These Terms of Service are effective as of March 6, 2020.
YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK.
BY ENTERING INTO THIS AGREEMENT, YOU AND ROBYN ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION LAWSUIT AS DESCRIBED IN MORE DETAIL BELOW. SECTION 17 (ADDITIONAL WARRANTY DISCLAIMERS), SECTION 19 (LIMITATION OF LIABILITY), SECTION 20 (GOVERNING LAW; FORUM; CLASS ACTION WAIVER), SECTION 21 (BINDING ARBITRATION) AND SECTION 22 (WAIVER OF JURY TRIAL, RELEASE) (TOGETHER AS THE “DURABLE PROVISIONS”) CONTAIN IMPORTANT LEGAL PROVISIONS. PLEASE READ THEM CAREFULLY. BY USING THE SERVICES YOU AGREE TO BE BOUND BY THIS AGREEMENT AS IT MAY BE UPDATED FROM TIME TO TIME. USE OF THE SERVICES IS PERMITTED ONLY UNDER THE PROVISIONS OF THIS AGREEMENT. IF YOU DO NOT CONSENT TO THIS AGREEMENT YOU MAY NOT USE THE SERVICES.
1. Acceptance of Terms of Service.
a. By using the Services in any manner, including but not limited to visiting or browsing the Site or registering an Account, you agree to these Terms of Service and all other operating rules, policies and procedures that may be published from time to time on the Site by us, each of which is incorporated by reference and each of which may be updated from time to time.
b. Certain of the Services may be subject to additional terms and conditions specified by us from time to time; your use of such Services is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference.
c. These Terms of Service apply to all users of the Services, including, without limitation, users who are contributors of content, information, and other materials or services, registered or otherwise. Notwithstanding that users will be expressly asked to signify their agreement to these Terms of Service by “clicking to agree” (or some other similar action) in connection with the creation of an account (the foregoing as the “Clickwrap Action”), these Terms of Service are binding upon all users of the Services, even those who have not taken the Clickwrap Action.
2. Access to Services.
These Terms of Service grant you a limited, non-exclusive right to access and use the Services, including Content available made available through the Services, as subject to all applicable provisions hereof (the foregoing as the “Access Right”). As further set forth herein, your Access Right may be terminated by Robyn immediately upon notice to you, for any reason or no reason.
a. Generally. If you make any financial transaction through or with the Services, including, without limitation, the purchase of goods or services, whether provided by Robyn or any third party, you will pay to Robyn the amounts listed by Robyn in connection with such applicable transaction, including all fees, taxes and other charges in connection therewith. Robyn may provide additional provisions pertaining to such financial transactions, including pertaining to method and timing of payment (“Payment Terms”). You agree to be bound by, and will comply with, all Payment Terms. In connections with payments made to, through or otherwise handled by Robyn, Robyn may utilize the services of a third party service (the “Payment Provider”). You may be required to enter into an agreement with the Payment Provider. Robyn is not responsible for the Payment Provider and, for the purposes of this Agreement, the Payment Provider is deemed a Third Party Site.
b. Accounts. Robyn may charge you certain fees in connection with your creation, use or exploitation of your account, including any transactions made through your account. You agree to be bound by, and will comply with, all Payment Terms provided by Robyn in connection with your Account. You acknowledge and agree that failure to strictly comply with the Payment Terms provided by Robyn in connection with your Account may result in suspension or termination of your account or you being banned from access to or use of the Services.
c. Collection and Interest. Robyn may charge you late fees for amounts not paid by their due date. Such late fees will be the lesser of one and a half percent per month (1.5%) and the highest interest rate allowable under applicable law. You agree to, and will, pay Robyn its reasonable costs of collection (and other related expenses) in connection with any amounts you owe to Robyn. Robyn may refer debts to collections agencies as determined within its sole discretion.
