Last revised on: May 3, 2017
Welcome to Tinybop. We are a studio of designers, developers and artists building a suite of educational applications for kids – what we call the toys for tomorrow. We operate the website located at http://tinybop.com (which we call the Site) and mobile, tablet, and web applications designed to encourage a child’s exploration and creativity through immersive games (which we call Applications or Apps, and collectively with the Site and all services provided through the Site and Applications, the Services). Certain features of the Services may be subject to additional guidelines, terms, or rules, which will be posted in the terms in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into this agreement.
A NOTE ABOUT CHILDREN: WE DO NOT COLLECT ANY PERSONAL INFORMATION ABOUT CHILDREN.
BY ACCESSING OR USING THE SERVICES, YOU ACCEPT THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT) AND YOU CONFIRM THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SERVICES.
The Applications may allow an adult to create a parent’s account which we call a Dashboard that allows the parent or other adult to manage settings in the Application. An Application may allow your child or children to create accounts. Different accounts allow each child to save their own progress in each Application. When creating accounts for you or your child, you can use real names or aliases, as you think appropriate. All such information remains on the Application and is not transmitted or made available to us, unless you make such information available to us, for example, as part of our support services (see Section 6 below). If you create a parent account, you may be required to provide a username and password (which we call Credentials), which you may not share with anyone else, including your child. If someone accesses your Account using your Credentials, we (or the programming within the Application) will rely on those Credentials and will assume that it is really you who is accessing the parent account. You are solely responsible for any and all use of your Credentials and all activities that occur in connection with your Credentials. You may delete any account in accordance with the directions provided in the Applications or on the Site.
2. LICENSES; OUR TECHNOLOGY; RESTRICTIONS ON USE.
Right to Use Site. Tinybop grants you and any child you authorize a non-transferable, non-exclusive, right to access the Site and use the Services for your personal and non-professional use, subject at all times to the terms of this Agreement. As part of your use of the Site you may be able to download user guides or other information that will assist you and your child in using the Applications. Any such downloadable guides and information are our “Content” as defined below and are governed by this Agreement and any additional restrictions, if any, that are made known to you at the time of download or within the guide or information itself.
License to Use Application. Tinybop grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to use, and to authorize your child to use, the Services made available through the Application and to download, install and use a copy of the Application on a single mobile device or computer that you own or control solely for your personal and non-professional use, subject at all times to the terms of this Agreement. Furthermore, with respect to any Application accessed through or downloaded from the App Store (an App Store Sourced Application), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system) and (ii) as permitted by the Usage Rules set forth in the App Store Terms of Service. With respect to any Application accessed through or downloaded from the Google Play Store (a Google Play Store Sourced Application), you will only use the Google Play Store Sourced Application (i) on an Android product that runs Google’s proprietary operating system) and (ii) as permitted by the Usage Rules set forth in the Google Play Store Terms of Service.Use of the Application is also subject to the provisions of Section 6(b). You are responsible for the acts and omissions of your child and any breach of this Agreement by your child will be deemed a breach of this Agreement by you.
Our Technology and Content. You agree that the software, code, proprietary methods and systems used to provide the Services (our Technology) and the materials, information and content made available or displayed by us on the Site or through the Services, including all text, graphics, images and the look and feel (collectively, our Content) are: (i) copyrighted by us, our licensors and/or other licensors under United States and international copyright laws; (ii) subject to other intellectual property and proprietary rights and laws; and (iii) owned by us or our licensors. Tinybop and the stylized Tinybop trademark and other related graphics, logos, service marks and trade names used on or in connection with the Services are our trademarks (“our Marks”) and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners. Except for the limited licenses provided herein, we reserve all right, title and interest in our Content, Marks and Technology.
User Restrictions on Intellectual Property. The rights and licenses granted to you in this Agreement are subject to the following, you will: (i) not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise exploit the Services, including the Content, except as expressly authorized in this Agreement, (ii) not modify, disassemble, decompile, or reverse engineer any part of the Services, including the Content; (iii) not access the Services in order to build a similar or competitive website, application or service; (iv) not copy, reproduce, distribute, republish, download, display, post or transmit in any form or by any means any part of the Services, including the Content; and (v) not remove or destroy any copyright notices or other proprietary markings contained on or in the Services or the Content. Any future release, update or other addition to the Services will be subject to this Agreement.
Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to us, including through any suggestion or feedback pages (Feedback) is at your own risk and that we have no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to us a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights without restriction and in all media now known and later developed.
