感谢您使用Temr！本使用条款（“条款”）包含您使用我们的应用程序、产品、服务和网站（“服务”）的规则和限制。本条款构成您与我们之间具有约束力的协议。完成注册流程和/或浏览服务，即表示您已接受：(1) 您已阅读、理解并同意受本条款约束；(2) 您已达到法定年龄，并有能力与我们签订具有约束力的合同；(3) 您有权亲自签署本条款；以及 (4) 如果您代表公司或其他实体使用服务，则：(a) 您同意“您”包括您和该实体；(b) 您是该实体的授权代表，有权代表该实体签署本条款；以及 (c) 您代表该实体同意本条款。除非您同意受所有这些条款的约束，否则您不应访问或使用服务。
1. 概述
1.1 本条款是您与中国公司重庆吉尼迪斯科技有限公司之间的协议。
1.2 在本条款和政策（定义见下文）中，重庆吉尼迪斯科技有限公司和其关联公司统称为“我们”。我们的网站和APP（提供功能、产品、服务或内容，包括信息交流）称为 “Temr” 或“我们的APP”; 以及最终用户，包括 Temr 的访问者和使用 Temr 购买产品的用户，统称为“您”。
1.3 我们和我们的关联公司为我们的应用程序提供技术和运营支持。您可以在 Temr 上一次性支付多个订单。多个订单可能会合并在一个包裹中交付。
1.4 对您使用和参与本服务还受我们可能不时发布的其他政策约束，包括隐私政策 和 Cookie 及类似技术政策（描述我们如何处理您的个人数据）（“政策”）。如果本条款与政策不一致，以政策为准。
1.5 下文第 19 条包含关于您与我们之间争议解决方式的规定，包括但不限于在本条款生效日期之前产生或提出的任何争议。第 19 条除其他事项外，还包含一项仲裁协议，该协议要求（除少数例外情况外），您与我们之间的所有争议均应通过具有约束力的最终仲裁解决。除非您在协议生效日期后 30 天内选择退出仲裁协议：(1) 您和我们仅被允许以个人身份对另一方提起争议或索赔并寻求协助，而不能作为任何集体诉讼或代表诉讼或程序中的原告或集体成员，并且我们双方均放弃参与集体诉讼或集体仲裁的权利；(2) 我们双方均放弃在法院提起争议或索赔并寻求帮助以及进行开庭审判的权利。在某些国家/地区，您可能享有其他权利，并且/或者仲裁协议中的某些条款可能因法律规定而不适用于您。
1.6 我们可随时自行决定更改这些条款。如有更改，我们将在 Temr 上发布更新后的条款和/或政策，并更新页面顶部的“最后更新日期”或“生效日期”。我们建议您定期查看条款和政策的最新版本。我们可能会通过电子邮件或其他渠道通知您此类更改。除非此类更新另有说明，否则对条款的任何更改将立即对服务用户生效。如果您不同意任何更改，应立即停止使用服务。否则，您同意在更改生效后继续使用服务即构成您接受此类更改。请定期查看网站或应用程序以了解最新条款。
2. 用户注册须知
2.1 使用本服务，表示您已年满十八 (18) 周岁，且达到订立具有法律约束力合同的法定年龄。未满 18 周岁的儿童或根据适用国家/地区法律认定的未成年人不得使用 Temr 或本服务。Temr 上可能销售儿童用品，但这些产品仅供成人购买。某些产品也可能仅面向特定年龄段或“成熟受众”。订购此类产品，即表示您确认您已达到查看、使用、拥有或接收此类产品的法定年龄。对于您可能认为冒犯、不雅或令人反感的第三方内容，我们概不负责。
2.2 如果您符合以下任何一项条件，则不得使用本服务：(a) 您无法与我们订立具有约束力的合同；(b) 您位于禁运的国家或地区；(c) 您在居住国机构的禁止人员或实体名单上；(d) 我们决定禁止您使用本服务。
2.3 要访问或使用我们的某些服务，您可能需要在 Temr 上创建帐户。在 Temr 上创建帐户（“帐户”）时，您同意提供真实、准确、完整且最新的个人信息，包括联系方式。您有责任确保您的注册信息始终保持最新。您对您帐户下发生的所有活动负责。您同意监控您的帐户，以限制未成年人使用，并对未成年人未经授权使用服务承担全部责任。您不得选择您无权使用的名称作为用户名，也不得选择他人的姓名意图冒充他人。未经我们事先书面许可，您不得将您的帐户转让给任何其他人。如果您已被永久禁止使用任何服务，您同意不创建帐户或使用服务。您不得与任何人共享您的帐户或密码，并且您同意在发现任何未经授权使用您的密码或任何其他安全漏洞时立即通知我们，并在每次会话结束时退出您的帐户。
2.4 您也可以通过社交网络服务（“SNS”）帐户及其凭证（“SNS帐户”）注册帐户，此操作须经 Temr 许可。如果您通过SNS访问服务，作为服务功能的一部分，您可以允许我们访问您SNS帐户的有限信息，从而将您的帐户与SNS帐户关联，用于本文所述目的以及我们的隐私政策中所述的目的，并遵守适用于您SNS帐户的条款和条件（“SNS内容”）。您有权授予我们访问您SNS帐户的权限，以便我们使用服务，且不会违反您SNS帐户的任何条款和条件，也不会使我们承担任何费用或受到该SNS施加的任何使用限制。如果SNS帐户或相关服务不可用，或者我们对该SNS帐户的访问权限被SNS终止，则SNS内容将不再通过服务提供。您可以随时通过访问 Temr 应用程序的“设置”部分或 Temr 网站的“订单与账户”部分，禁用您的账户与社交网络服务（SNS）账户之间的连接。请注意，您与SNS账户关联的SNS服务提供商之间的关系完全受您与SNS服务提供商之间的协议约束，对于这些SNS服务提供商违反您在这些SNS账户中设置的隐私设置而向我们提供的个人信息，我们概不承担任何责任。我们不会出于任何目的审核任何SNS内容，包括但不限于其准确性、合法性或是否侵权，我们对任何SNS内容概不负责。
3. 规则与限制
3.1 您同意仅为自身用途使用本服务，不得代表任何第三方或为任何第三方的利益使用本服务，且仅以符合本条款、政策以及所有适用于您的法律法规的方式使用本服务。如果任何适用法律禁止您使用本服务，则您无权使用本服务。对于任何违反适用法律的服务使用行为，我们概不负责。
3.2 您须对与您的账户相关的所有活动负责。因此，您必须保护您的账户和密码安全，不得与任何第三方共享。如发现任何未经授权使用或账户安全漏洞，您必须立即通知我们。
3.3 您不得创建多个账户。
3.4 在适用法律允许的范围内，通过本服务提供的任何抽奖、竞赛、抽签、调查、游戏或类似促销活动（统称“促销活动”）均可能受单独规则的约束。如果促销活动的规则与本条款相冲突，则以促销活动的规则为准。
3.5 使用本服务时，不得违反下列行为或内容：
(1) 侵犯或违反他人的权利，包括知识产权；
(2) 违反本条款、政策或适用法律法规中的任何规定；
(3) 从事任何非法、有害、辱骂、误导、虚假、欺诈、欺骗、威胁、骚扰、诽谤、中伤、色情、淫秽、亵渎或其他令人反感或歧视性的行为；
(4) 规避或试图规避本条款、政策或与服务（包括促销活动）相关的其他规则；
(5) 发送未经授权或未经审批的广告，或垃圾邮件或群发邮件；
(6) 收集其他用户的个人数据或使用从服务中收集的任何此类信息；