d. Card Authorization. By making payments to Robyn or through the Services, you certify that you are the owner of the debit card, credit card (or other payment card), or bank account (each a “Card”) that you submit to Robyn for all such purchases. You are solely responsible for all activity and purchases on your account relating to the Services. You hereby authorize Robyn to initiate charges to your Card for all charges you place through the Services or your Account, including any auto-ship orders, and any applicable sales tax, shipping and handling charges. This authorization will remain in effect, unless Robyn receives a written notice from you stating that such authorization is terminated. Such termination will be effectuated within reasonable time thereafter (as judged within the reasonable discretion of Robyn) as would allow your financial institution and Robyn a reasonable opportunity to terminate such authorization.
e. Insufficient Funds. You expressly agree that Robyn shall not be liable for any overdraft or insufficient funds charges, such as finance charges and late fees, that are caused by your failure to maintain sufficient funds to pay Robyn (or any third party) for your purchases and charges hereunder or otherwise through the Services. If there are insufficient funds associated with your card, or if any transaction is rejected, it may result in Robyn charging you service fees and/or interest in connection therewith.
The Services are not intended to be used by persons under 13 years of Age. You represent and warrant that you are at least 13 years of age. If you are under age 13, you may not, under any circumstances or for any reason, use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity and change the eligibility criteria of the Services at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to you. You may not access the Services where these Terms of Service or use of the Services is prohibited, or to the extent the offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third party.
5. International Users.
The Services are not intended to be used by persons outside of the United States of America. Robyn, including its digital infrastructure is located in the United States of America. If you are located in a jurisdiction other than the United States of America, you hereby acknowledge and consent to the handling of the data you submit to Robyn pursuant to the laws of the United States of America and pursuant to the other applicable provisions of these Terms of Service.
6. California Users.
To sign up for the certain portions of the Services, you may be required to register for an account on the Services (an “Account”). You will provide accurate and complete information and keep your Account information updated. You shall not select or use as a username: (i) a name of another person with the intent to impersonate that person; (ii) a name subject to any rights of a person other than you without appropriate authorization; or (iii) a name that is otherwise offensive, vulgar or obscene. You are solely responsible for the activity that occurs on (or
through) your Account and for keeping your Account password (or other credentials) secure. You may never use another person’s user account or registration information for the Services without permission. If you create an Account on behalf of another person (the “Account Holder”), you hereby represent and warrant that: the Account Holder is independently eligible to create and have an Account, as set forth herein; the Account Holder agrees to be bound by these Terms of Service; and that you have received express permission from the Account Holder to create (and, to the extent applicable, operate) the Account. You must notify us immediately of any change in your (or any Account Holder’s) eligibility to use the Services (including any changes to or revocation of any licenses from state authorities), breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account. You shall have the ability to delete your Account, either directly or through a request made to one of our employees or affiliates.
a. Definition. For purposes of these Terms of Service, the term “Content” means all tangible works of authorship, including, without limitation, information, data, text, photographs, videos, audio clips, music, written posts and comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services. For the purposes of this Agreement, “Content” also includes all User Content and each User’s Service Content (both as defined below).
b. User Content. All Content added, created, uploaded, submitted, distributed, or posted to the Services by users (collectively “User Content”), whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You expressly represent and warrant: (i) that all User Content provided by you is accurate, complete, and up-to- date; (ii) that all User Content provided by you is in compliance with all applicable laws, rules and regulations and does not violate or infringe on any third party’s rights, including but not limited to privacy rights, rights of publicity, copyright, trademark, trade secret, patent and/or any other intellectual rights; (iii) that you own or have obtained from third parties the necessary licenses, rights, consents, and/or permissions to publish User Content that you submit and to grant us a worldwide, royalty free, sublicensable, assignable, non-exclusive license in such User Content, as provided in Section 8(e) below; and (iv) that all User Content submitted by you complies with the Rules of Conduct set forth in Section 9 below.
