you after your initial payment. You can cancel your account at any time by contacting customer service. You would be allowed to use the Digifabster service up till the end of period paid for.
Upgrades and Downgrades
Account Upgrades. You can upgrade your Paid Account or Beginner Account at any time. You can upgrade from a Beginner Account to a Paid Account or from one type of Paid Account to another. When you upgrade from a Paid Account to another type of Paid Account, we will apply the unused portion of your old Subscription Fee to the cost of your upgraded account type.
Downgrades. You can downgrade your Paid Account to a different Paid Account. However, any downgrade will apply and you will be charged for the downgraded account type only after the amount of unused payments for the current account type is equal or less to the total amount of payments due for the downgraded account type.
You acknowledge and accept that downgrading your account may cause the loss of data, features, or capacity of your account.
From time to time we may offer additional offerings, such as various modules to enhance the Digifabster Service. These offerings may be offered to you separate and in addition to the Subscription Fee. Unless stated in writing otherwise, these Terms and Conditions shall be applicable to any such additional offerings.
Requirements to Use the Digifabster Service
To use the Digifabster Service, you will need to have a compatible computer or mobile device with Internet access. If you access the Digifabster Service using a wireless data plan on your mobile device, you may incur increased charges from your wireless carrier. You are responsible for paying all wireless charges and for all equipment and other third party services you use to access the Digifabster Service.
General Restrictions. Your account is for your individual use only. You may not resell accounts or any account features. Digifabster reserves the right in its sole discretion to take any action that it deems necessary if you violate these Terms and Conditions, including suspension or termination of your account.
Digifabster Service Limitations
Digifabster uses commercially reasonable efforts to make the Digifabster Service available 7 days a week 24 hours a day. However, Digifabster does not guarantee availability of the Digifabster Service, shall not have any liability to you for any unavailability of the Digifabster Service, and is under no obligation to provide you with maintenance, technical support or updates for the Software or Digifabster Service unless provided in conjunction with your plan type and, if provided, in the manner as determined by Digifabster from time to time. We will use commercially reasonable efforts to provide twenty-four (24) hour advance notice to you in the event of any scheduled downtime. We reserve the right to suspend or terminate access to your account if your use of the Digifabster Service disrupts, impedes or otherwise negatively impacts the operation of the Digifabster Service or the use of the Digifabster Service by other customers or if you violate any of these Terms.
License to Use the Digifabster Service and Widget
License. Subject to these Terms, Digifabster grants you a revocable, limited, non-transferable, non-exclusive license to (i) access and use the Digifabster Service; (ii) install the Widget on devices within your possession and control; and (iii) use the Widget to access and use the Digifabster Service for your own use. Except for the foregoing license grant, these Terms and Conditions do not grant you any rights to patents, copyrights, trade secrets, trademarks, source code, or any other right, title or interest in the Widget or Digifabster Service, ownership of which is retained by Digifabster. All updates to the Digifabster Service and/or the Widget are governed by these Terms and Conditions.
Compliance. You agree to comply with any local laws and regulations regarding your right to download, install, import, export or use the Widget and/or Digifabster Service. You warrant that you have obtained sufficient consent and rights (i) to access any third party or end users systems or networks, and (ii) to access, use and store all data and files on the Digifabster systems or otherwise use via the Digifabster Service such data and information. You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Digifabster Service available to any third party; (c) modify, adapt, or hack the Digifabster Service or otherwise attempt to gain unauthorized access to the Digifabster Service or related systems or networks; (d) falsely imply any sponsorship or association with Digifabster, (e) use the Digifabster Service in any unlawful manner, including but not limited to violation of any persons privacy rights; (f) use the Digifabster Service to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any persons intellectual property rights; (g) use the Digifabster Service in any manner that interferes with or disrupts the integrity or performance of the Digifabster Service and its components (h) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software; (i) use the Digifabster Service to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (j) carry out any distributed denial-of-service attacks; (k) use the Digifabster Service to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software ("Malicious Software"); or (m) try to use, or use the Digifabster Service in violation of these Terms and Conditions.
