ACCEPTANCE OF TERMS AND CONDITIONS
By registering and/or using the Services, you agree to these Terms as well as any other terms, guidelines, policies, procedures or operating rules that apply to any portion of the Services, without limitation or qualification. These Terms apply to all users of the Services, including, without limitation, registered and unregistered users. If you do not agree to these Terms, then you must exit the Services immediately and discontinue any use of the Services or information obtainable or accessible through the Services. 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 by this reference. If you have any questions about the Terms, please contact us at email@example.com.
EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE DISPUTE RESOLUTION SECTION BELOW, these Terms provide that all disputes between you and Goby relating to these Terms or your use of the Services will be resolved by BINDING, INDIVIDUAL ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under these Terms, 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, and your claims cannot be brought as a class action or class-wide arbitration.
No part of the Services is directed to persons under the age of 13. IF YOU ARE UNDER 13 YEARS OF AGE, PLEASE DO NOT USE THE SERVICES AT ANY TIME OR IN ANY MANNER. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. If you are using the Services on behalf of a company, entity, or organization (collectively “Organization”), then you represent and warrant that you (a) are an authorized representative of that Organization; (b) have the authority to bind that Organization to these Terms; and (c) agree to be bound by these Terms on behalf of that Organization.
You represent and warrant that the information you provide to Goby upon creating an account on the Services and at all other times will be true, accurate, current, and complete.
To facilitate future purchases and subscriptions on the Services, you may choose to create an account by providing an e-mail address and password. Please note that you may choose to use the Services and make purchases without creating an account. If you do create an account, your account is personal to you, and you may not share your account information with, or allow access to your account by, any third party. As you will be responsible for all activity that occurs under your access credentials, you agree to use reasonable efforts to prevent unauthorized access to or use of the Services and to preserve the confidentiality of your username and password, and any device that you use to access the Services. You should never publish, distribute or post login information for your Account. You may never use another person’s user account or registration information for the Services without permission. You shall have the ability to delete your Account, either directly or through a request made to one of our employees or affiliates.
You agree to notify us immediately of any breach in secrecy of your log-in information. If you have any reason to believe that your account information has been compromised or that your account has been accessed by a third party, you agree to immediately notify Goby by e-mail to firstname.lastname@example.org. You will be solely responsible for the losses incurred by Goby and others due to any unauthorized use of your account.
For purposes of these Terms, the term “Content” includes, without limitation, information, data, text, photographs, videos, audio clips, written posts and comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services. Content posted through the Services is the property of Goby or its licensors, partners or affiliates and is protected by United States and international copyright laws. You acknowledge that all Content accessed by you 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.
NOTICES AND RESTRICTIONS
The Services may contain Content specifically provided by us or our partners 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.
AVAILABILITY OF 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) remove, edit or modify 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), or for no reason at all and (ii) to remove or block any Content from the Services.
All trademarks, service marks, and trade names (collectively the “Marks”) that appear on this Site are proprietary to Goby, or the other respective owners of such Marks. You may not display or reproduce the Marks in any manner without the prior written consent of Goby, and you may not remove or otherwise modify in any manner any trademark notices from any content offered or received through the Site.
CONTENT YOU SUBMIT TO GOBY
From time to time, Goby may allow you to post reviews, comments, photos, or similar materials on the Site (collectively, “Reviews”). We welcome your comments regarding our Services, including our Site. However, any Reviews you submit to Goby must not harass, slander, malign, libel, defame, threaten, or otherwise violate any rights of any third-parties and must not include any profanity, obscene, indecent, pornographic, defamatory or unlawful material.