c. Notices and Restrictions. The Services, including but not limited to graphics, user interface, audio clips, video clips, editorial content, and the scripts and software used to implement the Services contains Content specifically provided by us, our partners or our users and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services. No portion of the Services may be reproduced in any form or by any means, except as expressly permitted hereunder. You acknowledge that your use of any Content, including but not limited to User Content, accessed by you while using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not guarantee that any Content you access on or through the Services is or will continue to be accurate.
d. Use License. Subject to these Terms of Service, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable, non-assignable and non-transferable license to use (i.e., to download and display locally) Content (other than your own User Content) solely for purposes of using the Services for the user’s personal, non-commercial use, and only within the functionality of the Service. Use, reproduction, public performance, modification, distribution or storage of any Content (other than your own User Content) for any reason other than using the Services for personal, non-commercial use is expressly prohibited without prior written permission from us. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates these Terms of Service or any third party right.
f. Availability of Content. As a condition of use, you acknowledge that we are generally a passive host of user-generated content and we do not have any obligation to review or otherwise pre-screen Content, including but not limited to User Content. We do not guarantee that any Content will be made available on the Site or through the Services. We reserve the right to, but do not have any obligation, to (i) pre-screen, refuse and/or remove any Content in our sole discretion, at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have violated these Terms of Service), or for no reason at all and (ii) to remove or block any Content from the Services. Furthermore, we reserve the right to restrict or prohibit your use of Services if we believe you are violating any of the terms of this Terms of Service and to remove, edit, or relocate any User Content as we see fit, whether for legal or other reasons.
9. DMCA COMPLIANCE AND COPYRIGHT INFRINGEMENT NOTICES.
If you wish to report infringing Content that is present on the Sites, please see our DMCA Copyright Policy. If you believe that your Content was removed or access to it was disabled in error, or that your Content was misidentified, you may submit a counter notification, as described in our DMCA Copyright Policy.
10. Rules of Conduct.
a. As a condition of use of the Services, you agree that you will not use the Services for any purpose that is prohibited by these Terms of Service. You are responsible for all of your activity in connection with the Services.
b. You shall not (and shall not permit any third party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, including without limitation any User Content, that:
i. infringes any patent, trademark, trade secret, copyright, right of publicity or any other right of any other person or entity or violates any law or contractual duty (see our DMCA Copyright Policy);
ii. you know or should know or reasonably believe is false, misleading, untruthful or inaccurate; iii. is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, profane, or is otherwise inappropriate as determined by us in our sole discretion;
iv. constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”);
v. contains (transmits, facilitates or otherwise enables) software viruses or any other computer codes, files, or programs that disrupt, damage, limit or interfere with the intended function of any software, hardware, or telecommunications equipment or which provide, enable, facilitate or obtain unauthorized access (whether on behalf of other software processes or natural persons) to (or control of, or ability to modify or interfere with) any system, data, password or other information of ours or of any third party;
vi. impersonates any person or entity, including any of our employees or representatives; or
vii. includes anyone’s identification documents or sensitive financial information; or
viii. in any way that violates any agreement to which you (or a relevant Account Holder) are subject or in any way violates any applicable law, regulation, order or agreement to which you (or a relevant Account Holder) are subject, including, without limitation, any applicable federal, state, local, foreign or international laws, rules and regulations governing securities, consumer protection, privacy and trade laws and regulations.
c. You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (iv) run any form of auto-responder or “spam” on the Services; (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site; (vi) harvest or scrape any Content from the Services; or (vii) otherwise take any action in violation of our guidelines and policies.
d. You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Services, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder, including through the Services or any rights pertaining to your use of, access to or exploitation of your Account or the Access Right. You shall abide by all applicable local, state, national and international laws and regulations.
e. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of us, our users and the public.
11. SMS; Third Party Sites.
Robyn may send communications to you on your mobile telephone by SMS or text message. Message and data rates from your mobile telephone service provider may apply and are subject to the terms and conditions imposed by your provider.