Your and Your Customers Content
You are legally responsible for all information, data or other materials uploaded, posted or stored in connection with your or your customers use of the Digifabster Service ("Content"). Digifabster is not responsible for your Content. You on behalf of yourself and on behalf of your customers hereby grant Digifabster a worldwide, royalty-free, non-exclusive license to host and use the Content in order to provide you with the Digifabster Service, including, but not limited to, the license to use, reproduce and transfer the Content to a 3D printer within the Digifabster network solely to enable the 3D printer to create a part based on your design, and hereby represent and warrant that you have all the rights necessary to grant us such license. You are responsible for any Content that may be lost or unrecoverable through your use of the Digifabster Service.
You are responsible for the Content you or your customers submit, upload, post or otherwise make available on or through the Digifabster Service (each a "Submission"). You and your customers may not upload, post or otherwise make available on the Digifabster Service 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 and your customers may not upload, post or otherwise make available on the Digifabster Service (i) Content that contains hate speech in any form; (ii) Content that contains nudity that is not artistic in nature and/or explicit sexual content; (iii) Content that exploits images or the likeness of minors; (iv) Content that depicts violence, is obscene, abusive, fraudulent or threatening; (iv) Content that resembles weapons or weapon accessories, except for nonfunctioning miniatures; or (v) Content that is generally offensive or in bad taste, as determined by Digifabster in its sole discretion.
You have full responsibility for each Submission you or your customers make, including its legality, reliability and appropriateness.
You agree and acknowledge that your Web Sites Terms and Conditions have stringent prohibitions for your customers on the uploading of any content that constitutes infringement of copyrights, trademarks, proprietary rights, violation of contract, privacy or publicity rights. You agree to pay for all royalties, fees, damages and any other monies owing any person by reason of any Submissions posted by you or your customers to or through the Widget or the Digifabster Service.
You agree to keep the Submissions made by your customers through the Widget strictly confidential.
You Are Solely Responsible For The Accuracy And Appropriateness Of All Data And Content Within Your Web Site; Including Sales Tax Calculations, Product Pricing, And Product Descriptions, Shipping Charges, Contact Information, Email Communications, And Electronic Payment Processing. Digifabster Will Not Be Held Responsible For Inaccurate Information And Any Potential Damages Caused By Such Inaccuracies. You Further Understand That Digifabster May Not Maintain Copies Of Files Or Documents That Are Sent By You And That You Are Solely Responsible For Backing Up This Data.
Term and Termination
Your rights to use the Digifabster Service and the Widget are effective through the end of applicable Subscription Period unless earlier terminated. These Terms will terminate immediately without notice to you upon the earlier of (i) notice of your election to cancel your account, (ii) the posting of a new version of these Terms on the Digifabster website with notice to you (which you acknowledge that Digifabster may provide by any means, including without limitation, by posting on the Digifabster website), in which case the new Terms shall apply to you unless you cancel your account within a 10 day period.
We may occasionally need to change the features of our Paid or Beginner Accounts and/or change the prices charged for these accounts. In the event of any increase in the price or material reduction in the features of any Paid Account to which you subscribe, we will communicate these change(s) to you at least thirty days in advance and the changes will only take effect with respect to any subsequent renewal of your Subscription.
For Beginner Accounts, account features may be limited, modified or suspended, and the Beginner Account may be terminated, by Digifabster at any time at its sole discretion without notice or liability to you. Digifabster may terminate your Paid Account (i) effective as of the end of the then-current Subscription Period for any reason or no reason and without liability to you; (ii) with cause at any time without notice; and (iii) without cause during the Subscription Period provided that Digifabster returns a pro rata portion of the Subscription Fee to you.
Upon termination, the licenses granted to you by Digifabster shall cease and you shall promptly delete or uninstall the Software.
In the event of expiration or termination of your account, the representations made by you in these Terms and the Sections entitled "Compliance", "Term and Termination", "Disclaimer of Warranties", "Limitation of Liability","Indemnification", and "General" shall survive such expiration or termination.
