Last Revised May 7, 2014
TERMS OF SERVICE
1. ACCEPTANCE OF TERMS
This “Site” (as defined below) is owned and operated by Wishyep Media Group, Inc. (“Wishyep, “us” or “we”) These terms of service (the “Terms of Service”, “TOS” or “Agreement”) set forth the legal terms and conditions governing your use of our website located at www.wishyep.com and any other online and mobile websites and interactive applications operated by Wishyep that are related to www.wishyep.com (collectively, the “Site”), unless a different policy is provided on a particular site, application or service.
Some of Wishyep other sites or services may have additional terms, which address the specific rules for those services and that we provide to you when you use those sites or services. By using any of those services, you agree to the additional terms and conditions they impose as well as these TOS. If there is any conflict between these TOS and those specific to such services, these TOS control your use of the Site generally and the specific terms govern you use of the services to which they pertain.
Please note that these terms of service 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 wishyep. you may opt out of the binding individual arbitration and class action waiver as provided below.
2. SERVICES AND MODIFICATION OF TERMS OR SERVICES
Wishyep provides users with access to a rich collection of resources through its network of internet properties (the “Service”).
Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of new Wishyep internet properties, shall be subject to these TOS. You understand and agree that the Service is provided “AS-IS” and that Wishyep assumes no responsibility for the timeliness or availability of the Service, nor for deletion or failure to store any user communications or personalization settings. In addition, you understand that agree that you must provide and are responsible for all equipment necessary to access the Service.
Wishyep reserves the right, from time to time, in its sole discretion, to change, modify, update, discontinue, remove, revise, delete or otherwise change any portion of the Site or this TOS, in whole or in part, at any time without further notice. For changes to these TOS that we deem material, we will place a notice on the Wishyep website located at www.wishyep.com by revising the link on the homepage to read substantially as “Updated Terms of Service” for a reasonable time. By accessing or using the Site after the TOS have been changed, you consent and agreed to the revised TOC. The most current version of these TOS will be available on the site and will supersede all previous versions of these TOS.
Wishyep reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Wishyep shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
3. USERS AND ACCOUNTS
Visitors may freely browse the Site in accordance with these TOS, but may not have full access to certain Services without first becoming “Registered Users.”
In order to use the Services available to a Registered User, you will need to create an account, either directly with Wishyep and/or through certain third-party’s single sign-on services (including but not limited to Facebook Connect and Google+) (each, a “Third Party Site Account”). If you log in through your Third Party Site Account, you will be asked to configure your privacy settings in your Third Party Site Account to permit certain information to be shared with Wishyep. By creating an account via a Third Party Site Account, you are allowing Wishyep to access your Third Party Site Account information and you acknowledge and agree that your use of Third Party Site Account is governed by the terms and conditions of the applicable Third Party Sites (as defined below), including without limitation, their password and account security policies.
When you set up an Account with us, you are required to enter a valid email address, a member ID (username) and a password to access the Services. You will provide Wishyep with certain registration information, all of which must be accurate and updated (if any of your registration information changes, you can update it by visiting our Edit Account page). You are solely responsible for maintaining the confidentiality of your passwords of any account you may choose to login to access our Services. You are also solely responsible for all usage of the account you use to access our Services, including, but not limited to, use of the account by any person authorized by you to use your login information. You agree that you will not provide any false personal information to the Site, or create an account for anyone other than yourself without permission. You will also agree not to create more than one personal profile. We reserve the right to remove or alter the public username associated with your if we believe it appropriate. Wishyep may, in its sole discretion, at any time, with or without notice, terminate your password and membership, for any reason. If we disable your account, you agree that you will not create another one without our permission.
Your right to use this Site is personal to you and you may not sub-license, transfer, sell or assign your Account or this agreement to any third party without our approval. Any attempt to do so will be void and may result in suspension of your ability to use the Service. You may cancel your Account at any time.
4. OTHER SITES AND SERVICES
The Site may contain links to third party websites or resources, which may or may not be obvious (“Third Party Sites”) as well as advertisements, software, text, graphics, articles, photographs, pictures, designs, sound, video, music, information, and other content originating from third parties (collectively, “Third Party Applications, Software or Content”). Our provision of links to Third Party Sites is not an endorsement of any information, product or service that is offered on or through any Third Party Site or Third Party Application, Software or Content. Such Third Party Sites and Third Party Applications, Software or Content are not monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for the content or performance of any Third Party Sites accessed through the Site or any Third Party Applications, Software or Content posted on, available through or installed from the Site, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Sites or the Third Party Applications, Software or Content. If you leave the Site and access any Third Party Sites, or if you use or install any Third Party Applications, Software or Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You hereby expressly agree to comply with any and all terms and conditions, users guides and privacy policies of any of Third Party Sites.