For your convenience and enjoyment, the Services may provide links to websites (and other digital resources) that are not operated by Robyn (each as a “Third Party Site”). Third Party Sites are not under our control, and you acknowledge and agree that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. Some links to Third Party Sites may be present on the Services in connection with paid promotions. Notwithstanding any such paid promotion, and except as otherwise expressly stated by Robyn, Robyn does not endorse, approve of or sponsors any Third Party Site or any information, products, or services contained in such Third Party Site, nor is
Robyn liable for any claims or any damage that might result from your use of, or reliance on, such information, products, or services thereon.
YOU ACKNOWLEDGE AND AGREE THAT ROBYN IS NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH THE USE OF OR RELIANCE ON ANY SUCH CONTENT, GOODS OR SERVICES AVAILABLE ON OR THROUGH ANY SUCH WEBSITE OR RESOURCE. FOLLOWING ANY SUCH LINKS TO ANY SUCH WEBSITES IS DONE AT YOUR SOLE RISK.
12. Marketplace Providers.
The Services may include promotional content for providers of fertility, wellness, obstetric, gynecological and ancillary or related services (each a “Marketplace Provider”). The Services may also include functionality allowing you to communicate with, engage and pay Marketplace Providers. You (including any applicable Account Holder) are fully responsible for entering into relationships with Marketplace Providers, including any agreements executed between you (and any applicable Account Holder) and such Marketplace Provider. As further set forth herein, Robyn does not make any representation or warranty pertaining to any Marketplace Provider and you enter into relationships with, and you rely upon the advice and services provided by, Marketplace Providers at your own risk. To the maximum extent allowable under law, you (and each applicable Account Holder) hereby irrevocably release Robyn from any and all liability arising from or related to your relationship with or reliance upon any Marketplace Provider. You acknowledge that Robyn has not conducted any independent investigation into the quality, history or background of any Marketplace Provider. The presence of information pertaining to any Marketplace Provider on the Services is not an endorsement or approval by Robyn of such Marketplace Provider.
13. Promotions and Giveaways.
From time to time, we may offer sweepstakes, promotions or giveaways on behalf of third parties. Each promotion or giveaway will have its own rules that will disclose what information is gathered, how that information is used, and who that information is shared with. You must review and agree to be bound by such applicable information and rules prior to engaging with each sweepstakes, promotion or giveaway.
a. We may terminate your access (including any Access Right granted hereunder) to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your membership. You acknowledge and agree that notice is not required for any such termination to be effective. To the extent Robyn voluntarily desires to provide notice to you, you acknowledge that if the information you have provided to us for notice purposes is inaccurate, or if you have not provided notice information to us, or if Robyn ceases operating a part or a whole, we reserve the right to remove and/or disable access to Content, decline to restore the Content and/or access to it, or suspend and/or terminate your account if we have a good-faith belief that the Content violates these Terms of Service. See our DMCA Copyright Policy.
b. If you wish to terminate your Account, you may do so by following the instructions on the Site or through the Services. Any fees paid to Robyn are non-refundable.
c. All provisions of this Agreement which by their nature should survive termination or expiration or expiration shall survive any such termination or expiration, including, without limitation, licenses of User Content and the Durable Provisions.
15. Marketplace Provider Agreements.
Marketplace Providers are subject to these Terms of Service in addition to the terms set forth in their Provider Agreement with Robyn.
By entering into your Provider Agreement with Robyn, you agree to be bound by this Agreement.
16. HEALTHCARE DISCLAIMERS.
You acknowledge that while the Services include content provided by independent practitioners such as the articles found in our ‘Fertility Resources’ as well all other text, data, graphics, images, photographs, video, audio, information, suggestions, guidance, and other materials provided, made available or otherwise found through the Services, including, without limitation, content provided in direct response to your questions or postings on the Site (collectively, “Service Content”), the provision of such Service Content does not create a doctor-patient, therapist-patient or other healthcare professional relationship between you and Robyn, and does not constitute an opinion, medical advice, or diagnosis or treatment, but is provided to assist you in choosing a doctor or other healthcare specialist, professional, provider, organization, or agents or affiliates thereof (collectively, “Healthcare Provider”).