(7) 从事任何可能导致您的账户安全受到威胁的行为；
(8) 获取其他用户的密码、帐户或其他安全信息；
(9) 使用第三方服务，隐藏您的真实 IP 地址，或以其他方式冒充他人或更改您的身份或您与任何个人或实体的关系；
(10) 违反或干扰任何计算机网络的正常运行或安全；
(11) 在服务上运行任何形式的自动回复或“垃圾邮件”，在您未登录服务时运行或激活的任何进程，或以其他方式干扰服务正常运行的任何进程（包括通过超载、 “洪水”、“邮件轰炸”或服务崩溃给服务的基础设施带来不合理的负载）；
(12) 可能损害服务，包括但不限于违反服务的任何安全功能，使用手动或自动软件或其他方式访问、“爬行”、“抓取”或“蜘蛛”任何页面、数据或服务的一部分或与 之相关的部分，或将病毒、蠕虫或类似的有害代码引入服务；
(13) 未经我们书面同意，复制或存储服务内容的任何重要部分；
(14) 反编译、逆向工程或以其他方式获取服务的源代码；
(15) 购买任何法律不允许您购买或使用的产品；
(16) 滥用我们提供的任何促销、折扣或其他福利，或操纵任何上市产品的价格或干扰上市；
(17) 试图做任何本清单中禁止的事情，或允许、鼓励、协助或放任任何第三方做任何本清单中禁止的事情。
除了我们可用的任何其他补救措施外，违反上述任何一项都是以下行为的理由：
(1) 我们自行决定以任何理由或无理由删除、限制或拒绝发布任何用户提交的内容；
(2) 取消或限制您购买产品；
(3) 取消或限制我们应支付的奖励或款项；
(4) 暂停、终止或以其他方式限制您访问或使用服务。
如果我们发现您可能违反本条款，我们保留调查此类违规行为的权利。如果经过调查，我们认为发生了犯罪活动，我们保留将此事提交给任何和所有适用的法律机构并与之合作的权利。除非适用法律禁止，否则我们有权披露我们拥有的与您使用服务有关的任何信息或材料，包括用户提交的内容，如果我们合理地认为此类披露是必要或适当的（1） 遵守适用法律、法律程序或政府要求,（2）执行条款和政策,（3）回应用户提交内容侵犯第三方权利的任何索赔，（4）回应您的客户服务请求，（5）保护我们、用户或公众以及所有执法人员或其他政府官员的权利、财产或人身安全,（6）隐私政策另有规定。
4. 隐私
4.1 我们的隐私政策提供了有关我们如何在您访问、访问或使用服务时收集、使用和披露您的个人信息的信息。在您使用服务时，您承认并同意，我们可能会按照我们的隐私政策和 Cookie 及类似技术政策的规定收集、访问、使用、保存和披露您的个人信息（包括您的帐户和用户信息）。隐私政策是这些条款的一部分并受其管辖，同意这些条款即表示您同意受隐私政策和 Cookie 及类似技术政策的约束。
5. 通信
5.1 您可能会收到以电子方式发送的信息，如电子邮件、短信、移动推送通知以及服务上或通过服务发送的通知和消息（“推送消息”），在法律允许的情况下，我们将许可您发送此类推送消息。当您使用该应用程序时，您的网络服务提供商可能会向您收取数据、短信和/或其他访问费用，包括与推送消息相关的费用。请与您的服务提供商联系，以确定您访问和使用服务的费用，包括您收到我们的推送消息。您全权负责在移动设备上下载、安装和使用服务所产生的任何费用，包括您收到推送消息的费用。我们以电子方式或其它方式向您提供的所有条款和条件、协议、通知、披露具有与“书面”相同的法律效力。
5.2 我们有权通过您提供的电子邮件或电话号码与您联系，用于：（1）通知您账户相关事宜；（2）解决账户问题；（3）处理纠纷；（4）追讨欠款；（5）通过调查问卷收集您的意见；（6）告知订单、支付及配送更新情况；（7）发送认证短信（包括一次性密码）。您自行承担接收短信所产生的通信费用。
5.3 如您需要短信接收我们的营销资料，您可进行注册订阅。注册即表示您认可我们向您提供的手机号发送促销信息。短信发送频率不一，对运营商延迟或未送达信息不承担责任，不承担费用。如需取消接收我们的短信，可按照短信中的指引操作。
5.4 若您希望停止接收营销邮件，可直接点击邮件中的退订选项，即可停止。
5.5 我们与您的通信可能是通过第三方服务提供商进行的。为了保护双方的利益，根据我们的隐私政策，您与我们的通信可能会被记录、监控和存储，用于质量控制和培训。
6. 用户发布
6.1 “用户发布”指您通过本服务发布、上传、分享的或以其他方式提供的任何内容，包括能被其它用户看到的建议、评论、评价、评分、照片、视频、其他反馈或材料，或视频内容。账户中发布的任何内容不得包含裸露、暴力、性暗示或冒犯性主题内容。
6.2 对于所有用户提交的内容，我们有权在全球范围内使用、许可、存储、展示、复制、保存、修改（例如确保用户提交内容可在不同系统和设备上正常浏览）、创作衍生作品、公开表演、公开展示、分发、翻译或以其他方式处理用户提交的内容，以满足运营、推广和宣传服务的需要，包括根据您的偏好展示或推送用户提交的内容，始终遵守数据保护法及其他相关法律。
6.3 You acknowledge and agree that all User Submissions (including the username under which you made them) are non-confidential and non-proprietary, and that we may freely display, disclose, reproduce, modify, license, transfer, distribute and otherwise use the User Submissions in any manner, without any restriction or compensation to you.
6.4 You warrant that you own or otherwise control all rights to the User Submissions and that our use of any User Submission will not infringe upon or violate the rights of any third party or violate any of the rules and restrictions contained in these Terms (including those included in Section 3 herein).