YOU AGREE THAT YOUR USE OF THIRD-PARTY SITES OR THIRD PARTY APPLICATIONS, SOFTWARE OR CONTENT, INCLUDING, WITHOUT LIMITATION, YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH WEBSITES AND RESOURCES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH SITES AND RESOURCES.
5. POSTS AND SUBMISSIONS
Wishyep is pleased to hear from you and welcomes your comments regarding Wishyep. However, Wishyep does not accept or consider creative ideas, suggestions, or materials other than those it has specifically requested, or that are submitted though one of Wishyep’s interactive services (such as Comments). This policy is designed to avoid the possibility of misunderstandings when projects developed by Wishyep’s or its affiliates’ professional staff might seem to others to be similar to their own creative work. Accordingly, we ask that you do not send us any original creative materials such as articles, photographs, video, drawings, original artwork, or concepts for which you expect to be compensated or that you would like to keep private, unless you have contacted an editor in advance and have been asked in writing to submit such material. Any materials that you submit to Wishyep without a prior written request from an editor of Wishyep may be used by Wishyep in any manner consistent with the license granted below, and without compensation.
You understand and agree that any material that you post or submit using the features or services of the Site, or that you submit directly without a prior written request from an editor at Wishyep, including letters to the editor, articles, photographs, video, drawings, creative suggestions, ideas, notes, concepts, or other materials (“Submissions”) will be non-confidential and non-proprietary. No Submission will be subject to any obligation of confidence on the part of Wishyep, and Wishyep shall not be liable for any use or disclosure of any Submissions. Any Submission may be used by Wishyep without restriction for any purpose whatsoever, including, without limitation, reproduction, disclosure, transmission, publication, broadcast or posting, and you hereby waive and release any claim that Wishyep’s use of a Submission violates any of your rights, including, without limitation, copyrights, trademarks, moral rights, privacy rights, proprietary or other property rights, publicity rights, or right to credit for the material or ideas. Please understand that Submissions may not be acknowledged or returned.
By posting or otherwise providing a Submission, you grant Wishyep the right to reproduce, modify, adapt, publish, broadcast, license, perform, post, sell, translate, incorporate, create derivative works from, exploit, distribute and otherwise use the Submission in any and all media, now known or hereafter devised, throughout the universe, in perpetuity, without according you any compensation. Wishyep will generally attribute Submissions to their authors, but you understand and agree that it is not obligated to do so, and you release and waive any right to have Submissions attributed to you. You also understand and agree that Wishyep has no obligation to publish or use any Submission in any way, and that Wishyep may remove or revised any Submission that has been posted, published, or distributed on or through the Site in its sole discretion.
By providing a Submission, you represent and warrant that your Submission is original to you and does not violate or infringe upon the rights of any third parties, including, without limitation, any intellectual property rights and rights of publicity or privacy. You also represent and warrant that your Submissions do not include nudity, partial nudity, or adult content, and are not obscene, defamatory, graphically violent, physically threatening, or intended for any illegal purpose.
You acknowledge and agree that your relationship with Wishyep is not a confidential, fiduciary, or other special relationship. You also acknowledge and agree that, with respect to any claim you may have arising out of or relating to Wishyep’s actual or alleged use of any Submission, you will not be entitled to in any way enjoin the use of the Submission or the operation of any Wishyep platform, product or service, and your rights and remedies will be strictly limited to the right to recover damages, if any, in an action at law.
