HoneyGrid, Inc (“HoneyGrid” or “we,” “us,” or “our”) provides geotargeting and branding AdTech software-as-a-service products and related mobile applications (“Apps”) and online platforms (collectively, the “Platform”) to business entities that have a current subscription to access and use the Platform (our “Customers”). By accessing or using the Platform, you agree to read, comply with, and be legally bound by: (i) these HoneyGrid End User Terms and Conditions (“End User Terms”); (ii) any additional terms and conditions, agreements, and policies published by HoneyGrid or otherwise made available to you that are applicable to your access to or use of the Platform (collectively, the “Rules”); and (iii) any other agreements applicable to your access to or use of the Platform that we enter into with our Customers that authorize you to access and use the Platform on their behalf, which may include, without limitation, the Software as a Service Agreement for the Platform, (collectively, the “Additional Agreements”). These End User Terms, the Rules, and any and all Additional Agreements are collectively referred to in these End User Terms as the “HoneyGrid Agreements”).
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN COURT OR JURY TRIALS OR CLASS ACTIONS AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. CAREFULLY REVIEW THE DISPUTE RESOLUTION SECTION OF THESE TERMS BEFORE YOU ACCESS OR USE THE WEBSITE.
1. CHANGES TO END USER TERMS We may update or modify these End User Terms from time to time, without limitation, by posting a revised version of these End User Terms on our website(s) and by publishing a general notice of such changes on our website(s) or through the Platform. By accessing or using the Platform after we have provided such notice, you agree to be bound by such updates or modifications.
2. USING THE PLATFORM 2.1. Accounts (a) You may be required to create an account, including a username and password, to use the Platform. Once you do so, you are responsible for maintaining the confidentiality of your password and account and you may not share your password or account with another person. (b) You are responsible for all activities that occur under your account, so be sure to fully exit from your account at the end of each session. If you lose your password or become aware of access to your account other than by you, you agree to notify HoneyGrid immediately. If HoneyGrid believes that your account has been compromised, HoneyGrid may require you to update your password. In the event HoneyGrid reasonably believes that your actions affect other users or third parties, HoneyGrid may warn such other users or third parties, including law enforcement. HoneyGrid may also investigate any perceived misuse of your account, refer matters to law enforcement, and/or take other legal action. HoneyGrid reserves its rights to cancel, suspend or limit the use of your account in HoneyGrid’s sole discretion. (c) We are not liable to you or any third party for any unauthorized use of your account, including, without limitation, any damage that results from any compromise or theft of your account. 2.2 Restrictions In using the Platform, you may not: (a) copy, modify or make derivatives or improvements of the Platform or any manuals, or any other documentation, programs, or materials, if any, that HoneyGrid makes available to you or the applicable Customer related to the Platform (together the “HoneyGrid Materials”); (b) use the Platform to store or transmit a program, routine or device designed to delete, disable, deactivate, interfere with, prevent access to, or otherwise harm any software, program, data, device, system or service, including without limitation, any ‘time bomb’, virus, drop dead device, malicious logic, worm, Trojan horse or trap or back door; (c) use the Platform to store or transmit any infringing, defamatory, libelous, obscene, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights or other rights; (d) disassemble, reverse engineer, decompile, translate or attempt to reconstruct or discover any source code or underlying ideas, algorithms, file formats or programming or interoperability interfaces of the Platform; (e) sell, assign, transfer, sublicense, lease, pledge, distribute, rent or otherwise share your rights under the HoneyGrid Agreements, or include the Platform or any HoneyGrid Materials in a service bureau or outsourcing offering; (f) modify, obscure or remove any product identification or proprietary notices on the Platform or any HoneyGrid Materials; (g) modify or incorporate the Platform or any HoneyGrid Materials into or with other software, (h) interfere with the operation of the Platform; (i) bypass, breach or disable any usage limit, security device, copy control or digital rights management tool or other protection used in the Platform or any HoneyGrid Materials; (j) access or use the Platform or any HoneyGrid Materials for the purposes of benchmarking or competitive analysis, or developing any competitive product or service; or (k) use the Platform or any HoneyGrid Materials in violation of any applicable law, regulation or rule.