6.5 We do not endorse User Submissions, and they do not represent our views. We expressly disclaim any liability for User Submissions or damages resulting from them. We expect users to maintain a high level of integrity when submitting User Submissions that are viewable by other users, especially with respect to ratings and reviews of products. You undertake that the User Submissions that are viewable by other users are made truthfully in good faith and based only on your first-hand experience. You further undertake that you will prominently indicate if a User Submission was sponsored or paid for in any way. You acknowledge that we have no obligation to pre-screen User Submissions, although we reserve the right to pre-screen, refuse, exclude or remove any User Submission for any reason or no reason, at our discretion and without notice to you. By entering into these Terms, you hereby provide your irrevocable consent to such monitoring. In the event that we pre-screen, refuse, exclude or remove any User Submissions, you acknowledge that we will do so to maintain the safety and integrity of our Services. Without limiting the foregoing, we shall have the right to remove any User Submissions that violate the Terms or are otherwise objectionable.
7. Ownership
7.1 You acknowledge and agree that all materials displayed, performed, or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations and User Submissions (collectively, "Content") may be protected by copyright and/or other intellectual property laws throughout the world. You undertake to comply with all copyright notices, trademark rules, information, and restrictions contained in the Content, and not to copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, or otherwise use for any purpose any Content not owned by you without the prior consent of the owner of that Content.
7.2 We respect others' intellectual property rights, and we reserve the right to delete or disable Content alleged to be infringing upon another person’s intellectual property rights and to terminate the accounts of the alleged infringers. See our Intellectual Property Policy to learn how to report potentially infringing Content.
7.3 You acknowledge and agree that we own or license the Services. You undertake not to modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works based on, or otherwise exploit any of the Services, except as expressly provided in this Section 7.
7.4 Subject to your compliance with these Terms and all applicable policies, rules, and guidelines, and your payment of any applicable fees, we or our content providers grant you a limited, non-exclusive, non-transferable, non-sublicensable license to access and make personal and non-commercial use of the Services for the sole purpose of using Temu. All rights not expressly granted to you in these Terms or any policies or guidelines are reserved and retained by us or our licensors, suppliers, publishers, rightsholders, or other content providers. The licenses granted by us terminate if you do not comply with these Terms or any applicable policies, rules, or guidelines.