6. APPROPRIATE USE
In exchange for the right to access and use the Site as set forth in these TOS, you agree as follows:
• You will access and use the Site solely for your own personal, noncommercial use;
• You will not use the Site in any illegal manner or for any illegal purpose, in any other manner that could damage, disable, overburden, or impair the Site, or in any manner inconsistent with these TOS;
• You will not defeat or interfere with any security feature of the Site, or attempt to do so;
• You will not alter or modify any content or component of the Site, other than content you have submitted to or posted on the Site;
• You will not reproduce, duplicate, copy, sell, trade, resell, or exploit, for any commercial purpose, any content, component, or feature of the Site without the prior written permission of Wishyep, except for content you have submitted to or posted on the Site, or content which you have the prior written permission of the owner to use;
• You will not use the Site to post, transmit, or share material that you did not create or that you do not have permission to post, transmit, or share;
• You will not use any automated system, software, or device to generate and send unsolicited communications to or through the Site;
• You will not collect or harvest any personally identifiable information, including without limitation account names or email addresses, from the Site, nor use the communication systems provided by the Site for purposes of sending any commercial solicitation;
• You will not upload, post, transmit, share, or otherwise make available any material that contains software viruses or any other computer code designed to interfere with the functionality of or obtain any nonpublic information from any computer software or hardware or telecommunications equipment;
• You will not use the Site to post, transmit, or share child pornography, and you understand that any use of the Site to publish or transmit child pornography will be reported to law enforcement authorities, together with any identifying information Wishyep may have regarding you, and will result in termination of your account;
• You will not use the Site to post, transmit, or share material that is obscene, defamatory, or invasive of the privacy of another person, graphically violent, physically threatening, or intended for any illegal purpose;
• You will not use the Site to promote any product or service on behalf of any person or entity that sells, provides, or offers the product or service; and
• You will not harass or intimidate any other user of the Site.
7. DISCLAIMER OF WARRANTIES
Wishyep makes no representation or warranty whatsoever regarding the completeness, accuracy, currency or adequacy of any information, facts, views, opinions, statements or recommendations contained on the Site. Reference to any product, process, publication or service of any third party by trade name, domain name, trademark, service mark, logo, manufacturer or otherwise does not constitute or imply its endorsement or recommendation by Wishyep.
The Site may be unavailable from time to time due to maintenance or malfunction of computer equipment or for various other reasons. Wishyep assumes no responsibility for any delays, interruptions, errors, defects, omissions, or deletions, related to the communications line failure, operation or transmission, or alteration of, or theft or destruction or unauthorized access to, user communications. Wishyep is not responsible for any technical or non-technical malfunction or other problems of any hosting services, computer systems, servers or providers, telephone networks or telephone services, computer or mobile phone equipment, software, failure of e-mail or players on account of technical problems or traffic congestion on the Internet or in connection with the Site, including injury or damage to a user’s or to any other person’s computer, mobile phone, or other hardware or software, related to or resulting from using or downloading materials in connection with the Web and/or in connection with the Site.
You understand that Wishyep does not promise that any Submission will be maintained by Wishyep. You are solely responsible for creating backup copies of and replacing any Submission. You agree that Wishyep has no responsibility or liability for the deletion of, or the failure to store or to transmit, any Submission. Wishyep retains the right to create limits on use and storage at its sole discretion, at any time, with or without notice.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF THE SITE AND THE SERVICE IS AT YOUR SOLE RISK. THE SITE AND SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WISHYEP EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
WISHYEP MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED, (vi) OR THAT THIS SITE, ITS CONTENT, AND THE SERVERS ON WHICH THE SITE AND CONTENT ARE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS OBTAINED AND USE AT YOUR OWN DISC RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM WISHYEP OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
THE SITE MAY CONTAIN VARIOUS COMBINATIONS OF TEXT, IMAGES, AUDIOVISUAL PRODUCTIONS, OPINIONS, STATEMENTS, FACTS, ARTICLES, MARKET DATA, STOCK QUOTES OR OTHER INFORMATION CREATED BY WISHYEP OR BY THIRD-PARTIES. DUE TO THE NUMBER OF SOURCES FROM WHICH CONTENT IN THIS SITE IS OBTAINED, AND THE INHERENT HAZARDS OF ELECTRONIC DISTRIBUTION, THERE MAY BE DELAYS, OMISSIONS OR INACCURACIES IN SUCH CONTENT. ACCORDINGLY, SUCH CONTENT, INCLUDING THE MARKET DATA, IS FOR YOUR REFERENCE ONLY AND SHOULD NOT BE RELIED UPON BY YOU FOR ANY PURPOSE. SUCH CONTENT IS NOT INTENDED FOR THE PURPOSE OF TAX OR INVESTMENT ADVICE AND IT DOES NOT ADVOCATE THE PURCHASE OR SALE OF ANY SECURITY OR INVESTMENT.
8. LIMITATION OF LIABILITY
YOU AGREE THAT, TO THE GREATEST EXTENT PERMISSIBLE BY LAW, WISHYEP AND ITS PARENTS, AFFILIATES, SUBSIDIARIES, LICENSORS AND ASSIGNS, AND EACH OF THEIR RESPECTIVE EMPLOYEES, OFFICERS AND DIRECTORS (COLLECTIVELY, THE “RELEASED PARTIES”) WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND, WHETHER BASED IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ANY LOST PROFITS OR LOST DATA ARISING OUT OF OR RESULTING IN ANY WAY FROM THE SITE, ANY ERRORS OR OMISSIONS IN THE OPERATION OF THE SITE, OR YOUR USE OF THE SITE, EVEN IF WISHYEP IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (COLLECTIVELY, THE “RELEASED MATTERS”). TO THE EXTENT THAT, DESPITE THIS RELEASE, ANY LIABILITY MAY BE IMPOSED ON THE RELEASED PARTIES, THEIR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO A MAXIMUM OF $100.