2.3 Unauthorized Action If you become aware of any actual or threatened activity that is prohibited in Section 2.2, you must immediately: (a) take all reasonable and lawful measures within your respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Platform and any HoneyGrid Materials); and (b) notify HoneyGrid of any such actual or threatened activity.
2.4 Customer Requirements Without limiting anything in the HoneyGrid Agreements, the applicable Customer may provide you with additional terms that govern your access to or use of the Platform on behalf of that Customer (“Customer Requirements”). By accessing and using the Platform, you acknowledge and agree that: (i) any Customer Requirements are between you and the applicable Customer and you and the applicable Customer are solely responsible for, and HoneyGrid shall have no obligations with respect to, any Customer Requirements, including, without limitation, resolving any disputes arising out of the Customer Requirements; and (ii) notwithstanding the foregoing, you will comply with any applicable Customer Requirements through or in connection with your access to and use of the Platform.
2.5 Feedback We appreciate your ideas, suggestions, proposals, and other feedback about the Platform (“Feedback”). By submitting any Feedback to us in any way, you acknowledge and agree that: (i) you will not include any confidential or proprietary information in any of your Feedback; (ii) we are not under any obligation of confidentiality, express or implied, with respect to any Feedback; (iii) we are entitled to disclose (or choose not to disclose) and use (or choose not to use) Feedback for any purpose and in any way; and (iv) you are not entitled to any compensation or reimbursement of any kind from us under any circumstances in connection with our disclosure, development or use of any Feedback.
2.6 Third Party Content The Platform may allow you to access certain applications, websites, and other content owned or otherwise controlled by third parties (“Third Party Services”). Your access to and/or use of these Third Party Services may be subject to separate terms imposed by the providers of these Third Party Services (“Third Party Terms”). By accessing or using any Third Party Services, you agree to comply with any applicable Third Party Terms presented or that you otherwise agree to in connection with your access to or use of the applicable Third Party Service. We are not responsible or liable for: (i) the availability, functionality or accuracy of any Third Party Services; or (ii) the content, products or services on or available through such Third Party Services. Access to Third Party Services through the Platform does not imply any endorsement by HoneyGrid of the Third Party Services or any products or services available through the Third Party Services.
2.7 Open Source Software We leverage open-source software that is available under the Apache 2 license.
3. OWNERSHIP AND LICENSE 3.1 The Platform and HoneyGrid Materials We (or third parties who have licensed their content to us) own all right, title and interest in and to the Platform as provided by us, including without limitation, all software and code that comprise and operate the Platform, the text, photographs, illustrations, images, graphics, audio, video, URLs and other materials we provide through the Platform, and all HoneyGrid Materials. The Platform and the HoneyGrid Materials are protected under trademark, service mark, trade dress, copyright, patent, trade secret and other intellectual property laws. In addition, the Platform and the HoneyGrid Materials are each a collective work under U.S. and international copyright laws and treaties, and we own the copyright in the selection, coordination, arrangement and enhancement of the Platform and the HoneyGrid Materials. For clarity, the foregoing does not apply to any User Content.
3.2 User Content The Platform may provide users with the ability to add, create, upload, submit, distribute, or share content on or through the Platform (collectively, “User Content”). If you provide any User Content (“Your Content”), you acknowledge that we: (i) have the right to reproduce, translate, encode, publish, use, and distribute any and all of Your Content to the extent necessary to provide and operate the Platform; (ii) have the right to aggregate any and all of Your Content and to use such aggregated data for any lawful purpose, including, without limitation, improving the Platform; and (iii) are not responsible or in any way liable for any corruption, misdelivery, or other loss of any of Your Content. As between you and us, you own all right, title, and interest in and to Your Content. In addition, we use Google Merchant Center, and Your Content may be provided to Google and may be made available to the general public.