By posting a Review on the Services, you hereby grant Goby an unrestricted, assignable, sublicensable, perpetual royalty-free, fully paid up license throughout the world to reproduce, distribute, publicly display, transmit, communicate to the public, publicly perform on a through-to-the-audience basis, create derivative works from, and otherwise use and exploit (collectively, “Use”) all Reviews you post to the Services, for any purpose, including promoting and marketing Goby and its Services. You further grant Goby a royalty-free license to Use the name, image, and likeness of any person identifiable in any Review you post to the Services. By posting a Review, you waive any and all rights of publicity, privacy or any other rights of a similar nature, in addition to any moral rights you may have in your Review. Except for materials provided to you by Goby through the Services, you represent, warrant, and covenant that (i) you either are the sole and exclusive owner of Reviews that you post to the Services, or you have all rights, licenses, consents, and releases that are necessary to grant to Goby the rights in your Reviews as contemplated under the Terms, and (ii) the Reviews you post to the Services do not (A) infringe, misappropriate or violate the rights of any party or entity, including a third party’s patent, copyright, trademark, trade secret, moral rights, rights of publicity, rights of privacy or other intellectual property or proprietary rights, (B) constitute or result in defamation, libel, slander, or the violation of any applicable law or regulation (including, without limitation, restrictions on obscenity, child pornography, wiretap laws or other similar restrictions on nonconsensual recording, or otherwise), or (C) require Goby to obtain any licenses from or make any payments in any amounts to any third party throughout the world.
No Objectionable Content. You agree not to submit Reviews that: (i) are or could be interpreted to be infringing, defamatory, libelous, inaccurate, unlawful, harmful, threatening, abusive, harassing, vulgar, offensive, obscene, pornographic, objectionable, hateful, or promotes discrimination, bigotry, racism, or hatred, as determined by Goby in its sole discretion; or (ii) introduce viruses, time-bombs, worms, cancel bots, Trojan Horses and/or other harmful or malicious code.
Subject to these Terms, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services for personal use only. Consequently, this grant does not allow you to do any of the following: (a) resell or make any commercial use of the Services or any of the Content; (b) modify, adapt, translate, reverse engineer, decompile, disassemble or convert into human readable form any of the Content of the Services not intended to be so read. This includes using or directly viewing the underlying HTML or other code from the Services except as interpreted and displayed in a web browser; (c) copy, imitate, mirror, reproduce, distribute, publish, download, display, perform, post or transmit any Content of the Services (including any Marks) in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording or otherwise; or (d) use any data mining, bots, spiders, crawlers, automated tools or similar data gathering and extraction methods on the Content of the Services or to collect any information from the Services or any other user of the Services. Use, reproduction, modification, distribution or storage of any Content for other than purposes of using the Services is expressly prohibited without prior written permission from us. To inquire about obtaining authorization to use the Content on the Services, please contact us at email@example.com.
PAYMENTS AND BILLING
Paid Services. The price for Products available for purchase through the Services will be displayed to you on the Services. Certain of our Services, including the purchase of any products offered by us, may be subject to payments now or in the future (the “Paid Services”). Please note that any payment terms presented to you in the process of using or signing up for a Paid Service are deemed part of these Terms.
Prices. The prices displayed do not include taxes. Any applicable taxes will be communicated to you before you place an order. There is no charge for standard shipping on subscription orders and on orders with a pre-tax value of $10 or more.
Billing. The Site currently uses a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your Account on the Site (your “Billing Account”) for use of the Paid Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor. We are not responsible for errors by the Payment Processor. By choosing to use Paid Services, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms and you authorize us, through the Payment Processor, to charge your chosen payment provider (your “Payment Method”). You agree to make payments using that selected Payment Method. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
Payment Method. Our third-party Payment Processor accepts payments through various credit cards, including Visa, MasterCard, American Express and Discover, as detailed on the applicable payment screen. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
Recurring Billing. Some of the Paid Services, such as the purchase of auto-replenishing brush heads or other products, may consist of an initial period, for which there is a one-time charge, followed by a recurring period of charges as agreed to by you. You will have the ability to specify how regularly you would like to order any auto-replenishing Products. More information on auto-replenishing Products can be found at our Help/FAQ page www.goby.co/help. By choosing a recurring payment plan, you acknowledge that such Paid Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. All recurring payments are fully earned upon payment. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, GO TO WWW.GOBY.CO.
Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT WWW.GOBY.CO. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
Change in Amount Authorized. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
Auto-Renewal for Subscription Services. Unless you opt out of auto-replenishment, which can be done through your Account Settings www.goby.co/account, any subscription services, such as any auto-replacing products (“Subscription Services”), you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. To change or resign your Subscription Services at any time, go to Account Settings www.goby.co/account. If you terminate a Subscription Service, you may use your subscription until the end of your then-current term; your subscription will not be renewed after your then-current term expires. All fees related to Subscription Services are fully earned upon payment.
Reaffirmation of Authorization. Your non-termination or continued use of a Paid Service (including Subscription Services) reaffirms that we are authorized to charge your Payment Method for that Paid Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Paid Service.
United States Dollars. All monetary transactions on the Site take place in U.S. dollars.
Shipping. When you place an order for Products through the Site, the Products will be shipped to the address you designate as the “Shipping Address” during the check-out process.
Termination. We may terminate your access 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. 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 hereunder are non-refundable. All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
IX. REFUNDS AND RETURNS; CANCELLATION
Warranty. Your Toothbrush is covered by a limited lifetime warranty (the “Limited Toothbrush Warranty”). If there is an issue with your Toothbrush, then please review the Limited Toothbrush Warranty and e-mail us at firstname.lastname@example.org. The Limited Toothbrush Warranty is incorporated by reference into these Terms. To the extent there is a conflict between the terms of the Limited Toothbrush Warranty and these Terms, the terms of the Toothbrush Warranty will govern with respect to Toothbrushes purchased from Goby.
Returns. If you wish to return any of your Products within the first 60 days after your receipt of that particular product, then please follow the process detailed below for each product. Return shipping is free for customers. You may cancel an order anytime prior to shipment. Refunds will be issued in the form of the original payment.
Toothbrush Returns: If you want to return your Toothbrush within the first 60 days after your receipt, please e-mail Goby at email@example.com to arrange a return.
Brush Head Returns: If you want to return your Brush Heads within the first 60 days after your receipt, please e-mail Goby at firstname.lastname@example.org to arrange a return.
The following conditions also apply to returns:
Toothbrushes must be in donatable condition to be eligible for return (e.g., must be in working condition, no stains to the sleeve or breaks to the plastic).
Brush Heads must be unopened and unused to be eligible for a return.
Customers may return a maximum of two (2) of each Toothbrush per initial order, validated by a customer name or shipping address (i.e., please try a Toothbrush first—we are happy to send you more later!)
If at least one Toothbrush is returned from an initial order, that customer or shipping address will not be eligible for additional 60-day trials on subsequent orders of Toothbrushes.
Title. Risk of loss and title for products purchased from Goby pass to you upon delivery of such products (by Goby or our manufacturer) to the carrier. You are responsible for filing any claims with carriers for damaged or lost shipments.
If you are dissatisfied or believe there is a defect in any of your products after the first 60 days, please review the relevant warranty and, if you believe that you are entitled to take advantage of those terms, please contact us at email@example.com.
GIFT AND OFFER CODES; REFERRAL PROGRAM
From time to time, Goby may offer qualified consumers “gift codes” or “offer codes” through a variety of promotional activities and communications (collectively referred to herein as “offer codes”) that are redeemable towards a purchase on www.goby.co, while supplies last, and subject to certain merchandise exclusions or any other restrictions as may be determined and communicated by Goby in its sole discretion. Only valid offer codes provided or promoted by Goby will be honored at checkout. Codes supplied or promoted by third parties unauthorized by Goby (including any unauthorized third party websites) will not be considered valid. Each offer code promoted by Goby is non-transferable and valid for single use on an item (or items) of merchandise as determined by Goby. Offer codes may not be combined and may not be used in conjunction with the Goby Referral Program–customers are limited to the use of a single offer code per order. Offer codes cannot be used towards purchase of non-branded merchandise, packaging or applicable taxes. For online purchases, the code must be entered in the ‘promo code’ field at checkout. Goby is not responsible for lost, stolen or corrupted codes or any unauthorized use of codes. Offer codes cannot be redeemed for cash or any cash equivalent; no substitutions or credits allowed. The dollar value of any offer code will not be refunded or credited back if any or all of the merchandise is returned. Expiry dates may apply to each offer code. Offer codes are void if copied, transferred, sold, exchanged or expired, and where prohibited. Requests not complying with all offer code requirements will not be honored.