BY ACCESSING THE SITE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED. IF YOU ARE A CALIFORNIA RESIDENT, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
You waive any and all rights you have or may have under California Civil Code Section 1542, and any similar provision of law, with respect to the Released Matters. You acknowledge that you may hereafter discover claims presently unknown or unsuspected, or facts in addition to or different from those which you now know or believe to be true. Nevertheless, you intend to release fully, finally and forever all Released Matters. You agree that the releases set forth in the TOS will remain in effect notwithstanding the discovery or existence of any such additional or different claims or facts relevant hereto.
9. RESTRICTIONS ON EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
10. INTELLECTUAL PROPERTY INFORMATION
All materials on this site (“Online Materials”), including, without limitation, names, logos, trademarks, service marks, images, articles, columns, graphics, photographs, illustrations, artwork, audio clips, video clips, software, and other elements making up the Service are protected by copyrights and other intellectual property rights owned and controlled by Wishyep or by other parties that have licensed their material to Wishyep. Except as specifically provided herein, no Online Materials may be copied, reproduced, republished, downloaded, posted, transmitted, or distributed in any way, or otherwise used for any purpose, without the prior written permission of their respective owners. You may not add, delete, or otherwise modify the content on this Site, other than your own Submissions. Any unauthorized attempt to modify any Online Material, to defeat security features, or to utilize this site for other than its intended purposes is prohibited.
You understand that Wishyep trade names, slogans, logos and product and service names are trademarks of Wishyep. All other trademarks appearing on the Site are trademarks of their respective owners and our reference to them does not imply or indicate any approval or endorsement by their owners unless such approval or endorsement is expressly made. Wishyep is a news and information site and service and references to other names and trademarks are necessary in the course of providing news and commentary about the subjects that this site covers. Wishyep will enforce its intellectual property rights to the fullest extent of the law.
The failure of Wishyep to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
12. VIOLATIONS AND COMPLAINTS
Please report any violations of the TOS to our Customer Care group: email@example.com. If you are a copyright owner or an agent thereof and you believe that any content on one of Wishyep’s sites infringes upon your copyrights, you may submit a notice pursuant to the Digital Millennium Copyright Act (“DMCA”) by following the directions on our DMCA page.
BY USING THE SITE YOU AGREE TO INDEMNIFY, DEFEND AND HOLD THE RELEASED PARTIES HARMLESS FROM AND AGAINST ANY THIRD PARTY CLAIMS, ALLEGED CLAIMS, DEMANDS, CAUSES OF ACTION, JUDGMENTS, DAMAGES, LOSSES, LIABILITIES, AND ALL COSTS AND EXPENSES OF DEFENSE, INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES, ARISING OUT OF OR RELATING TO: (i) YOUR BREACH OF YOUR REPRESENTATIONS, WARRANTIES, COVENANTS OR AGREEMENTS HEREUNDER; (ii) YOUR VIOLATION OF THESE TERMS OF SERVICE OR ANY LAW; (iii) YOUR USE OF THIS SITE IN VIOLATION OF THESE TERMS OF SERVICE; (iv) INFORMATION OR MATERIAL POSTED OR TRANSMITTED THROUGH YOUR COMPUTER OR MEMBERSHIP ACCOUNT, EVEN IF NOT SUBMITTED BY YOU; AND (v) ANY MISREPRESENTATION MADE BY YOU. YOU WILL COOPERATE AS REASONABLY REQUIRED IN THE RELEASED PARTIES’ DEFENSE OF ANY CLAIM. THE RELEASED PARTIES RESERVE THE RIGHT, AT THEIR OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, AND IN ANY EVENT YOU MAY NOT SETTLE ANY SUCH MATTER WITHOUT THE WRITTEN CONSENT OF WISHYEP.