3.3 Limited License Subject to your acceptance of, and compliance with, the applicable HoneyGrid Agreements, we hereby grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Platform and the applicable HoneyGrid Materials. You obtain no rights in the Platform or any HoneyGrid Materials except to use them in accordance with the applicable HoneyGrid Agreements.
3.5 Support We have no obligation under these End User Terms to provide support, maintenance, upgrades, modifications, or new releases of the Platform, unless otherwise stated in the applicable HoneyGrid Agreements.
3.6 Links from the Platform If the Platform contains links to other sites and resources provided by third parties, these links are provided for your convenience only. We have no control over the contents of those sites or resources and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to the Platform, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
4. DMCA POLICY 4.1 We respect the intellectual property rights of others and comply with the Digital Millennium Copyright Act (“DMCA”). If you are a copyright owner and believe content on our website (“Site”) infringes upon your copyright, you may request that we remove that infringing content from the Site. If you are a copyright owner and believe that we have removed your work by mistake or misidentification, you may respond by sending us a counter notification.
Please Note: if you knowingly and materially misrepresent that any material or activity on the Site infringes your copyright or was removed by mistake or misidentification, you may be held liable for damages under the DMCA.
4.2 Required Content of a Notice of Copyright Infringement In accordance with the DMCA, if you believe any materials accessible on the Site infringe your copyright, you must provide a written notification (“Notice”) to our designated agent listed below, that includes the following: (a) Identification of the copyrighted work you claim is infringed, or if multiple copyrighted works, a representative list of the works you claim are infringed; (b) Identification of the infringing material or activity in the identified copyrighted work(s), with sufficient detail to permit us to locate the material (you may include a reference link); (c) A statement that you have a good faith belief that the use of the copyrighted materials described above and contained on the Site is not authorized by the copyright owner, its agent or by protection of law; (d) A statement that the information in the Notice is accurate; (e) A statement that, under penalty of perjury, you are the copyright owner or authorized to act on behalf of the copyright owner that is allegedly infringed; (f) Your contact information, such as your name, address, telephone number and e-mail address; and (g) Your physical or electronic signature;
We will promptly investigate any claims of copyright infringement upon receipt of a Notice.
We will only respond to Notices that comply with applicable law. If we receive a valid Notice of alleged copyright infringement, we will remove the materials and take reasonable steps to contact the owner of the removed materials so that the owner is given the opportunity to respond with a counter notification.
4.3 The Required Content of a Counter Notification If we take down your materials as a result of receiving a valid DMCA Notice, and you believe such take down or removal was a mistake or misidentification, you may respond by sending us a written counter notification in accordance with the DMCA. The counter notification must include the following: (a) A list of the material(s) that was removed by HoneyGrid and the location of the material(s) before it was removed with sufficient detail so we may identify and locate the material(s); (b) A statement that you consent to the jurisdiction of U.S. Federal District Court for the judicial district in which you reside (or Salt Lake City, Utah, if your address is outside of the United States); (c) A statement that you will accept service of process from the person who provided the Notice to us of the alleged infringement or an agent of such person; (d) A statement that, under penalty of perjury, that you have a good faith belief that the material identified above was removed as a result of a mistake or misidentification of the material to be removed; (e) Your contact information, such as your name, address, telephone number and e-mail address; and (f) Your physical or electronic signature.
If we receive a valid counter notification, we will repost the applicable materials unless we receive notice from the original person or entity that provided the Notice that a legal action has been filed seeking a court order to restrain the alleged infringer from engaging in the infringing activity within ten business days of receiving the copy of the counter notice.
4.4 Address for Notices Please send your DMCA notice or counter notification by overnight mail, regular U.S. mail, or e-mail to our DMCA designated agent at: HoneyGrid, Inc Attn: DMCA Designated Agent: Mark Delorey 6300 Sagewood Dr Suite H359 Park City, UT 84098 United States
4.5 Repeat Infringers It is our policy to terminate repeat infringers’ use of the Site’s services, such as by terminating or disabling accounts (if applicable).