Spokespeople. From time to time, Goby may also engage spokespeople, influencers, bloggers, or other individuals or entities who have been compensated or incentivized to speak on behalf of the brand. When you receive an offer code via a third party source, such as an Instagram influencer, please note that such individuals may have been compensated by Goby for their statements.
Referral Program. Goby offers brand advocates the opportunity to refer friends to participate in the Goby Referral Program. Offer codes may not be used in conjunction with the Goby Referral Program.
We appreciate hearing from our users and welcome your comments regarding the Site. Please be advised, however, that if you send us creative ideas, suggestions, inventions, or materials (“Creative Ideas”), we will (a) own, exclusively, all now known or later discovered rights to the Creative Ideas; (b) not be subject to any obligation of confidentiality and will not be liable for any use or disclosure of any Creative Ideas; and (c) be entitled to unrestricted use of the Creative Ideas for any purpose whatsoever, commercial or otherwise, without compensation to you or any other person.
USE OF THE SERVICES
You agree to use the Services only for their intended purpose. You must use the Services in compliance with all privacy, data protection, intellectual property, and other applicable laws. The following uses of the Services are prohibited. You may not:
attempt to interfere with, harm, reverse engineer, steal from, or gain unauthorized access to the Services, user accounts, or the technology and equipment supporting the Services;
frame or link to the Services without permission;
use data mining, robots, or other data gathering devices on or through the Services;
post incomplete, false, or misleading information, impersonate another person, or misrepresent your affiliation with a person or entity;
disclose personal information about another person or harass, abuse, or post objectionable material;
sell, transfer, or assign any of your rights to use the Services to a third party without our express written consent;
post advertising or marketing links or content, except as specifically allowed by these Terms;
use the Services in an illegal way or to commit an illegal act in relation to the Services or that otherwise results in fines, penalties, and other liability to Goby or others; or
access the Services from a jurisdiction where it is illegal or unauthorized.
We do not represent or guarantee the truthfulness, accuracy, or reliability of content, posted by third parties. You accept that any reliance on material posted by third-party service providers will be at your own risk. By using the Services you accept the risk that you might be exposed to content that is objectionable or otherwise inappropriate. We may change, suspend, or discontinue any aspect of the Services at any time, including hours of operation or availability of the Services or any other feature, without notice or liability.
User Disputes. We are not responsible for any disputes or disagreements between you and any third party you interact with using the Services. You assume all risk associated with dealing with third parties. You agree to resolve disputes directly with the other party. To the fullest extent permitted by law, you release Goby of all claims, demands, and damages in disputes among users of the Services. You also agree not to involve us in such disputes. Use caution and common sense when using the Services.
Content Accuracy. We make no representations about accuracy, reliability, completeness, or timeliness of any contents of the Services. Similarly, we make no representations about accuracy, reliability, completeness, or timeliness of any data from a third-party service provider or the quality or nature of third-party products or services obtained through the Services. Use the Services at your own risk.
We make no promises and, to the fullest extent permitted by law, disclaim all liability of specific results from the use of the Services.
Released Parties Defined. “Released Parties” include Goby and its affiliates, officers, employees, agents, partners, and licensors.
EXCEPT AS EXPRESSLY PROVIDED IN THE TOOTHBRUSH WARRANTY FOR PURCHASED PRODUCTS, YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW: (A) YOUR USE OF THE SERVICES AND PRODUCTS IS AT YOUR SOLE RISK, AND THE SERVICES AND PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THE RELEASED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO PRODUCTS OR SERVICES LISTED ON THE SERVICES, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (B) THE RELEASED PARTIES MAKE NO WARRANTY THAT (i) THE SERVICES WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY GOODS OR SERVICE AVAILABLE ON THE SERVICES WILL MEET YOUR EXPECTATIONS, OR (v) ANY ERRORS IN THE SERVICES WILL BE CORRECTED; AND (C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE THAT RESULTS FROM THE USE OF ANY SUCH MATERIAL.