Disclaimer of Warranties
The Digifabster Service And The Widget Are Provided "As Is" Without Warranty Of Any Kind. To The Maximum Extent Permitted By Applicable Law, Digifabster Expressly Disclaims All Warranties Of Any Kind, Whether Express, Implied, Or Statutory, Including, But Not Limited The Implied Warranties Of Merchantability, Fitness For A Particular Purpose, And Non-infringement. Digifabster Does Not Warrant That: (I) The Use Or Quality Of The Widget Or Digifabster Services Will Be Uninterrupted, Error-free, Timely, Secure Or Meet Your Requirements Or Expectations; (Ii) The Results Obtained From Use Of The Widget Or Digifabster Service Will Be Accurate Or Reliable; Or (Iii) Any Errors In The Widget Or The Digifabster Service Will Be Corrected. The Entire Risk Arising Out Of The Use Or Performance Of The Widget And Digifabster Service Remains With You.
Limitation of Liability
To The Maximum Extent Permitted By Applicable Law, In No Event Shall Digifabster Or Its Suppliers Be Liable For Any Special, Incidental, Indirect, Punitive, Or Consequential Damages Whatsoever (And With Respect To Beginner Accounts For Any Direct Damages), Including, But Not Limited To, Damages For: Loss Of Profits, Loss Of Confidential Or Other Information Or Data, Business Interruption, Personal Injury, Loss Of Privacy, Failure To Meet Any Duty, Negligence, And Any Other Pecuniary Or Other Loss Whatsoever, Arising Out Of This Agreement Or In Any Way Related To The Use Of Or Inability To Use The Widget Or The Digifabster Service Even If Digifabster Or Any Supplier Has Been Advised Of The Possibility Of Such Damages. Because Some Countries/Jurisdictions Do Not Allow The Exclusion Or Limitation Of Liability For Consequential Or Incidental Damages, The Above Limitation May Not Apply To You. In No Event Shall Digifabster’s Total Liability To You For All Damages (Other Than As May Be Required By Applicable Law In Cases Involving Personal Injury) Exceed The Amount Of Money That You Have Paid To Digifabster In The Preceding Twelve Months Period. The Foregoing Limitations Will Apply Even If The Above Stated Remedy Fails Of Its Essential Purpose. These Limitations Of Liability Also Apply With Respect To Damages Incurred By You By Reason Of Any Products Or Services Sold Or Provided By Third Parties Other Than Digifabster And Received Through Or Advertised On Or Through The Digifabster Service. You Agree That In The Event You Incur Any Damages, Losses Or Injuries That Arise Out Of Digifabster’s Acts Or Omissions, The Damages, If Any, Caused To You Are Not Irreparable Or Sufficient To Entitle You To An Injunction Preventing Any Exploitation Of Any Web Site, Property, Product, Service, Or Other Materials Owned Or Controlled By The Digifabster Parties, And You Will Have No Rights To Enjoin Or Restrain The Development, Production, Distribution, Advertising, Exhibition Or Exploitation Of Any Web Site, Property, Product, Service, Or Other Materials Owned Or Controlled By Digifabster.
Some Countries/Jurisdictions Do Not Allow The Limitation Or Exclusion Of Liability In Contracts With Consumers And As A Result The Contents Of This Section May Not Apply To You.
You Acknowledge And Agree That The Internet Is A Network Of Private And Public Networks And That (I) The Internet Is Not A Secure Infrastructure, (Ii) Digifabster Has No Control Over The Internet, And (Iii) Digifabster Shall Not Be Liable For Damages Under Any Theory Of Law Related To The Discontinuance Of Operation Of Any Portion Of The Internet Or Possible Regulation Of The Internet That Might Restrict Or Prohibit The Operation Of The Digifabster Service.
You agree to indemnify, defend and hold Digifabster and its officers, directors, employees, agents, licensors, and suppliers harmless from and against all claims, liabilities, losses, expenses, damages, and costs, including but not limited to reasonable attorneys' fees in connection with (i) your use of the Widget or the Digifabster Service, (ii) your customers use of the Widget or the Digifabster Service; (iii) your violation of these Terms and Conditions, (iv) your customers violation of these Terms and Conditions; (v) your violation of any third-party rights, including any intellectual property rights; or (vi) your customers violation of any third-party rights, including any intellectual property rights
By using the Widget and the Digifabster Service, you consent to receiving electronic communications from Digifabster. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Widget and the Digifabster Service. These electronic communications are part of your relationship with Digifabster. 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.