5. SPECIAL TERMS FOR APPS DISTRIBUTED THROUGH THE APPLE APP STORE
5.1 Acknowledgement Some of our Apps are available through the Apple App Store (“HoneyGrid Apple Apps”). You and HoneyGrid each acknowledge that these Terms and any other terms and conditions imposed by HoneyGrid with respect to the HoneyGrid Apple Apps and any other agreements entered into between you and HoneyGrid in connection with the HoneyGrid Apple Apps (collectively, the “HoneyGrid Apple Apps Agreements”) are between you and HoneyGrid only, and not with Apple, and that HoneyGrid, not Apple, is solely responsible for the HoneyGrid Apple Apps and the content thereof. In the event of the HoneyGrid Apple Apps Agreements provide usage rules for the HoneyGrid Apple Apps that are in conflict with the Apple Media Services Terms and Conditions, the Apple Media Services Terms and Conditions shall control with respect to the HoneyGrid Apple Apps. 5.2 Scope of License In addition to the other terms set forth in the HoneyGrid Apple Apps Agreements, the licenses granted to you for the HoneyGrid Apple Apps are solely for use by you on any Apple-branded product that you own or control and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions. 5.3 Maintenance and Support HoneyGrid is solely responsible for providing any maintenance and support services with respect to the HoneyGrid Apple Apps, as specified in the HoneyGrid Apple Apps Agreements or as required under applicable law. You and HoneyGrid acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the HoneyGrid Apple Apps. 5.4 Warranty HoneyGrid is solely responsible for any product warranties, whether express or implied by law, to the extent not disclaimed in the HoneyGrid Apple Apps Agreements. In the event of any failure of the HoneyGrid Apple Apps to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price for the applicable HoneyGrid Apple App (if any) to you. Further, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the HoneyGrid Apple Apps, and, subject to the limitations of liability set forth in the HoneyGrid Apple Apps Agreements, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform with any warranty will be HoneyGrid’s sole responsibility. 5.5 Product Claims You and HoneyGrid acknowledge that HoneyGrid, not Apple, is responsible for addressing any claims that you or any third party have relating to the HoneyGrid Apple Apps or your possession and/or use of the HoneyGrid Apple Apps, including, but not limited to: (1) product liability claims; (2) any claim that the HoneyGrid Apple Apps fail to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection, privacy or similar legislation. 5.6 Intellectual Property Rights You and HoneyGrid acknowledge that, in the event of any third-party claim that the HoneyGrid Apple Apps or your possession and use of the HoneyGrid Apple Apps infringes that third party’s intellectual property rights, subject to the limitations of liability and indemnification obligations set forth in the HoneyGrid Apple Apps Agreements, HoneyGrid, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. 5.7 Third Party Terms You must comply with applicable third-party terms when using the HoneyGrid Apple Apps.
5.8 Third Party Beneficiary You and HoneyGrid Apple Apps acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries to these Terms as applicable to the HoneyGrid Apple Apps, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms (as applicable) against you as a third-party beneficiary thereof.
6.1 Right to Terminate We reserve the right, with or without notice and in our sole discretion, to terminate these End User Terms, your account, and/or your ability to access or use the Platform or any HoneyGrid Materials for any reason, including, without limitation, (i) for lack of use; (ii) if we believe that you have violated or acted inconsistently with the letter or spirit of the applicable HoneyGrid Agreements; (iii) in the case of any activity by you that may harm us or other users, including, but not limited to, fraud, abuse of privileges, or misuse of the Platform or any HoneyGrid Materials; or (iv) we terminate any applicable HoneyGrid Agreement. You agree that we will not be liable to you or any third party for any such termination. 6.2 Effect of Termination Upon expiration or earlier termination of these End User Terms, all rights granted to you under these End User Terms will also terminate and you shall immediately discontinue use of the Platform and any HoneyGrid Materials.