7.5 You may not make any commercial use of any of the information provided on the Services or make any use of the Services for the benefit of another business unless explicitly permitted by us in advance. You may not solicit, advertise for, or contact in any form users for employment, contracting or any other purpose not related to the Services facilitated through Temu. If you violate this provision, we reserve the right to refuse service, terminate accounts, and/or cancel purchase transactions in our discretion.
8. Responsibilities; Third Party Risks
8.1 You acknowledge and agree that any Content publicly posted or privately transmitted through the Services is the sole responsibility of the person that posted or transmitted such Content. You access and use the Content, and interact with other users, at your own risk. We are not responsible for any errors, mistakes, omissions, inaccuracies in the Content. We do not control the Content and have no duty to take any action regarding how you may interpret, use or react to the Content. We have no obligation to review or monitor, and do not approve, endorse, or make any representations or warranties with respect to, Content. You also understand that we cannot guarantee the identities of the users with whom you interact while using the Services and are not responsible for which users gain access to the Services.
8.2 You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights to contribute such Content to the Services in such manner.
8.3 The Services may contain links or connections to third-party websites or services that are not owned or controlled by us. We have no control over, and assume no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party websites or services. In addition, we will not and cannot monitor, verify, censor, or edit the content of any third-party website or service. You acknowledge and agree that we are not responsible for any risks resulting from your access or use of any third-party websites or services. We encourage you to be aware when you leave the Services and to read the terms of use and privacy policy of each third-party website or service that you visit or use.
8.4 Your interactions with other users, other entities or individuals, including but not limited to merchandise partners, as a result of your use of the Services, including communications, payments, performances and deliveries, are solely between you and such third parties; provided, however, that we reserve the right, but have no obligation, to intercede in such interactions. You should make whatever investigation and/or seek whatever professional advice as you feel necessary or appropriate before proceeding with any interaction with any of these third parties. You acknowledge and agree that we are not responsible for any loss or damage incurred as the result of such interactions. You agree that we will not be responsible for any liability incurred as the result of such interactions.
8.5 It is a material breach of these Terms to arrange for the sale of listed items from, or the payment of fees to third parties outside the context of Temu for the purposes of circumventing the obligation to pay the fee for products purchased through the Services.
9. Release
9.1 We expressly disclaim any liability that may arise between users of Temu. If there is a dispute between you and another user or any third party on Temu, we are under no obligation to become involved. To the fullest extent permitted under applicable law, you release us, our parents, subsidiaries, affiliates, directors, officers, employees, agents and successors from all claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes.
IN ENTERING INTO THIS RELEASE, YOU EXPRESSLY WAIVE ANY PROTECTIONS (WHETHER STATUTORY OR OTHERWISE) THAT WOULD LIMIT THE COVERAGE OF THIS RELEASE TO INCLUDE ONLY THOSE CLAIMS WHICH YOU MAY KNOW OR SUSPECT TO EXIST IN YOUR FAVOR AT THE TIME OF AGREEING TO THIS RELEASE.
10. Purchases
10.1 You are responsible for reading the full product listing before purchasing a product. By confirming your purchase, you acknowledge your responsibility to pay the total cost of your order, including all applicable fees, sales tax, VAT, customs duties and other taxes, shipping costs and other amounts associated with your purchase. When you place an order and the order is being shipped to you, the title to the product passes to you upon delivery of the product to the carrier. You agree that, where applicable, you will act as the importer of record for the products purchased and you hereby authorize us to appoint a freight forwarding agent to act as your direct representative and pay any sales tax, VAT and customs duties on your behalf. Please note that sales tax, VAT, customs duties, and similar charges collected at the time of purchase are estimated values and may be subject to change depending on applicable laws. If additional amounts are assessed, you are responsible for them. We will not be liable if a product is delayed or denied customs clearance as a result of your failure to pay such amounts.
10.2 While we strive to provide accurate information on Temu, typographical errors, inaccuracies, or omissions that relate to pricing, product descriptions, availability, and offers may occur. Subject to applicable law, we reserve the right to correct any errors, inaccuracies, or omissions and to change or modify information or cancel orders or parts of orders if any information on Temu is inaccurate at any time without prior notice, including after your order has been submitted or your receipt of an order confirmation or shipping notice. You should not rely on the strike-through price in your purchase decision. If comparing prices is important to your purchase decision, you should do your own comparison before making a purchase.
10.3 Please check all descriptions and restrictions regarding the product you are interested in thoroughly before you place your order. If you have any special circumstance (e.g., a medical or health condition and/or special need) that may affect or be affected by the product you wish to purchase, it is solely your responsibility to inform us before you place your order.
10.4 We make reasonable efforts to ensure the color display of the products on Temu is as accurate as possible. However, we cannot guarantee that your monitor’s display of any color will be an accurate depiction of the color of the product you selected to purchase.
10.5 You acknowledge that the products are in conformity with the transaction or intended purchase if they: (i) comply with the description provided on Temu and possess the qualities presented on Temu; (ii) are fit for the purposes for which goods of such kind are normally used; and (iii) are of the quality and performance which are normal in goods of the same type and which can reasonably be expected.
