Last Updated: February 1st, 2019
Welcome, and thank you for your interest in Wisy, Inc. (“Wisy,” “we,” or “us”) and our website at www.wisy.app, our mobile app Wisy, along with our related websites, networks, applications, mobile applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Wisy regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 16, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND WISY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 16.)
1. Wisy Service Overview. Wisy builds collaborative communities through connecting people and real places to the digital world by combining gamification, rewards program, and data analysis, and helps to gather and disseminate location-specific collective intelligence. Our Services allow for data collection anywhere in the world and for a wide range of industries. Through our Wisy platform, users can establish and sponsor reward programs (each a “Quest”) and participate in those Quests.
2. Eligibility. If you are a natural person, you must be at least 13 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 13 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms. By using the Service, you acknowledge that certain jurisdictions have laws regarding contests and sweepstakes that may prevent Wisy from awarding you a prize. By using the Service, you acknowledge the risks, and understand that you may win but not be able to receive a prize.
3. Accounts and Registration. To access certain features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, date of birth, country of residence, gender or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to sign-in through any of your existing social media accounts or email address. You are solely responsible for maintaining the confidentiality of your account, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at email@example.com.
4. Quests. From time to time, Wisy may allow through the Service, or provide the ability for you or other users of the Service to offer through the Service, Quests where participating users satisfying certain criteria may receive prizes or rewards.
4.1 Participating in a Quest. You may participate in Quests offering certain promotional benefits and rewards, each of which is offered through the Service by its sponsor (a “Quest Sponsor”). Each Quest will be subject to additional terms presented to you at the time of joining that Quest (“Quest Rules”), which Quest Rules are required and administered by the applicable Quest Sponsor or by us on behalf of the applicable Quest Sponsor. Using the Service does not require you to enter any Quest, but you may enter a Quest at your own discretion. In order for you to enter a Quest, you must meet the eligibility requirements as provided in the Quest Rules. A particular Quest will start and end as indicated in the Quest Rules. In each Quest that you participate, you may not actively use more than one Wisy account. Quests will be void where prohibited or restricted by law or where there are registration or bonding requirements. Odds of winning will depend on the number of people participating in a Quest. An alternative winner may be selected if the initial winner fails to respond to a request made by the Quest Sponsor or us within the required time period. In the event of a dispute as to the identity of a winner, Wisy or the applicable Quest Sponsor, as applicable, reserves the right to make the final determination. You agree that, as between you and the applicable Quest Sponsor of a Quest that you participate, the applicable Quest Sponsor has the sole right to decide all matters and disputes arising from that Quest, which decision will be final and binding. The applicable Quest Sponsor and Wisy reserve the right to disqualify and prosecute to the fullest extent permitted by law any participant or winner who they suspect has tampered with a Quest, the entry or participation process, violated the Quest Rules, or acted in an unsportsmanlike or disruptive manner. Except where prohibited, participation in a Quest constitutes your consent to Wisy’s and its licensees’ use of your name, likeness, images, videos, voice, opinions, biographical information, and location, and any information uploaded by you for promotional purposes in any media without further payment or consideration. Quest winners may be posted for a period of time on the Wisy sites and social media accounts and/or the Quest Sponsor site and social media accounts. Quest winners will be posted in those places where the law requires it.
Wisy and Quest Sponsors reserve the right to shorten, extend, modify, or cancel any Quest, in its sole discretion, at any time and without notice, even though such action may affect your ability to win a prize or reward. Quest Sponsors and Wisy are not responsible for any typographical or other error in printing or description of any Quest. These Quests, as well as any other contests, giveaways, or promotions offered through the Service, may be subject to additional terms and conditions (including third-party terms and conditions) and it is your responsibility to carefully review those terms and conditions.
Wisy does not have any obligation to review Quests, Quest Rules, or the use of the Service by Quest Sponsors. Wisy assumes no responsibility or liability for Quests, Quest Sponsors, or any loss or damage incurred as a result of participation in a Quest. We make no representation that Quests are appropriate or lawful in any jurisdiction. Participating in a Quest from a jurisdiction where such participation is illegal is prohibited.
4.2 Prizes. The Quest Rules will indicate (i) the prizes and rewards to be awarded each winner, and (ii) if applicable, the approximate retail value of each prize and reward awarded and the aggregate approximate value of all prizes and rewards. No substitution, assignment, or transfer of the prizes or rewards is permitted, except by Quest Sponsor, who has the right to substitute a prize or reward with another comparable one. Prizes and rewards awarded may be subject to third-party terms and conditions. You are responsible for all taxes and fees associated with the receipt and use of any prize and reward, and prize and reward winners may have to provide a taxpayer identification prior to the awarding of any prize or reward. Quest Sponsors and their designees have the right to withhold payment or awarding of any prize or reward as they believe reasonably necessary for legal compliance, including any tax regulations. You may have to provide a personal identification number or taxpayer identification number prior to the awarding of any prize.