7. DISCLAIMERS AND LIMITATION OF LIABILITY
7.1 Disclaimers IN ADDITION TO, AND NOT IN LIEU OF, ANY DISCLAIMERS SET FORTH IN THE APPLICABLE HONEYGRID AGREEMENTS, THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITH ALL FAULTS AND WITHOUT ANY CONDITION OR WARRANTY, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING NO IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, QUIET POSSESSION, OR NON-INFRINGEMENT. NOTHING WE OR OUR AFFILIATES SAY OR WRITE SHALL CREATE A WARRANTY OF ANY KIND. WE DO NOT WARRANT THAT THE PLATFORM, OR ANY OF THE RESULTS FROM THE USE THEREOF, WILL MEET YOUR, OR ANY THIRD PARTY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES OR BE SECURE, ACCURATE, COMPLETE, OR FREE OF HARMFUL CODE. WE EXPRESSLY DISCLAIM THAT THE PLATFORM WILL BE WITHOUT ERROR OR INVULNERABLE TO VIRUSES, WORMS, OR OTHER HARMFUL SOFTWARE. WE DO NOT REPRESENT THAT ANY DATA, COMMUNICATIONS, PERSONALIZED SETTINGS OR OTHER INFORMATION THAT WE COLLECT, STORE, OR TRANSMIT IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE PLATFORM WILL NEVER BE ERRONEOUSLY DELETED OR MISDELIVERED. YOUR ACCESS TO AND USE OF THE PLATFORM, DOWNLOAD OF ANY SOFTWARE RELATING TO THE PLATFORM AND USE OF ANY INFORMATION WE MAY PROVIDE, OR RESULTS GENERATED, THROUGH OR IN CONNECTION WITH YOUR ACCESS TO OR USE OF THE PLATFORM IS AT YOUR SOLE OPTION, DISCRETION AND RISK.
7.2 Your Liability
(a) YOU AGREE THAT YOU WILL ONLY ACCESS AND USE THE PLATFORM IN ACCORDANCE WITH THE APPLICABLE SERVICE AGREEMENTS. YOU WILL COMPENSATE HONEYGRID IN FULL FOR ANY LOSSES OR COSTS (INCLUDING REASONABLE ATTORNEYS’ FEES) FOR WHICH HONEYGRID (OR ANY OF HONEYGRID’S SUBSIDIARIES OR AFFILIATED COMPANIES) INCUR ARISING FROM ANY BREACH BY YOU OF THE APPLICABLE SERVICE AGREEMENTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HONEYGRID, ITS SUBSIDIARIES AND AFFILIATES, AND ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND OTHER REPRESENTATIVES (THE “RELEASED PARTIES”) HARMLESS FROM AND AGAINST ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEYS’ FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF YOUR ACCESS TO OR USE OF THE PLATFORM, YOUR CONNECTION TO THE PLATFORM, YOUR VIOLATION OF THE APPLICABLE SERVICE AGREEMENTS OR YOUR VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER PERSON OR ENTITY. (b) The Released Parties reserve the right to seek all remedies available at law and in equity for your violation of the applicable Service Agreements, including, without limitation, the right to block access from a particular Internet address to the Platform and report misuses to law enforcement.
7.3 Limitation of Our Liability (a) WITHOUT LIMITING ANYTHING SET FORTH IN THE APPLICABLE HONEYGRID AGREEMENTS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OUR ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO YOUR ACCESS TO AND USE OF THE PLATFORM AND ANY HONEYGRID MATERIALS SHALL BE THE AMOUNT OF $100. (b) IN NO EVENT WILL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR ACCESS TO OR USE OF THE PLATFORM OR ANY HONEYGRID MATERIALS OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR ACCESS TO OR USE OF THE PLATFORM OR ANY HONEYGRID MATERIALS. (c) THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR HONEYGRID WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. (d) SOME STATES OR JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. IN SUCH STATES OR JURISDICTIONS, THE RELEASED PARTIES’ LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8. DISPUTE RESOLUTION
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS.