10.6 In order to make purchases, you must provide accurate and complete information for a valid payment method, such as a credit card, that you are authorized to use. You must promptly update your account with any changes related to your payment method. BY PROVIDING INFORMATION FOR A PAYMENT METHOD AND APPROVING A SPECIFIC PURCHASE PAYMENT, YOU AUTHORIZE US OR OUR AGENTS OR PAYMENT SERVICE PROCESSORS TO CHARGE THE PAYMENT METHOD FOR: (A) AMOUNTS DUE FOR THE SPECIFIC PRODUCTS WHICH YOU ARE SEEKING TO PURCHASE; (B) ANY AND ALL APPLICABLE CUSTOMS DUTIES, TAXES AND SHIPPING COSTS; AND (C) ANY OTHER CHARGES INCURRED IN CONNECTION WITH YOUR USE OF THE SERVICES, AS SUMMARISED PRIOR TO YOUR APPROVAL OF THE PAYMENT. YOUR PAYMENTS ARE NON-REFUNDABLE EXCEPT AS EXPRESSLY PROVIDED IN APPLICABLE POLICIES. We may decline, freeze or hold your transaction for any reason as permitted by applicable laws, including for suspected fraud, anti-money laundering and sanctions compliance, or if we reasonably believe your transaction poses a risk to us or any third party.
10.7 Payment processors may charge you fees for your purchases made through Temu. Such processing fees will be disclosed to you via Temu. Your use of the Services and the payment processing provided by the payment processor is subject to your agreement with the payment processor, as may be modified from time to time. As a condition of using the payment services, you must provide accurate and complete information, and you authorize us to share this information with the payment processor.
10.8 Your payment obligations are fully fulfilled once your payment of the agreed price is received.
11. Refunds, Exchanges and Related
11.1 We assist you with customer services support involving payment, return, refund and other areas in connection with your purchase of products.
11.2 We want you to be satisfied with your purchases through the Services. For all the products purchased on Temu, you may be entitled to a return and refund. For details of return and refund, please visit our Return and Refund Policy. Please follow the instructions in the policy if you want to request a refund. You acknowledge and agree that we may issue a refund to you in accordance with the Return and Refund Policy.
Unless otherwise described in the Return and Refund Policy, the refund will not cover customs duties, taxes, or any return shipping costs you may incur in the refund process.
12. Rewards
12.1 You may receive credits, coupons, cash, gifts or other kinds of reward by use of the Services (collectively, “Rewards”). Some rewards may only be used for discounts on or payment for eligible purchases on or through the Services (but note that not all products may be eligible) and cannot be redeemed for cash, except in jurisdictions where required by law. You should read carefully the information and applicable rules regarding different kinds of rewards. In the event of any inconsistency between the conditions governing the Rewards and these Terms, the specific conditions of the Rewards shall prevail.
13. Ending Our Relationship
13.1 You are free to stop using the Services at any time. We are also free to terminate or suspend your use of the Services or your Account, for any reason in our discretion, including your breach of these Terms. You acknowledge and agree that we have the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms. Even after your use of the Services is terminated or suspended, these Terms will remain enforceable against you and any unpaid amount you owe to us will remain due.
13.2 If your Account is terminated for any reason, all Content and Rewards associated with your Account will be forfeited and cancelled. You should try to use any remaining Rewards before the date on which such termination becomes effective.
13.3 All provisions of the Terms which by their nature should survive, shall survive termination of these Terms, including without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
14. WARRANTY DISCLAIMER
14.1 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW WE EXPRESSLY DISCLAIM ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, RELATING TO THE SERVICES, ANY CONTENT OR ANY PRODUCT OFFERED OR PURCHASED ON OR THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF PRODUCTS’ CONDITION, QUALITY, DURABILITY, PERFORMANCE, ACCURACY, RELIABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR ANY WARRANTIES OF THE CONTENT’S ACCURACY, CORRECTNESS, COMPLETENESS, OR LEGALITY. ALL SUCH WARRANTIES, REPRESENTATIONS, CONDITIONS, AND UNDERTAKINGS ARE HEREBY EXPRESSLY EXCLUDED. NO COMMUNICATION OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. IN ADDITION, WE MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF PRODUCTS OFFERED OR PURCHASED ON OR THROUGH THE SERVICES. THIS SECTION 14 DOES NOT AFFECT IN ANY WAY OUR RETURN AND REFUND POLICY FOR PRODUCTS PURCHASED ON THE SERVICES.
14.2 YOUR USE OF THE SERVICES AND YOUR USE OF ANY PRODUCT OFFERED AND PURCHASED ON OR THROUGH THE SERVICES ARE AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNLESS EXPRESSLY PROVIDED OTHERWISE, THE SERVICES, PRODUCTS OFFERED AND PURCHASED ON OR THROUGH THE SERVICES, AND THE CONTENT ARE MADE AVAILABLE TO YOU ON AN "AS-IS" AND "AS-AVAILABLE" BASIS, WITH ALL FAULTS AND WITHOUT WARRANTIES OF ANY KIND.
14.3 YOU ACKNOWLEDGE AND AGREE THAT THE TEMU PARTIES (AS DEFINED IN SECTION 16.1) ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE TEMU PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. WE MAKE NO PROMISES WITH RESPECT TO, AND EXPRESSLY DISCLAIM ALL LIABILITY FOR: (1) PRODUCTS, SERVICES, INFORMATION, PROGRAMMING, AND/OR ANYTHING ELSE PROVIDED BY A THIRD PARTY THAT IS ACCESSIBLE TO YOU ON OR THROUGH THE SERVICES; OR (2) THE QUALITY OR CONDUCT OF ANY THIRD PARTY YOU ENCOUNTER IN CONNECTION WITH YOUR USE OF THE SERVICES.