Use of Digifabster Network of Suppliers
The Digifabster Service may offer you or your customers the opportunity to use the 3D printing/prototyping and other related services ("Commercial Services") through our network of suppliers ("Suppliers"). We are merely providing the platform for buyers and sellers to negotiate and complete transactions for these Commercial Services. When you or your customer purchases a Commercial Service, payments will be processed through our third party payment service provide. Unless expressly stated on the Digifabster Service, referrals to the Suppliers should in no way be considered as or interpreted to be Digifabsters endorsement of such Suppliers or any product or service offered through them. You agree that digifabster will not, under any circumstances, be responsible or liable, directly or indirectly, for any goods, services, information, resources and/or content available on or through any suppliers or any dealings or communications with such suppliers, or for any harm related thereto, or for any damages or loss caused or alleged to be caused by or in connection with your use or reliance on the content or business practices of any supplier.
"Confidential Information" of a party shall mean all confidential or proprietary information and documentation of such party, whether or not marked as such. Confidential Information does not include (i) information that is or becomes generally known to others, but not as a result of breach of confidentiality obligations or other wrongful acts; (ii) information that was known to the receiving party at the time of disclosure; (iii) information learned from a third party holding same lawfully and not subject to confidentiality obligations; and (iv) information required to be disclosed by law, regulation, or court order, to the extent such requirement is actually imposed and only after prompt notice to the other party. You and Digifabster agree to hold the others Confidential Information in confidence; to use the others Confidential Information only to perform the duties and exercise the rights set forth in these Terms and Conditions and pursuant to the Digifabster Service; and not to disclose the others Confidential Information to third parties (except authorized employees and agents having a reasonable need to know) without the disclosing party’s express prior written consent. You and Digifabster shall safeguard the others Confidential Information against unauthorized use and disclosure with means at least as secure as it employs to safeguard its own Confidential Information, and in no event with less than reasonable means.
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 firstname.lastname@example.org. This Dispute Resolution and Arbitration; Class Action Waiver Provision (this "Provision") facilitates the prompt and efficient resolution of any disputes that may arise between you and Digifabster. 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 Dispute Resolution and Arbitration; Class Action Waiver provision (this "Provision"), 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 Digifabster 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 Digifabster 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 e-mailing written notification to Digifabster, Inc., Constantine Ivanov, email@example.com. That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If the Company does not resolve the Dispute within 45 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 e-mailing written notification to Digifabster, Inc., Constantine Ivanov, firstname.lastname@example.org. Your written notification must include (1) your name, (2) your 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 San Francisco, California 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 San Francisco, California 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.
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 these Terms or your use of the Widget and the Digifabster Services. 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.
Change of the Terms and Conditions
We reserve the right to make changes to the Digifabster Service or these Terms and Conditions at any time. Such amended Terms and Conditions shall be effective within 15 days from posting on our Web Site and will have no effect on transactions that were completed before such posting. Please check the Terms and Conditions published on our Web Site regularly to ensure that you are aware of all terms governing the Digifabster Service.
These Terms and Conditions shall be governed by and interpreted in accordance with the laws of the State of California exclusively. You agree that conflicts of laws principles of such laws, the Uniform Computer Information Transactions Act, and the United Nations Convention on Contracts for the International Sale of Goods (1980) and its successors are excluded in their entirety from application to these Terms and Conditions. Neither these Terms and Conditions nor any rights or obligations of you hereunder may be assigned by you in whole or in part without the prior written approval of Digifabster. Any assignment in violation of the foregoing shall be null and void. If any part of these Terms and Conditions is for any reason found to be invalid, illegal or unenforceable, all other parts nevertheless remain valid, legal and enforceable. In lieu of the unenforceable provision, the parties agree that the court should attempt effect as much as possible the economic, legal and business objectives as were intended by the unenforceable provision. Digifabster shall not be liable for any delay in the performance hereunder due to causes beyond its control, including but not limited to an act of God, war or natural disaster. These Terms and Conditions set forth the entire understanding and complete and exclusive statement of the agreement between Digifabster and you and they supersede any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of these Terms and Conditions. You have no third party beneficiaries to these Terms and Conditions. Notwithstanding any law, rule or regulation to the contrary, you agree that any claim or cause of action you may have arising out of these Terms and Conditions must be filed within one (1) year after such claim or cause of action arose or be forever barred.
If you have any questions about these Terms and Conditions or otherwise need to contact Digifabster for any reason, you can reach us at email@example.com.