LIMITATION ON LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RELEASED PARTIES WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF GOBY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SITE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, FROM, OR AS A RESULT OF THE SITE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY USER OR THIRD PARTY ON THE SITE; (v) YOUR RELIANCE ON CONTENT MADE AVAILABLE BY US; OR (vi) ANY OTHER MATTER RELATING TO THE SITE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE RELEASED PARTIES’ MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SITE OR YOUR USE OF GOBY CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED $100.
Generally. In the interest of resolving disputes between you and Goby in the most expedient and cost effective manner, you and Goby agree that any dispute arising out of or in any way related to these Terms or your use of the Services 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 in any way related to these Terms or your use of the Site or Services, 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 GOBY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Exceptions. Despite the provisions of the Section entitled “Generally” directly above, 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; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Arbitrator. Any arbitration between you and Goby will be governed by the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. 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 Goby. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail or electronic mail (“Notice”). Goby’s address for Notice is: 35 East Broadway Suite 4A New York, NY 10002 or firstname.lastname@example.org. The Notice 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 is received, you or Goby may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Goby must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Goby will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Goby in settlement of the dispute prior to the arbitrator’s award; or (iii) $500.
Fees. If you commence arbitration in accordance with these Terms, Goby will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, 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 New York, New York, but if the claim is for $15,000 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 Goby 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.
No Class Actions. YOU AND GOBY 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 Goby 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.
Modifications to this Arbitration Provision. If Goby makes any future change to this arbitration provision, other than a change to Goby’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Goby’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Goby.
Enforceability. If the Section entitled “No Class Actions” is found to be unenforceable or if the entirety of this Section XVII is found to be unenforceable, then the entirety of this Section XVII will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described directly below will govern any action arising out of or related to these Terms or your use of the Site or Products.
Choice of Law; Venue. These Terms will be governed and construed in accordance with the laws of the State of New York, excluding its conflicts of law rules. If a lawsuit or court proceeding is permitted under these Terms, then you and Goby agree to submit to the personal and exclusive jurisdiction and venue of the state and federal courts located within New York, New York.
Notwithstanding any of these Terms, we reserve the right, without notice or attendant liability, and in our sole discretion, to terminate your license to use the Services, and to block or prevent future access to and use of the Services for any reason or no reason. Upon termination, these Terms will still apply.
From time to time we review these Terms to ensure that they comply with applicable law. Consequently, we reserve the right to update and revise these Terms at any time. You will know if these Terms have been revised since your last visit to the website by referring to the “Effective Date of Current Policy” date at the top of this page; provided, however, that we will endeavor to provide you with prior notice of any material changes that will apply to you. Your use of our website constitutes your acceptance of these Terms.
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.
These Terms are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent.
No agency, partnership, joint venture, or employment relationship is created as a result of these Terms and neither party has any authority of any kind to bind the other in any respect.
Unless otherwise specified in these Terms, all notices under these Terms 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 facsimile or 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 email@example.com.
Either party’s failure to partially or fully exercise any rights or waiver of any breach of these Terms by the other party shall not prevent such party’s subsequent exercise of such right or be deemed a waiver by such party of any subsequent breach by the other party of the same or any other term of these Terms. In order for any waiver of compliance with these Terms to be binding, either party must provide the other with written notice of such waiver through one of their authorized representatives.
If any of these Terms are deemed invalid, void, or for any reason unenforceable, that term will be severed and will not affect the validity and enforceability of any remaining term or condition. NOTHING IN THESE TERMS WILL AFFECT ANY NON-NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.
These Terms (including any document or terms expressly incorporated into these Terms) constitute the entire agreement between the user and Goby with respect to the Services and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written with respect to the Services. A printed version of these Terms and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Any rights not expressly granted herein are reserved.