14.4 YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU ASSUME FULL RESPONSIBILITY FOR YOUR USE OF THE SERVICES, INCLUDING YOUR INTERACTIONS WITH OTHER USERS OF THE SERVICES, AND THAT ANY INFORMATION YOU SEND OR RECEIVE DURING YOUR USE OF THE SERVICES MAY NOT BE SECURE AND MAY BE INTERCEPTED OR OTHERWISE ACCESSED BY UNAUTHORIZED PARTIES. YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE ARE NOT RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR PROPERTY OR DATA THAT RESULTS FROM ANY MATERIALS YOU ACCESS OR DOWNLOAD FROM THE SERVICES.
14.5 IF YOU RELY ON ANY DATA OR INFORMATION OBTAINED ON OR THROUGH THE SERVICES, YOU DO SO AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS FROM YOUR USE OF SUCH DATA OR INFORMATION.
15. LIMITATION OF LIABILITY
15.1 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL TEMU PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOSS OF DATA, PROFITS, REVENUE OR GOODWILL, REPUTATIONAL HARM, BUSINESS INTERRUPTION, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR (B) YOUR USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY INABILITY TO ACCESS OR USE THE SERVICES OR THE PURCHASE AND USE OF PRODUCTS OFFERED ON OR THROUGH THE SERVICES, EVEN IF WE OR ANY OTHER PERSON HAS FORESEEN OR BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A TEMU PARTY FOR (I) DEATH OR PERSONAL INJURY CAUSED BY OUR GROSS NEGLIGENCE; OR FOR (II) ANY INJURY CAUSED BY OUR FRAUD OR FRAUDULENT MISREPRESENTATION.
15.2 THIS DISCLAIMER APPLIES, WITHOUT LIMITATION, TO THE MAXIMUM EXTENT PERMITTED UNDER LAW, TO ANY DAMAGES OR PERSONAL INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, ANY THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, LOSS OR USE OF, ANY RECORD OR DATA, AND ANY OTHER TANGIBLE OR INTANGIBLE LOSS.
15.3 YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT WE SHALL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT BY ANY USER OF THE SERVICES.
15.4 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT FOR WHICH THE TEMU PARTIES ARE LIABLE TO YOU EXCEED THE GREATER OF: (A) THE TOTAL AMOUNT PAID TO US BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (B) $100.00; OR (C) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A TEMU PARTY FOR (I) DEATH OR PERSONAL INJURY CAUSED BY OUR GROSS NEGLIGENCE; OR FOR (II) ANY INJURY CAUSED BY OUR FRAUD OR FRAUDULENT MISREPRESENTATION. THE PRECEDING SENTENCE SHALL NOT PRECLUDE THE REQUIREMENT FOR YOU TO PROVE ACTUAL DAMAGES.
15.5 CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES OR IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
15.6 THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE ESSENTIAL TO THE AGREEMENT BETWEEN YOU AND US.
16. Indemnity
16.1 To the fullest extent permitted by applicable law, you agree to indemnify and hold us, our parents, subsidiaries, affiliates, directors, officers, agents, employees, suppliers, licensors and partners (each, a “Temu Party” and collectively, the “Temu Parties”) harmless from and against any and all claims, liabilities, damages, losses, and expenses (including reasonable attorneys' fees) arising from or in connection with any third-party claims relating to: (a) your use of the Services, including without limitation, User Submissions or any actions taken by a third party using your Account; (b) your violation of these Terms; (c) your violation of any rights of another party, including without limitation any copyright, property, or privacy right or any third-party agreement; or (d) your violation of any applicable laws, rules, or regulations. In the event of such a claim, suit, or action (each, a "Claim"), we will attempt to provide notice of the Claim to the contact information we have for your Account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations under these Terms).
16.2 We reserve the right, at our own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which case you will fully cooperate with us in asserting any available defenses.
16.3 You agree that the provisions in this section will survive any termination of your Account, the Terms and/or your access to the Services.
17. App Stores
17.1 Application License. Subject to your compliance with the Terms, we grant you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Temu mobile application (“Application”) on a device or computer that you own or control solely for your personal or non-commercial use. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “Apple App Store Sourced Application”), you will only use the Apple App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Apple App Store Sourced Application or any Application accessed through or downloaded from the Google Play Store (a “Google Play Sourced Application”), you may have additional rights with respect to access to and use of the Application applicable to volume purchasing or via family sharing on Apple-branded Products or a shared basis within your designated family group subject to the applicable Apple or Google terms and your associated settings.
17.2 App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play Store (each, an “App Store”). You acknowledge that the Terms are between you and us and not with the App Store. We, not the App Store, are solely responsible for the Services, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (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 agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Service, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce it.