4.3 Submitting User Content for a Quest. Some Quests may require you to submit certain User Content to be eligible for a prize or reward. Any User Content may be made permanently available on the Service so long as such Quest is available on the Service. You irrevocably waive (and caused to be waived) any claims and assertions of moral rights or attribution with respect to your User Content. You also waive (and cause to be waived) any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any portion thereof.
4.4 Sponsoring a Quest. Becoming a Quest Sponsor and sponsoring a Quest are subject to the approval of Wisy, which approval will be made at Wisy’s sole discretion. If approved by Wisy as a Quest Sponsor, you will be solely responsible for obtaining the prizes and rewards described in any Quest subsequently approved by us.
For non-cash prizes and rewards, Wisy may require, in its sole discretion, the total value of prizes and rewards to be deposited into an escrow account in advance of approving or posting a Quest. Quest Sponsor agrees to deposit such prize and reward amounts with Wisy via the method as described at the time of the submission of a proposed Quest or as otherwise expressly agreed to in writing by Wisy. Quest Sponsor will be responsible for fulfilling all non-cash prize and reward obligations to winning participants for each Quest, after which Wisy will confirm the fulfillment and release any deposited amounts held by Wisy for that Quest.
By posting a Quest and encouraging others to participate, as Quest Sponsor, you represent and warrant that the Quest (i) does not and will not violate any applicable federal, state, or local laws or regulations or these Terms; and (ii) does not and will not infringe on or violate any third-party rights, and that the Quest does not and will not encourage or contribute to participants infringing on or violating any third-party rights.
Wisy does not have an obligation to review Quests, Quest Rules, or the User Content submitted in connection with an applicable Quest. Wisy assumes no responsibility or liability for Quests, User Content, or any loss or damage incurred as a result of sponsoring a Quest. Despite any approval of a Quest, Wisy makes no representation that Quests are appropriate or lawful in any jurisdiction. Sponsoring a Quest from a jurisdiction where such activity is illegal is prohibited.
4.5 Quest Sponsor Fees. Sponsoring a Quest and certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable. Wisy reserves the right to determine pricing for each Quest. Wisy will make reasonable efforts to keep pricing information published on the website up to date. We encourage you to check our website periodically for current pricing information. Wisy may change the fees for any feature of the Service, including additional fees or charges, if Wisy gives you advance notice of changes before they apply. Wisy, at its sole discretion, may make promotional offers with different features and different pricing to any of Wisy’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
You authorize Wisy to charge all sums for the orders that you select as described in these Terms or published by Wisy, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, Wisy may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. Wisy may suspend or terminate access to the Service, including Quests, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.
4.6 Terminating a Quest. A participant in a Quest may discontinue participating at any time. A Quest Sponsor may cancel a submitted Quest at any time before such Quest is approved by Wisy. A Quest Sponsor may not terminate or otherwise change the terms of a Quest once the Quest has been approved by Wisy without the express written consent of Wisy. Quest Sponsor agrees to pay any costs associated with a termination to Wisy. Wisy may suspend or terminate a Quest at any time if Wisy believes such suspension or termination is necessary to protect the safety and integrity of the Service, its users, and Wisy, or if Wisy believes, in its sole discretion, that a Quest or Quest Sponsor has violated, or is likely to violate, these Terms or other terms agreed to between Wisy and Quest Sponsor.
5.1 Limited License. Subject to your complete and ongoing compliance with these Terms, Wisy grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile application associated with the Service obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control; and (b) access and use the Service.
5.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
5.3 Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Wisy an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
6. Ownership; Proprietary Rights. The Service is owned and operated by Wisy. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, text, broadcasts, streams, images, videos, audio recordings, music, audiovisual works, other works, and all other elements of the Service (“Materials”) provided by Wisy are protected by intellectual property and other laws. All Materials included in the Service, other than your User Content, are the property of Wisy or its third party licensors. Except as expressly authorized by Wisy, you may not make use of the Materials. Wisy reserves all rights to the Materials not granted expressly in these Terms.
7. Third Party Terms
7.1 Third Party Services and Linked Websites. Wisy may provide tools through the Service that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on Wisy with an account on a third-party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons)]. By using one of these tools, you agree that Wisy may transfer that information to the applicable third party service. Third party services are not under Wisy’s control, and, to the fullest extent permitted by law, Wisy is not responsible for any third party service’s use of your exported information. The Service may also contain links to third party websites. Linked websites are not under Wisy’s control, and Wisy is not responsible for their content.