8.1 Waiver of Rights YOU AGREE THAT BY ACCESSING OR USING THE PLATFORM, YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST THE RELEASED PARTIES ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR COLLECTIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. IF THE FOREGOING CLASS ACTION WAIVER IS DEEMED INVALID OR UNENFORCEABLE, YOU AND HONEYGRID EACH AGREE NOT TO SEEK, AND WAIVE ANY RIGHT, TO ARBITRATE, LITIGATE, OR OTHERWISE RESOLVE ANY DISPUTE THROUGH CLASS OR COLLECTIVE CLAIMS.
8.2 Agreement to Arbitrate.
(a) YOU AND HONEYGRID AGREE THAT, EXCEPT AS PROVIDED IN SECTION 8.2(b) BELOW OR IF YOU OPT OUT OF THIS AGREEMENT TO ARBITRATE IN ACCORDANCE WITH SECTION 8.4 BELOW, ALL CLAIMS AND DISPUTES ARISING FROM OR RELATING IN ANY WAY TO THE SUBJECT MATTER OF THESE END USER TERMS OR YOUR ACCESS TO OR USE OF THE PLATFORM SHALL BE FINALLY SETTLED AND RESOLVED TROUGH BINDING INDIVIDUAL ARBITRATION AS DESCRIBED IN THIS SECTION. (b) NOTWITHSTANDING SECTION 8.2(a), YOU AND HONEYGRID AGREE THAT THE FOLLOWING DISPUTES ARE NOT SUBJECT TO BINDING ARBITRATION: (i) ANY DISPUTES SEEKING TO ENFORCE OR PROTECT, OR CONCERNING THE VALIDITY OF, ANY OF YOUR OR HONEYGRID’S INTELLECTUAL PROPERTY RIGHTS; (ii) ANY DISPUTE RELATED TO, OR ARISING FROM, ALLEGATIONS OF THEFT, PIRACY, INVASION OF PRIVACY, OR UNAUTHORIZED USE; AND (iii) ANY CLAIM FOR INJUNCTIVE RELIEF. IF THIS SECTION IS FOUND TO BE ILLEGAL OR UNENFORCEABLE THEN NEITHER YOU NOR HONEYGRID WILL ELECT TO ARBITRATE ANY DISPUTE FALLING WITHIN THAT PORTION OF THIS SECTION FOUND TO BE ILLEGAL OR UNENFORCEABLE AND SUCH DISPUTE SHALL BE DECIDED BY A COURT OF COMPETENT JURISDICTION WITHIN THE COURTS LISTED FOR JURISDICTION BELOW, AND YOU AND HONEYGRID AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF THAT COURT. (c) THIS AGREEMENT TO ARBITRATE INVOLVES INTERSTATE COMMERCE, AND, THEREFORE, SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. 1-16 (“FAA”), AND NOT BY STATE LAW. (d) THIS AGREEMENT TO ARBITRATE IS INTENDED TO BE INTERPRETED BROADLY PURSUANT TO THE FAA. (e) THE ARBITRATION WILL BE GOVERNED BY THE COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), AS MODIFIED BY THIS SECTION. (f) FOR ANY CLAIM WHERE THE TOTAL AMOUNT OF THE AWARD IS SOUGHT IS $10,000 OR LESS: (i) THE ARBITRATION SHALL BE CONDUCTED SOLELY BASED ON TELEPHONE OR ONLINE APPEARANCES AND/OR WRITTEN SUBMISSIONS; AND (ii) THE ARBITRATION SHALL NOT INVOLVE ANY PERSONAL APPEARANCE BY THE PARTIES OR WITNESSES UNLESS OTHERWISE MUTUALLY AGREED BY THE PARTIES. IF THE CLAIM EXCEEDS $10,000, THE RIGHT TO A HEARING WILL BE DETERMINED BY THE AAA RULES AND THE HEARING (IF ANY) WILL TAKE PLACE