17.3 Accessing and Downloading the Application from the Apple App Store. The following applies to any Apple App Store Sourced Application accessed through or downloaded from the Apple App Store:
17.3.1 You acknowledge and agree that (i) the Terms are concluded between you and us only, and not Apple, and (ii) we, not Apple, are solely responsible for the Apple App Store Sourced Application and content thereof. Your use of the Apple App Store Sourced Application must comply with the Apple App Store Terms of Service.
17.3.2 You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple App Store Sourced Application.
17.3.3 In the event of any failure of the Apple App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple 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 Apple App Store Sourced Application. As between Apple and us, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our sole responsibility.
17.3.4 You and we acknowledge that, as between Apple and us, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the Apple App Store Sourced Application or your possession and use of the Apple App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation.
17.3.5 You and we acknowledge that, in the event of any third-party claim that the Apple App Store Sourced Application or your possession and use of that Apple App Store Sourced Application infringes that third party’s intellectual property rights, as between Apple and us, we, 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 Terms.
17.3.6 You and we acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the Apple App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the Apple App Store Sourced Application against you as a third-party beneficiary thereof.
17.3.7 Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the Apple App Store Sourced Application.
18. General
18.1 Assignment. You may not assign, delegate, or transfer these Terms, or your rights and obligations hereunder, to any other person in any way (by operation of law or otherwise) without our prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. To the extent permitted by applicable laws, we may transfer, assign, or delegate these Terms and its rights and obligations hereunder to any other person without your consent.
18.2 Force Majeure. We shall not be liable for any delay or failure to perform resulting from causes outside our reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, pandemics, strikes, or shortages of transportation facilities, fuel, energy, labor, or materials.
18.3 Choice of Law. These Terms and any dispute of any sort that might arise between you and us hereunder will be governed by the laws of the State of New York and applicable federal laws of the United States of America, consistent with the Federal Arbitration Act, without regard to any principle of conflict-of-laws. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
18.4 Exclusive Venue. Any dispute of any sort between you and us that arises out of or in connection with the Services and is not subject to arbitration or eligible for small claims action, shall be decided exclusively by a court of competent jurisdiction located in Singapore. You hereby consent to, and waive all defense of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in such courts.
18.5 Notice. You acknowledge and agree that we may give notice to you through email using the latest email address you provided to us, which constitutes effective notice. Therefore, you are responsible for keeping your email address information with us up to date. You may give notice to us through this web form.
18.6 Export Control. You undertake to use the Services and products purchased on or through the Services in compliance with all applicable U.S. or other export and re-export restrictions of relevant jurisdictions. In particular, you acknowledge and agree that the Services, including any products purchased on or through the Services, may not be exported or re-exported (a) into any embargoed countries by your country of residence or other relevant countries, or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services nor the products purchased on the Services for any purpose prohibited by any applicable law.
18.7 Waiver. Our failure to respond to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.
18.8 Severability. Except as provided in Section 19.11, if any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable.
18.9 Third-Party Beneficiaries. Except as provided in Section 17, there are no third-party beneficiaries intended under these Terms.
18.10 Entire Agreement. These Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersede and merge all prior discussions between the parties with respect to such subject matter.
18.11 Translation. The translated versions of these Terms, Privacy Policy, Cookies and Similar Technologies Policy, Intellectual Property Policy or any other terms, policies, disclosures, or representations on Temu are provided for your convenience only. If there are any discrepancies between the English version and versions in other languages, the English version shall always prevail and govern your relationship with us.
19. ARBITRATION AGREEMENT
PLEASE READ THIS SECTION 19 ("ARBITRATION AGREEMENT") CAREFULLY. PLEASE BE AWARE THAT THIS SECTION CONTAINS PROVISIONS GOVERNING HOW DISPUTES BETWEEN YOU AND US WILL BE RESOLVED. AMONG OTHER THINGS, THIS SECTION 19 INCLUDES AN AGREEMENT TO ARBITRATE, WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US BE RESOLVED BY BINDING AND FINAL ARBITRATION. THIS SECTION 19 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. IN SOME COUNTRIES YOU MAY HAVE ADDITIONAL RIGHTS AND/OR ELEMENTS OF THIS ARBITRATION AGREEMENT MAY NOT APPLY TO YOU AS REQUIRED BY LAW.
19.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and we agree that any dispute, claim, or disagreement arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services, or the Terms, including claims and disputes that arose between us before the effective date of the Terms (each, a “Dispute”) will be resolved by binding arbitration, using the English language, rather than in court, except that: (1) you and we may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or we may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Terms as well as claims that may arise after the termination of the Terms.
19.2 Informal Dispute Resolution. There may be instances when a Dispute arises between you and us. If that occurs, we are committed to working with you to reach a reasonable resolution. You and we agree that good faith informal efforts to resolve Disputes can result in a prompt, low-cost and mutually beneficial outcome. You and we therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you also agree to participate in the conference. The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties in writing. Notice to us t except as expressly provided in Section 19.9. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
19.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Arbitration Notice was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or we need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys' fees incurred in securing an order compelling arbitration. The prevailing party in any legal proceeding relating to whether either party has satisfied any condition precedent to arbitration, including the informal dispute resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs incurred in litigating the court action or in defending against an improperly commenced arbitration prior to the other party’s completion of the condition precedent.