The Services provide information and resources pertaining to fertility, wellness, obstetric, gynecological and ancillary or related services and are intended only to assist users in their personal fertility, health, wellness and fitness related efforts (the foregoing together a “Fertility Journey”). Robyn is not a medical organization or a provider and our personnel cannot give you medical advice or diagnosis. Nothing contained on the Site is or should be construed as advice or diagnosis. Any information or reports generated by us should not be interpreted as a substitute for physician consultation, evaluation, or treatment. You are urged and advised to seek the advice of a physician before beginning any Fertility Journey. If you are a minor, or have any health conditions, you are specifically warned to seek professional medical advice prior to initiating any Fertility Journey. By using the Services, you agree, represent and warrant that you have consulted with your physician before engaging in activity based upon information available or services provided through the Services. We do not recommend or endorse any specific tests or treatment regimen, Healthcare Providers, procedures, opinions, Service Content or other information that may appear through the Services. Everyone’s condition and abilities are different, and participating in the activities promoted by our Services and related Fertility Journey is at your own risk. If you choose to participate in any Fertility Journey in connection with the Services, you do so of your own free will and accord, knowingly and voluntarily assuming all risks associated with such Fertility Journey, including any risks of property damage, bodily injury, or death even if caused in whole or part by the action, inaction, or negligence of Robyn or by the action, inaction, or negligence of others. Certain Fertility Journeys provided by the Services may pose risks even to those who are currently in good health.
Robyn encourages Healthcare Providers to use the Services responsibly and in accordance with these Terms of Service, but we have no control over, and cannot guarantee the availability of, any Healthcare Provider at any particular time. You acknowledge and agree that we will not be liable for cancelled or otherwise unfulfilled appointments, or any injury or loss resulting therefrom, or for any other injury or loss resulting or arising from, or related to, the use of the Services whatsoever.
Success stories posted by users or Robyn on our Services may not represent typical or even accurate results obtained from any particular Fertility Journey. To the extent permitted by applicable law, Robyn has no and assumes no obligation or liability associated with the accuracy, reliability or effectiveness of any Fertility Journey recommendation contained in any success stories on the Services.
Some of the Services may be aimed at tracking your physical movements and sleep activity (“Activity Tracking Services”). These Activity Tracking Services rely on sensors and/or GPS functionality that track your movement or body at rest. The data and information provided by the Activity Tracking Services are intended to be a representation of your activity, but may not be completely accurate, including with respect to step, sleep, speed, distance, or calorie data. By using Activity Tracking Services, you acknowledge and agree that Robyn is not responsible or liable for any inaccuracy in such data.
17. Additional Warranty Disclaimers.
A. AS FURTHER SET FORTH IN SECTION 16 (HEALTH DISCLAIMERS) WE HAVE NO SPECIAL RELATIONSHIP WITH OR FIDUCIARY DUTY TO YOU. YOU ACKNOWLEDGE THAT WE HAVE NO DUTY TO TAKE ANY ACTION REGARDING:
I. WHICH USERS GAIN ACCESS TO THE SERVICES;
II. WHAT CONTENT YOU ACCESS VIA THE SERVICES; OR
III. HOW YOU MAY INTERPRET OR USE THE CONTENT OR WHAT EFFECT THE CONTENT MAY HAVE ON YOU;
IV. HOW YOU MAY INTERPRET OR USE THE CONTENT;
V. OR WHAT ACTIONS YOU MAY TAKE AS A RESULT OF HAVING BEEN EXPOSED TO THE CONTENT.
B. YOU RELEASE US FROM ALL LIABILITY IN CONNECTION WITH YOUR USE OF, OR RELIANCE ON, THE SERVICES, ANY MARKETPLACE PROVIDERS AND/OR ALL CONTENT ACCESSED OR MADE AVAILABLE THROUGH THE SERVICES. ROBYN AFFIRMATIVELY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES CONCERNING ANY MARKETPLACE PROVIDER AND/OR ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND WE WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, OR LEGALITY OF MATERIAL OR CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES. WE HAVE NO SPECIAL RELATIONSHIP WITH OR FIDUCIARY DUTY TO YOU.