3. USER CONTENT.
“User Content” means any and all information and content that you or your child incorporates into an Application, including through the Dashboard. You are solely responsible for your User Content and for creating backup copies of your User Content if you desire.
4. ACCEPTABLE USE POLICY.
As we teach our own children, we believe that you should do unto others as you would have others do unto you and with that in mind, we’ve established this Acceptable Use Policy. Please respect it. We say “please” to be polite (and to do unto others … ), but please means that you must comply with these policies. Accordingly, you agree not to:
harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their and our consent;
interfere with, disrupt, or create an undue burden on servers or networks connected to the Services or violate the regulations, policies or procedures of such networks;
attempt to gain unauthorized access to the Services, other computer systems or networks connected to or used together with the Services, through password mining or other means;
harass or interfere with another user’s use and enjoyment of the Services;
introduce software or automated agents or scripts to the Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials);
harass, defame, libel, defraud, threaten, infringe the privacy of, or tortuously injure the Site’s users and customers;
upload, transmit, display or distribute any offensive, discriminatory, obscene, vulgar, patently offensive, harmful or pornographic content, or any content that is otherwise objectionable;
infringe on our Intellectual Property Rights (“IP Rights”) or the IP Rights of third parties, which may encompass copyright, patent, trademark, trade secret, or other proprietary rights;
interfere with our ability to provide Services to our users and subscribers;
upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
systematically retrieve data or other content from our Services to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, spiders, or otherwise;
use, display, mirror or frame the Services, or any individual element within the Services, including our arks or other proprietary information, or the layout and design of any page or form contained on a page, without our express written consent, and
use any unauthorized software that accesses, intercepts, “mines” or otherwise collects information from or through the Services or that is in transit from or to the Services, including, but not limited to, any software that reads areas of RAM or streams of network traffic used by the Services.
5. THIRD-PARTY SERVICES.
Third-Party Websites. The Site and the Applications may contain links to third-party websites (“Third-Party Websites”) and the Site may contain links for third party products and services. When you click on a link to a Third-Party Website, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. The Third-Party Websites are not under the control of Tinybop. Tinybop is not responsible for any Third-Party Websites. We provide these Third-Party Websites only as a convenience and do not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, or their products or services. You use all links in Third-Party Websites at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
When you download our Applications, you may do so through Apple Corporation’s App Store, a third party. You acknowledge that this Agreement is between you and us and not the App Store. As between the App Store and us, we, not the App Store, are solely responsible for the Services, including the Application, the content, maintenance, support services, and warranty, and addressing any claims relating (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Services, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce them. The following applies to any Application accessed through or downloaded from the App Store (App Store Sourced Application):
(i) You acknowledge and agree that (A) the Terms are concluded between you and Tinybop only, and not Apple, and (ii) as between Tinybop and Apple, Tinybop, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(ii) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(iii) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Tinybop and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Tinybop.
(iv) You and we acknowledge that, as between Tinybop and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(v) You and we acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Tinybop and Apple, Tinybop, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
(vi) You and we acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(vii) Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
Google Play Store
When you download our Applications, you may do so through Google’s Play Store, a third party. You acknowledge that this Agreement is between you and us and not the Google Play Store. As between the Google Play Store and us, we, not the Google Play Store, are solely responsible for the Services, including the Application, the content, maintenance, support services, and warranty, and addressing any claims relating (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the Google Play Store in connection with the Services, including the Application. You acknowledge that the Google Play Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce them. The following applies to any Application accessed through or downloaded from the Google Play Store (which we call a Google Play Store Sourced Application):
(i) You acknowledge and agree that (A) the Terms are concluded between you and Tinybop only, and not Google, and (ii) as between Tinybop and Google, Tinybop, not Google, is solely responsible for the Google Play Store Sourced Application and content thereof. Your use of the Google Play Store Sourced Application must comply with the Google Play Store Terms of Service.
(ii) You acknowledge that Google has no obligation whatsoever to furnish any maintenance and support services with respect to the Google Play Store Sourced Application.
(iii) In the event of any failure of the Google Play Store Sourced Application to conform to any applicable warranty, you may notify Google, and Google will refund the purchase price for the Google Play Store Sourced Application to you and to the maximum extent permitted by applicable law, Google will have no other warranty obligation whatsoever with respect to the Google Play Store Sourced Application. As between Tinybop and Google, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Tinybop.