From time to time, the Site may offer sweepstakes, contests or other promotions that require you to send material or information about yourself. Please note that sweepstakes, contests or promotions offered via the Site may be, and often are, governed by a separate set of rules that, in addition to describing such sweepstakes, contest or promotion, may have eligibility requirements, such as certain age or geographic area restrictions, terms and conditions governing the use of material you submit, and supplemental disclosures about how your personal information may be used. It is your responsibility to read such rules to determine whether or not you want to and are eligible to participate, register and/or enter. By entering any such sweepstakes, contest or other promotion, you agree to comply with abide by such rules and the decisions of the sponsor(s) identified therein, which shall be final and binding in all respects.
15. NON-RESIDENTS OF THE UNITED STATES OF AMERICA
Wishyep operates the Site in the United States of America. Wishyep makes no representation that the Site is appropriate or available for use in locations other than the United States of America. If you access the Site from locations outside of the U.S.A. you do so on your own initiative and at your own risk, and you are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
16. REFUSAL OR DISCONTINUANCE OF SERVICE
You understand and agree that Wishyep may, in its sole discretion and at any time, for any reason, terminate your password, account or use of the Site, or prohibit you from accessing the Site, in whole or in part. You understand and agree that Wishyep may take any one or more of these actions without prior notice to you. Should Wishyep take any of these actions, it may, in its sole discretion, immediately deactivate and/or delete any or all information about and concerning your account. Any violation of this Agreement may result in restrictions on your access to all or part of the Site and may be referred to law enforcement authorities.
17. CHOICE OF LAW AND FORUM
This Agreement, including all revisions and amendments thereto, and any disputes arising from or relating to this Agreement or your use of the Site, are governed by the laws of the State of California, without regard to any conflict or choice of law principles that would require application of the laws of another jurisdiction. The exclusive forum and venue for any action, including any small claims court action, arising from or relating to this Agreement or your use of the Site and not subject to arbitration as provided below, will be the state or federal courts located in San Francisco, California.
18. ARBITRATION AND CLASS ACTION WAIVER
Please read this section 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 Provision facilitates the prompt and efficient resolution of any disputes that may arise between you and Wishyep. 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 Wishyep 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 “Wishyep” means Wishyep 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 Wishyep regarding any aspect of your relationship with Wishyep, 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 Wishyep’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 Wishyep an opportunity to resolve the Dispute. You must commence this process by mailing written notification to Wishyep Media Group, Inc., 101 Spear Street, Suite 203, San Francisco, CA 94105. 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 Wishyep 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 Wishyep 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 Wishyep Media Group, Inc., 101 Spear Street, Suite 203, San Francisco, CA 94105. 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 Wishyep through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with Wishyep. 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 Wishyep may initiate arbitration proceedings. The arbitration will be conducted under the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”) in effect on the date of commencement of the arbitration, as modified by these TOS. The arbitration will be conducted by a single arbitrator. The arbitration will be based entirely on the written submissions of the parties and documents submitted to the arbitrator, unless the parties agree or the arbitrator orders otherwise. Unless you and Wishyep both agree otherwise, the arbitrator may not join your claim(s) or Wishyep’s claim(s) with any other claim, and may not preside over any representative or class proceedings.
Because the Service 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 Wishyep 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, Wishyep 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 – For any arbitration in which you claim less than $10,000, Wishyep will reimburse you for the cost of your filing fee with JAMS and will directly pay all of JAMS’ other costs and fees. For claims between $10,000 and $75,000, you will pay any filing fee required by JAMS, and Wishyep will pay all of JAMS’ other costs and fees. If you bring claims between $10,000 and $75,000 and the arbitrator determines that you cannot afford to pay the filing fee, Wishyep will pay the fee directly on your behalf. If, however, the arbitrator determines that any claim brought by you is frivolous, then payment of JAMS’ costs and fees will be governed by the JAMS rules. Furthermore, if the arbitrator determines that your claims are frivolous, you agree to reimburse Wishyep for any costs or fees that it paid that otherwise would have been your responsibility under the JAMS Rules. If you bring a claim for greater than $75,000, payment of fees and other costs to JAMS will be governed by the JAMS Rules. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with Wishyep 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 Wishyep 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 Service 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 your service with Wishyep or its affiliates. Notwithstanding any provision in this Agreement to the contrary, you and Wishyep agree that if Wishyep makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require Wishyep to adhere to the language in this Provision if a dispute between us arises.
19. NO WAIVER
No modification or amendment to nor waiver of any part of this Agreement shall be of any force or effect unless formally posted by Wishyep as part of these TOS, or made in writing and signed by a duly authorized officer of Wishyep.
If any provision of this Agreement is found invalid or unenforceable, the provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in force.
21. ENTIRE AGREEMENT
I HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND BY ALL OF ITS TERMS.