c. ROBYN ENDEAVORS TO SECURE THE SITES BY UTILIZING COMMERCIALLY REASONABLE SECURITY PRACTICES, BUT IT CANNOT GUARANTEE THAT THE SITES WILL BE ERROR-FREE OR COMPLETELY SECURE.
D. YOU ACKNOWLEDGE, BY YOUR USE OF OUR SITE, THAT YOUR USE OF OUR SITE IS AT YOUR SOLE RISK, THAT YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS, LIABILITIES, RISKS AND DAMAGES ASSOCIATED WITH YOUR USE OF THE SERVICES, ANY SERVICES OR PRODUCTS PURCHASED OR ACCESSED THROUGH THE SERVICES OR IN CONNECTION THEREWITH, OR YOUR RELATIONSHIP WITH, USE OF OR RELIANCE ON ANY MARKETPLACE PROVIDER AND THAT ROBYN SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES OF ANY KIND RELATED TO YOUR USE OF OUR SERVICES OR ANY OF THE FOREGOING.
E. EXCEPT AS EXPRESSLY SET FORTH HEREIN, ROBYN MAKES, AND YOU RECEIVE, NO REPRESENTATIONS OR WARRANTIES OF ANY KIND IN CONNECTION WITH THE CONTENT, SERVICES AND/OR THE MARKETPLACE PROVIDERS. THE SERVICES AND CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, AND ROBYN (INCLUDING ALL OF ITS PARENTS, SUBSIDIARIES AND AFFILIATES) DISCLAIMS ANY AND ALL SUCH WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, NO WARRANTY IS MADE THAT: (I) THE SERVICES WILL BE SECURE, UNINTERRUPTED OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) THE SERVICES WILL BE ERROR FREE OR THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS; (V) THAT THE SERVICES AND/OR CONTENT WILL BE ACCURATE, ADEQUATE, RELIABLE,
TIMELY OR COMPLETELY; AND/OR (VI) THAT ANY ERRORS IN THE CONTENT AND/OR SERVICES WILL BE CORRECTED. ROBYN IS NOT RESPONSIBLE FOR ANY OF THE ACTIONS OR OMISSIONS OF VISITORS OR MARKETPLACE PROVIDER.
You shall defend, indemnify, and hold harmless Robyn, including its parents, subsidiaries and affiliates (and the successors and assigns of each of the foregoing), and each of their respective owners, directors, officers, employees, contractors, agents, suppliers and representatives (and the successors and assigns of each of the foregoing; the foregoing together as the “Robyn Indemnitees”) from and against any and all losses, claims, demands, causes of action or proceedings and any and all obligations, liability, damages, or expenses (including all costs, expenses, and attorney’s fees; together as “Losses”) that arise from or relate to: your (or your Account Holder’s) relationship with, use of or reliance on any Marketplace Provider; your (or your Account Holder’s) use or misuse of, or access to, the Services, Content, or otherwise from your (or your account Holder’s) User Content; your (or your Account Holder’s) violation of these Terms of Service; or infringement by you, your Account Holder, or any third party using your Account or identity in the Services, of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you will assist and cooperate with us in asserting any available defenses.