(iv) You and we acknowledge that, as between Tinybop and Google, Google is not responsible for addressing any claims you have or any claims of any third party relating to the Google Play Store Sourced Application or your possession and use of the Google Play Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Google Play Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(v) You and we acknowledge that, in the event of any third-party claim that the Google Play Store Sourced Application or your possession and use of that Google Play Store Sourced Application infringes that third party’s intellectual property rights, as between Tinybop and Google, Tinybop, not Google, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
(vi) You and we acknowledge and agree that Google, and Google’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the Google Play Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Google will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the Google Play Store Sourced Application against you as a third-party beneficiary thereof.
(vii) Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the Google Play Store Sourced Application.
6. TECHNICAL SUPPORT.
If you are having a technical problem with the Services, including any Application, you may ask for technical support by writing to firstname.lastname@example.org. When writing to us, please be sure to tell us which app you’re using, where in the Application it crashed, and the device you’re using. We’ll do our best to help you solve any technical problem, but we don’t warrant, and specifically disclaim, that we will be able to resolve all technical issues.
You agree to indemnify and hold Tinybop (and our officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand due to or arising out of (a) your use of the Services, (b) your Content, (c) your violation of this Agreement; or (d) your violation of applicable laws or regulations. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
THE SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND WE (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE OR SERVICES: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
9. LIMITATION ON LIABILITY.
IN NO EVENT WILL WE (AND OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) ONE HUNDRED US DOLLARS ($100) OR (B) AMOUNTS YOU’VE PAID TINYBOP UNDER THIS AGREEMENT IN THE 12 MONTHS PERIOD IMMEDIATELY PRECEDING THE DAY THE CLAIM AROSE (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other Service users or Third Party Sites & Advertisements. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
11. TERM AND TERMINATION.
Subject to this Section, this Agreement will remain in full force and effect while you use the Services. We may (a) suspend your rights to use the Services (including your Tinybop Account) or (b) terminate this Agreement, at any time for any reason at our sole discretion, including for any use of the Services in violation of this Agreement. Upon termination of this Agreement, your Tinybop Account and right to access and use the Site and Services will terminate immediately. You understand that any termination of your Tinybop Account may involve deletion of your Content associated from our live databases. Tinybop will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your Tinybop Account or deletion of your Content. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 2(c) through 2(e) and 3 – 17.
12. COPYRIGHT POLICY.
We respect the intellectual property of others and ask that users of our Services do the same. In connection with our Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
a. your physical or electronic signature;
b. identification of the copyrighted work(s) that you claim to have been infringed;
c. identification of the material on our services that you claim is infringing and that you request us to remove;
d. sufficient information to permit us to locate such material;
e. your address, telephone number, and e-mail address;
f. a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
g. a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
The designated Copyright Agent for Tinybop is:
540 Atlantic Avenue
Brooklyn, NY 11217
14. ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE.
a. Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and us or our employees, agents, successors, or assigns, will exclusively be settled through binding and confidential arbitration.
b. Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
c. You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights 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. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
d. You and Tinybop must abide by the following rules: (a) ANY CLAIMS BROUGHT BY YOU OR US MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (b) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF, (c) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (d) we also reserve the right in our sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (e) the arbitrator will honor claims of privilege and privacy recognized at law; (f) the arbitration will be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (g) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (h) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses, and then in such instance, the fees and costs awarded will be determined by the applicable law.
e. Notwithstanding the foregoing, either You or we may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret will not be subject to this arbitration agreement. Such claims will be exclusively brought in the state or federal courts located in Brooklyn, New York. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Brooklyn, New York in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Brooklyn, New York for such purpose. A request for interim measures will not be deemed a waiver of the right to arbitrate.
f. With the exception of subparts (a) and (b) in the paragraph above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subpart (a) or (b) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision will be null and void, and neither You nor we will be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute will be exclusively brought in state or federal court in Brooklyn, New York.
g. For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
15. INTERNATIONAL USERS.
The Services can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that we intend to announce such Services or Content in your country. The Services are controlled and offered by us from our facilities in the United States of America. We make no representations that Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are responsible for compliance with local law.
(b) Choice Of Law. The Agreement is made under and will be governed by and construed in accordance with the laws of the State of New York, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.
(c) Entire Agreement. This Agreement constitutes the entire agreement between you and us regarding the use of the Services. Our failure to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word including means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to us is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without our prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement will be binding upon assignees.
(d) Copyright/Trademark Information. Copyright © 2014, Tinybop, Inc.. All rights reserved. All trademarks, logos and service marks displayed on the Site are our property or the property of other third parties. You are not permitted to use such trademarks, logos and service marks without our prior written consent or the consent of such third party which may own the Marks.
540 Atlantic Avenue
Brooklyn, NY 11217