IN SALT LAKE CITY, UTAH. (g) THE ARBITRATOR IS BOUND BY THE END USER TERMS OF THIS AGREEMENT TO ARBITRATE. YOU AND HONEYGRID ACKNOWLEDGE AND AGREE THAT, IN ANY ARBITRATION PROCEEDING, NO DEPOSITIONS WILL BE TAKEN AND ALL OTHER FORMS OF DISCOVERY OF FACTS WILL BE LIMITED TO THOSE THINGS THAT THE ARBITRATOR DETERMINES, IN ITS SOLE DISCRETION, TO BE NECESSARY. FURTHER, IN ANY ARBITRATION PROCEEDING: (i) THERE SHALL BE NO PUNITIVE, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL OR OTHER SPECIAL DAMAGES; (ii) ALL DAMAGES, CLAIMS, AND AWARDS WILL BE GOVERNED BY UTAH LAW; (iii) THE PARTIES WILL CONDUCT THE ARBITRATION CONFIDENTIALLY AND EXPEDITIOUSLY AND WILL PAY THEIR OWN COSTS AND EXPENSES OF ARBITRATION, INCLUDING THEIR OWN ATTORNEY FEES. IF YOU PROVE THAT YOU ARE UNABLE TO AFFORD THE AAA FEE, YOU AGREE TO NOTIFY ALL PERSONS AGAINST WHOM YOU HAVE AN ARBITRABLE CLAIM AND GIVE SUCH PERSONS THE OPPORTUNITY, INDIVIDUALLY AND AS A GROUP, TO PAY SUCH FEE. THE PROCEEDING AND THE DECISION SHALL BE KEPT CONFIDENTIAL BY THE PARTIES. (h) THE ARBITRATOR SHALL NOT CONSOLIDATE THE CLAIMS OF MULTIPLE PARTIES. (i) THE ARBITRATOR MAY AWARD DECLARATORY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM. (j) THE ARBITRATOR’S RULING IS BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION OR APPLICATION MAY BE MADE TO SUCH COURT FOR JUDICIAL ACCEPTANCE OF ANY AWARD AND AN ORDER OF ENFORCEMENT, AS THE CASE MAY BE. (k) EXCEPT IN THE EVENT YOU OPT OUT OF THIS AGREEMENT TO ARBITRATE IN ACCORDANCE WITH SECTION 8.4, THIS AGREEMENT TO ARBITRATE WILL SURVIVE TERMINATION OF YOUR ACCESS TO OUR USE OF THE PLATFORM AND YOUR RELATIONSHIP WITH THE RELEASED PARTIES. (l) EXCEPT FOR THE TYPES OF DISPUTES DESCRIBED IN SECTION 8.2(b) ABOVE, ALL OTHER CHALLENGES TO THE VALIDITY AND APPLICABILITY OF THIS AGREEMENT TO ARBITRATE (I.E., WHETHER A PARTICULAR CLAIM OR DISPUTE IS SUBJECT TO ARBITRATION) SHALL BE DETERMINED BY THE ARBITRATOR.
8.3 Information About Arbitration Information on AAA and how to start arbitration can be found at https://adr.org. There is no judge or jury in arbitration. Arbitration procedures are simpler and more limited than rules applicable in court and review by a court is limited. You will not be able to have a court or jury trial or participate in a class action nor class arbitration. YOU UNDERSTAND AND AGREE THAT BY AGREEING TO RESOLVE ANY DISPUTE THROUGH INDIVIDUAL ARBITRATION, YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL AND THAT ANY DISPUTE WILL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND NOT AS A CLASS ACTION, REPRESENTATIVE ACTION, CLASS ARBITRATION, OR SIMILAR PROCEEDING.