19. Limitation of Liability.
TO THE EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY OR ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY, THE ROBYN INDEMNITEES SHALL NOT BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR FOR ANY DAMAGES RESULTING FROM LOSS OR INTERRUPTION OF BUSINESS, LOST BUSINESS OPPORTUNITY, DATA BREACH, LOST DATA OR LOST PROFITS, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, HOWEVER CAUSED, EVEN IF SUCH ROBYN INDEMNITEE HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE ROBYN INDEMNITEES’ TOTAL AGGREGATE LIABILITY TO YOU FOR DAMAGES IN CONNECTION WITH THIS AGREEMENT, THE SERVICES, THE CONTENT PRODUCT OR ANY OTHER MATERIALS PROVIDED TO YOU HEREUNDER, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY (UNDER ANY THEORY, WHETHER IN CONTRACT, TORT, STATUTE, INDEMNITY OR OTHERWISE) SHALL NOT EXCEED THE AGGREGATE OF THE GREATER OF (A) FEES YOU PAID TO US FOR THE PARTICULAR SERVICES DURING THE IMMEDIATELY PREVIOUS THREE (3) MONTH PERIOD AND (B) $500.00.
THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF THE THEORY OF LIABILITY, AND EVEN IF WE
HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, YOU SHALL REMAIN FULLY LIABLE TO US, WITHOUT EXCEPTION, FOR ANY BREACH, DEFAULT OR VIOLATION OF THESE TERMS OF SERVICE, AND YOUR USE OF THE SERVICES. YOU SHALL REMAIN FULLY LIABLE TO US WITHOUT EXCEPTION FOR ANY AND ALL LOSSES (DEFINED IN SECTION 18) INCURRED BY US IN CONNECTION WITH YOUR USE OF THE SITES.
REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, YOU MUST FILE ANY CLAIM, CAUSE OF ACTION OR OTHER DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR USE OF THE SITES WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR ELSE ANY SUCH CLAIM, CAUSE OF ACTION OR OTHER DISPUTE WILL BE DEEMED TO HAVE BEEN IRREVOCABLY WAIVED.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 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.”
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
20. GOVERNING LAW; FORUM; CLASS ACTION WAIVER.
These Terms of Service shall be governed by and construed in accordance with the Federal Arbitration Act, applicable federal law and the internal laws of the State of New York, without reference to its conflicts of law rules.
For any dispute not subject to binding arbitration hereunder, you hereby irrevocably and unconditionally consent to submit to the jurisdiction of the State or Federal Courts located in Los Angeles County in California, for all disputes, including any litigation (each a “Dispute”), arising out of or relating to this Agreement, your use of the Services or any purchases made through the Services. Further, you covenant not to commence any litigation relating thereto except in such courts and irrevocably waive any objection to such jurisdiction and venue, including any objection of forum non conveniens. Each party shall be responsible for their own expenses, costs, and attorney’s fees for any dispute arising out of or in connection to this Agreement.
YOU HEREBY KNOWINGLY AGREE THAT ANY PROCEEDING, IN COURT OR BEFORE ANY OTHER COMPETENT TRIBUNAL, INCLUDING AT ARBITRATION IF APPLICABLE, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN
A CLASS OR REPRESENTATIVE ACTION OR AS A MEMBER IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. YOU HEREBY ACKNOWLEDGE THAT YOU ARE WAIVING YOUR ABILITY TO JOIN A CLASS ACTION AGAINST ROBYN IN CONNECTION WITH THE ANY CLAIM ARISING FROM OR RELATED TO SITES.
21. BINDING ARBITRATION.
Any dispute or claim relating in any way to your use of any Services, or to any products or services sold or distributed by Robyn or through the Services will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Terms of Service as a court would.