7.2 Third Party Software. The Service may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses.
8. User Content
8.1. User Content Generally. Certain features of the Service may permit users to upload content to the Service, including messages, photos, video, images, data, text, and other types of works (“User Content”) and to publish User Content on the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service.
8.2 Limited License Grant to Wisy. You hereby grant, and you hereby represent and warrant that you have the right to grant, to Wisy an irrevocable, non-exclusive, royalty-free, fully paid, transferable, perpetual, and worldwide right and license (with the right to sublicense) to reproduce, distribute, host, store, transmit, commercialize, publicly display and perform, modify for the purpose of formatting for display, prepare derivative works of, incorporate into other works, and otherwise use your User Content, in whole or in part, and to grant sublicenses of the foregoing, for any purpose.
8.3 Limited License Grant to Other Users. You hereby grant other users and Quest Sponsors a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
8.4 User Content Representations and Warranties. Wisy disclaims any and all liability in connection with User Content. You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness, or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby affirm, represent, and warrant that:
a. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Wisy and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section 8, in the manner contemplated by Wisy, the Service, and these Terms;
b. your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Wisy to violate any law or regulation; and
c. your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
8.5 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Wisy may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Wisy with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Wisy does not permit copyright-infringing activities on the Service.
9. Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
a. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
b. harass, threaten, demean, embarrass, or otherwise harm any other user of the Service;
c. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
d. interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
e. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
f. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without perQuest, or falsifying your age or date of birth;
g. sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6) or any right or ability to view, access, or use any Materials; or
h. attempt to do any of the acts described in this Section 9 or assist or permit any person in engaging in any of the acts described in this Section 9.
10. Digital Millennium Copyright Act
10.1 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
ATTN: Legal Department (Copyright Notification)
156 2nd Street
CA 94105, USA
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
b. a description of the copyrighted work or other intellectual property that you claim has been infringed;
c. a description of the material that you claim is infringing and where it is located on the Service;
d. your address, telephone number, and email address;
e. a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
f. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
10.2 Repeat Infringers. Wisy will promptly terminate the accounts of users that are determined by Wisy to be repeat infringers.
11. Modification of these Terms. We reserve the right to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 11, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
12. Term, Termination and Modification of the Service
12.1 Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 12.2.
12.2 Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, Wisy may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by clicking delete in account profile or contacting customer service at firstname.lastname@example.org
12.3 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Wisy any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 5.3, 6, 12.3, 13, 14, 15, 16, and 17 will survive.
12.4 Modification of the Service. Wisy reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Wisy will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
13. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Wisy and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Wisy Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
14. Disclaimers; No Warranties
THE SERVICE, QUESTS, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. WISY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE, QUESTS, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. WISY DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND WISY DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR WISY ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE WISY ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Wisy does not disclaim any warranty or other right that Wisy is prohibited from disclaiming under applicable law.
15. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE WISY ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE, QUESTS, OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY WISY ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 16.4 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE WISY ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO WISY FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; (B) VALUE OF PRIZES YOU’VE WON DURING THE IMMEDIATELY PRECEDING THREE (3) MONTHS; OR (C) $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 15 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
16. Dispute Resolution and Arbitration
16.1 Generally. In the interest of resolving disputes between you and Wisy in the most expedient and cost-effective manner, and except as described in Section 16.2, you and Wisy agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND WISY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
16.2 Exceptions. Despite the provisions of Section 16.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
16.3 Arbitrator. Any arbitration between you and Wisy will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Wisy. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
16.4 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Wisy’s address for Notice is: Wisy, Inc., 156 2nd Street San Francisco, CA 94105, USA, Email: email@example.com. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Wisy may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Wisy must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Wisy in settlement of the dispute prior to the award, Wisy will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
16.5 Fees. If you commence arbitration in accordance with these Terms, Wisy will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Francisco County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Wisy for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
16.6 No Class Actions. YOU AND WISY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Wisy agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
16.7 Modifications to this Arbitration Provision. If Wisy makes any future change to this arbitration provision, other than a change to Wisy’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Wisy’s address for Notice of Arbitration, in which case your account with Wisy will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
16.8 Enforceability. If Section 16.6 is found to be unenforceable or if the entirety of this Section 16 is found to be unenforceable, then the entirety of this Section 16 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 17.2 will govern any action arising out of or related to these Terms.
17.2 Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Wisy submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco Country, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
17.4 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
17.6 Contact Information. The Service is offered by Wisy, Inc., located at 156 2nd Street San Francisco, CA 94105, USA. You may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org.
17.7 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
17.8 No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
17.9 International Use. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
18. Notice Regarding Apple.
This Section 18 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Wisy only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.