19.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and we agree that in the event that there are twenty-five (25) or more individual Arbitration Notices of a substantially similar nature filed against us by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period, AAA shall (1) administer the arbitration demands in batches of 100 Arbitration Notices per batch (plus, to the extent there are less than 100 Arbitration Notices left over after the batching described above, a final batch consisting of the remaining Arbitration Notices), or in a single batch if there are fewer than 100 Arbitration Notices in total; (2) appoint one arbitrator for each batch; (3) administer the batches concurrently; (4) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”). Arbitration awards in one batch of arbitration demands shall have no precedential effect on subsequently administered batches.
All parties agree that Arbitration Notices are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the exthat you intend to initiate an Informal Dispute Resolution Conference should be sent by email to legal@temu.com. The Notice must include: (1) your name, telephone number, mailing address, email address associated with your Account (if you have one); (2) the name, telephone number, mailing address and email address of your counsel, if any; and (3) a description of your Dispute. The notice must specify a proposed date and time when you are available for an Informal Dispute Resolution Conference; however, you agree to cooperate with Temu in scheduling a mutually agreeable date and time if your proposed date and time is not convenient for Temu.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section. Failure to appear for the Informal Dispute Resolution Conference without prior notice or extenuating circumstances will be deemed a failure to participate in good faith.
19.3 Waiver of Jury Trial. YOU AND WE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and we are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 19.1 above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
19.4 Waiver of Class and Other Non-Individualized Relief. YOU AND WE AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 19.9, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, 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 the party's individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 19.9. Notwithstanding anything to the contrary in this Arbitration Agreement, if a final decision, not subject to any further appeal or recourse, determines that the limitations of this Section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and we agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated only in the courts provided for under Section 18.4. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or us from participating in a class-wide settlement of claims.
19.5 Rules and Forum. The Terms evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the informal dispute resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of Notice, you and we agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be conducted by American Arbitration Association (the “AAA”), an established alternative dispute resolution provider, under its rules, including Consumer Arbitration Rules (the “AAA Rules”), then in effect, unless otherwise required by law. AAA’s rules are also available at https://adr.org/consumer. For all actions under the AAA Rules, the proceedings may be filed where your residence is, or in New York, New York, and any in-person hearings will be conducted at a location which is reasonably convenient to both parties taking into account their ability to travel and other pertinent circumstances. If AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA rules.
If the Parties are not able to resolve the Dispute through the mandatory informal dispute resolution process referenced above, either party may initiate an arbitration proceeding by sending a demand to the other party that describes the nature and basis for the claim and includes all of the information required in the arbitration notice (“Arbitration Notice”). The Party initiating arbitration must include as part of the demand a personally signed certification of compliance with the informal dispute resolution process. The Arbitration Notice must include: (1) the name, telephone number, mailing address, email address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the informal dispute resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration. If the party requesting arbitration is represented by counsel, the Arbitration Notice shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Arbitration Notice. By signing the Arbitration Notice, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Arbitration Notice is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. Unless you and we otherwise agree, or the Batch Arbitration process discussed in Section 19.9 is triggered, the arbitration will be conducted in the county where you reside. Subject to the applicable AAA rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules. You and we agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential. In any arbitration between you and us, either party may make a written settlement offer on a claim at any time before the arbitrator issues their final decision on the claim. The amount or terms of the offer must not be disclosed to the arbitrator until after the arbitrator makes a final decision. If the offer is not accepted after 30 days or prior to the final decision (whichever is sooner), it shall be deemed withdrawn. If an offer made by one party is not accepted by the other party, and the other party fails to obtain a more favorable award on the claim at issue, the other party shall pay the offering party’s costs incurred after the offer was made, including any attorney’s fees and fees paid to the arbitration provider, and shall not recover their own post-offer costs. If any applicable statute or case law prohibits the shifting of costs incurred in the arbitration or the fee-shifting provision is otherwise found to be unenforceable or invalid, then the fee-shifting provision in this paragraph will be limited or eliminated, to the minimum extent necessary, so that the remaining provisions in this paragraph shall otherwise remain in full force and effect and enforceable.
19.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the State of New York, and will be selected by the parties from the AAA roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Arbitration Notice, then AAA will appoint the arbitrator in accordance with the applicable AAA rules, provided that if the Batch Arbitration process under Section 19.9 is triggered, AAA will appoint the arbitrator for each batch.
19.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Section 19.4, including any claim that all or part of Section 19.4 is unenforceable, illegal, void or voidable, or that Section 19.4 has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 19.9, all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties,ent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise AAA, and AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by us. You and we agree to cooperate in good faith with AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Arbitration Notices, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
19.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the email address set forth in Section 18.5, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
19.11 Invalidity, Expiration. Except as provided in Section 19.9, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. For the avoidance of doubt, this means that, if Section 19.9 is found under the law to be invalid or unenforceable to any extent, then you agree that the entire Arbitration Agreement shall be of no force and effect. You further agree that any Dispute that you have with us as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
19.12 Modification. Notwithstanding any provision in the Terms to the contrary, we agree that if we make any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days of such change becoming effective by writing to us at the email address set forth in Section 18.5, your continued use of the Services, including the acceptance of products and services offered on or through the Services, following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of the Terms and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services or the Terms, the provisions of this Arbitration Agreement as of the date you first accepted the Terms (or accepted any subsequent changes to the Terms) remain in full force and effect. We will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of the Terms.
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