8.4 Opt-Out of Agreement to Arbitrate If you wish to opt-out of the agreement to arbitrate, within 45 days of the effective date of these terms or when you first access or use the Platform, whichever is later, you must send us a letter stating: “Request to Opt-Out of Agreement to Arbitrate” to:
HoneyGrid, Inc 6300 Sagewood Dr Suite H359 Park City, UT 84098 United States 8.5 Venue for Litigation If the agreement to arbitrate in Section 8.2 above is found unenforceable or to not apply for a given dispute, or if you opt-out of the agreement to arbitrate in accordance with Section 8.4, then, unless prohibited by applicable law, the proceedings must be brought exclusively in the United States District Court for the District of Utah or the courts of the State of Utah located in Salt Lake County, Utah, as appropriate. You also therefore agree to submit to the personal jurisdiction of each of these courts for the purposes of litigating such claims or disputes and you hereby waive your right to a jury trial, waive your right to initiate or participate in a class or collective action, and agree to remain bound by any and all limitations of liability and damages included in these End User Terms. 8.6 Prevailing Party In any arbitration proceeding or litigation, as applicable, between you and the Released Parties in connection with the End User Terms, your access to or use of the Platform, or your dealings with the Released Parties in connection therewith, the prevailing party will be entitled to receive from the other party, in addition to all other damages to which it may be entitled, the costs incurred by such the prevailing party in conducting such arbitration or litigation, as applicable, including, without limitation, reasonable attorneys’ fees, expenses, and court costs.
9.1 Conflicts In the event of any conflict or inconsistency between the provisions of the Additional Agreement, these End User Terms, and/or the Rules, the governing order of precedence shall be in the priority listed in this sentence.
9.2 Governing Law and Forum These End User Terms will be governed by the laws of the State of Utah without giving effect to any principles of conflicts of laws. Unless prohibited by applicable law, any and all claims or disputes arising from or relating in any way to the subject matter of these End User Terms or your access to or use of the Platform or any HoneyGrid Materials must be brought exclusively in the United States District Court for the District of Utah or the courts of the State of Utah covering Salt Lake County, Utah, as appropriate. You also therefore, unless prohibited by applicable law, agree to submit to the personal jurisdiction of each of these courts for the purpose of litigating such claims or disputes.
9.3 Waiver of Trial by Jury YOU AND HONEYGRID, TO THE EXTENT PERMITTED BY LAW, EACH KNOWINGLY, VOLUNTARILY, UNCONDITIONALLY AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THESE END USER TERMS.
9.4 Waiver and Cumulative Remedies No failure or delay by you or us in exercising any right under these End User Terms shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies you or we have under the applicable HoneyGrid Agreement, at law or in equity.
9.5 Survival. The provisions of these End User Terms which by their nature are intended to survive the termination or cancellation of these End User Terms shall continue as valid and enforceable obligations notwithstanding any such termination or cancellation.
9.6 Severability. If any part of these End User Terms is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, any warranty disclaimers and limitations of liability set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these End User Terms shall continue in effect.
9.7 Electronic Communications. The communications between you and HoneyGrid use electronic means. For contractual purposes, you: (i) consent to receive communications from us in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures and other communications that we provide to you electronically, including, without limitation, the HoneyGrid Agreements, satisfy any legal requirement that such communications would satisfy if they were provided in a hardcopy writing. The foregoing does not affect your non-waivable rights.
9.8 Assignment. We reserve the right to transfer, assign, sublicense or pledge any or all of the HoneyGrid Agreements, in whole or in part, to any person without notice to you, provided that any such assignment will be on the same terms or terms that are no less advantageous to you. You may not assign, sublicense, pledge, or otherwise transfer in any manner whatsoever any of your rights or obligations under the HoneyGrid Agreements.
10. CONTACT US
If you have any questions concerning these End User Terms, please contact us at email@example.com.