AAA will conduct any arbitration under its Commercial Arbitration Rules (or if you are an individual and use the Services for personal or household use, or if the value of the dispute is $75,000 or less whether or not you are an individual or how you use the Services, its Consumer Arbitration Rules). For more information, see www.adr.org or call 1-800-778-7879. To start an arbitration, mail us at the contact information below. In a dispute involving $25,000 or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead. Any in-person hearing will take place in Los Angeles County, California, in the United States. The arbitrator may award the same damages to you individually as a court could. The arbitrator may award declaratory or injunctive relief only to you individually to satisfy your individual claim. Under AAA Rules, the arbitrator rules on his or her own jurisdiction, including the arbitrability of any claim. But a court has exclusive authority to enforce the prohibition on arbitration on a class-wide basis or in a representative capacity. As set forth in Section 20, all arbitrations will be on an individual basis only.
Contact Address for Arbitration Notices Robyn Inc.
145 S. Fairfax Ave.
Suites 200 & 300
Los Angeles, CA 90036 Attention: General Counsel
22. WAIVER OF JURY TRIAL; RELEASE
YOU AND ROBYN HEREBY WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE ARISING FROM OR RELATED TO THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
To the maximum extent permitted by applicable law, you hereby release Robyn from any and all claims, demands, losses, damages, rights, and actions of any kind including arising from or related to personal injury, death or property damage, that are directly or indirectly related to or arise from: (i) the actions and omissions of other users of the sites, including your interactions with such other users; (ii) the actions and omissions of Marketplace Providers, including your interactions with, relationships with and/or reliance upon such Marketplace Providers; (ii) the actions and omissions of Third Party Sites, including your interactions with such Third Party Sites.
We reserve the right, in our sole discretion, to modify or replace any of these Terms of Service, or change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending you notice through the Services, via e-mail or by another appropriate means of electronic communication. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. While we will timely provide notice of modifications, it is also your responsibility to check these Terms of Service periodically for changes. Your continued use of the Services following notification of any changes to these Terms of Service constitutes acceptance of those changes.
NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, IF ROBYN MODIFIES ANY DURABLE PROVISION, ANY MODIFICATION WILL NOT APPLY TO ANY INDIVIDUAL DISPUTE THAT HAS ACCRUED PRIOR TO THE DATE OF SUCH MODIFICATION.
a. Severability. If any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired but shall instead remain in full force and effect and enforceable. Further, the invalid, illegal or unenforceable provision shall be replaced by a provision that comes closest to the intention of the parties that underlie the invalid, illegal or unenforceable provision, except to the extent no such provision is valid, legal and enforceable, in which case such invalid, illegal or unenforceable provision shall be limited or eliminated to the minimum extent necessary so that the other provisions of this Agreement remain in full force and effect and enforceable.
b. Entire Agreement. These Terms of Service are the entire agreement between you and us with respect to the Services, including use of the Site, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. The captions and section and paragraph headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement. The construction of this Agreement shall not take into consideration the party who drafted or whose representative drafted any portion of this Agreement, and no canon of construction shall be applied that resolves ambiguities against the drafter of a document. Neither the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) nor the Uniform Computer Information Transactions Act (“UCITA”) shall not apply to this Agreement or its interpretation. Whenever the context so requires, each pronoun or verb used herein shall be construed in the singular or the plural sense and each capitalized term defined herein and each pronoun used herein shall be construed in the
masculine, feminine or neuter sense. References to Sections and Appendices are to Sections and Appendices of this Agreement unless otherwise specified. Whenever the words “include”, “includes” or “including” are used, they are deemed to be followed by the words “without limitation.” The words “herein,” “hereof” and other words of similar import refer to this Agreement as a whole and not to any particular section, subsection, paragraph, clause, or other subdivision. The word “or” is not exclusive but shall mean “and/or”. The symbol “$”, and all references to cash amounts, refer to United States dollars.
c. Force Majeure. We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
e. Agency. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect.
f. Notices. Unless otherwise specified in these Term of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by e- mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to firstname.lastname@example.org. We may use any notice address you provide to us, including through any Account. We may update our notice contact information by updating the contact in these Terms of Service.
g. No Waiver. Our failure to enforce any part of these Terms of Service shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
Contact: You may contact us at: email@example.com