SONARDESIGN (“SONARDESIGN”, “WE” OR “US”) TERMS OF SERVICE
THESE TERMS AND CONDITIONS (THE “TERMS”) ARE A LEGAL CONTRACT BETWEEN YOU AND SONARDESIGN. THE TERMS EXPLAIN HOW YOU ARE PERMITTED TO USE THE WEBSITE LOCATED AT THE URL: WWW.SONARDESIGN.COM AS WELL AS ALL ASSOCIATED SITES LINKED TO WWW.SONARDESIGN.COM BY SONARDESIGN, ITS SUBSIDIARIES AND AFFILIATED COMPANIES (COLLECTIVELY, THE "SITE"). BY USING THE SITE, YOU ARE AGREEING TO ALL THE TERMS; IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THIS SITE, ANY SOFTWARE, SERVICES OR CONTENT AVAILABLE THROUGH THIS SITE (COLLECTIVELY, THE “SERVICES”) OR ANY INFORMATION CONTAINED ON THIS SITE.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH SONARDESIGN. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
sonarDesign may make changes to the Site and/or Services at any time. sonarDesign may also change, update, or add or remove provisions of these Terms at any time by posting the updated Terms on the Site and, if you have an account, by emailing you at the email address associated with your account at the time of the change. By using the Site and/or any Services after sonarDesign has updated these Terms, you are agreeing to all the updated Terms; if you do not agree with any of the updated Terms, you must stop using the Site and Services.
By using the Site or Services, you represent that you are 18 years of age or older or, if you are between the ages of 13 and 18, that you are using the Site and/or Services with the permission of your parent or legal guardian or that you are an emancipated who is at least 13. If you are a parent or legal guardian who is registering for a child, you hereby agree to bind your child to these Terms and to fully indemnify and hold harmless sonarDesign if your child breaches or disaffirms any term or condition of these Terms. If you are using the Site and/or Service on behalf of a company, you represent that you are authorized to legally bind the company to these Terms.
If sonarDesign believes that you do not meet any of these requirements, sonarDesign may immediately terminate your use of the Site and Services.
sonarDesign provides content through the Site and through the Services that is copyrighted and/or trademarked work of sonarDesign, or sonarDesign’s third-party licensors and suppliers and/or other users of the Site and/or Services (collectively, the “Materials”). Materials may include logos, graphics, video, images, software and other content.
If you breach any of these Terms, the above license will terminate automatically and you must immediately destroy any downloaded or printed Materials.
Using the Site and Services.
You need not register with sonarDesign to simply visit and view the Site. However, in order to create User-Generated Content on the Service, publish User-Generated Content for use on the Service, or purchase User-Generated Content for use on the Service, or use certain other Services and Materials offered on and through the Site, you must register with sonarDesign for an account and receive a password.
If you desire to register for an account with sonarDesign, you must submit a username and password through the account registration page on the Site. You will also have the ability to provide additional optional information, such as your address, which is not required to register for an account but may be helpful to sonarDesign in providing you with more a more customized experience when using the Site or Services. Once you have submitted your account registration information, a sonarDesign administrator shall have the right to approve or reject the requested registration, in the administrator’s sole discretion. If your account is approved by sonarDesign, you will be able to log-on to the Site and Services using your password (the “Password”).
You are responsible for maintaining the confidentiality of your Password, and you are responsible for all activities that occur using your account or Password. You agree not to share your Password, let others access or use your Password or do anything else that might jeopardize the security of your Password. You agree to notify sonarDesign if your Password is lost, stolen, if you are aware of any unauthorized use of your account or Password or if you know of any other breach of security in relation to the Site and/or the Service.
All the information that you provide when registering for an account and otherwise through the Site must be accurate, complete and up to date. You may change, correct or remove any information from your account by logging into your account directly and making the desired changes.
If applicable, you agree to pay all fees charged to your account based on sonarDesign’s fees, charges, and billing terms then in effect as shown in the sonarDesign User-Generated Content stores or on the payment pages of the Site. If you have a balance due on any account, you agree that sonarDesign may, and you hereby authorize sonarDesign to, charge such unpaid fees, any applicable tax and any other charges to your PayPal account, credit card, or other payment method accepted by sonarDesign, or otherwise bill you for such unpaid fees or other applicable charges. If you do not pay any amount due on time, or if sonarDesign cannot charge your PayPal account, credit card or other payment method for any reason, sonarDesign, in addition to any other rights or remedies it may have, reserves the right to either immediately suspend or terminate your access to all or a portion of the Site and/or Services. sonarDesign is not liable for any loss caused by any unauthorized use of your PayPal account, credit card or any other method of payment by a third party in connection with your use of the Site or Services, or the use of your account. sonarDesign reserves the right to change its fees and billing methods at any time; any changes to the fees or billing methods will be posted on the Site or through the Services. Your continued use of the Services after the changes have taken effect means that you accept such changes.
[From time to time during your use of the Services, you may "buy" or "purchase" User-Generated Content to use on the Services. You understand and agree that you do not in fact "own" the User-Generated Content. Rather, by “buying”, or “purchasing” User-Generated Content, you are purchasing a limited license to use the Content. The purchase, of such licenses is not refundable, transferable or exchangeable, and such licenses are not transferable or assignable, including, without limitation, upon termination of your account, termination of these Terms, and/or the discontinuation of the Services.
You acknowledge and agree: (a) that sonarDesign may limit the duration of your license to use the User-Generated Content; (b) that sonarDesign or the user who creates the User-Generated Content may change the price of User-Generated Content at any time, without notice, for any reason or for no reason, and (c) that sonarDesign has no liability to you for any changes in the price of such User-Generated Content.]
By using the Site and/or the Services, you consent to receiving electronic communications from sonarDesign. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Site and/or Services. These electronic communications are part of your relationship with sonarDesign. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
Links to Third-Party Sites.
AS BETWEEN YOU AND SONARDESIGN, YOU RETAIN OWNERSHIP OF ALL YOUR COPYRIGHT AND/OR OTHER INTELLECTUAL PROPERTY RIGHTS APPLICABLE TO, OR EMBODIED IN, YOUR SUBMISSIONS. You acknowledge and agree that you are solely responsible for the games, content, code, text, files, images, photos, screen shots, artwork, icons, videos, sounds, musical works, works of authorship, copyrighted text, descriptions, representations or any other materials or information that you submit, upload, post or otherwise make available on or through the Site and/or Services, including, without limitation, your User-Generated Content (each, a “Submission”). You may not upload, post or otherwise make available on the Site or Service any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right owned by a third-party, and the burden of determining whether any material is protected by any such right is on you. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, violation of contract, privacy or publicity rights or any other harm resulting from any Submission that you make. You have full responsibility for each Submission you make, including its legality, reliability and appropriateness. The term “Submission” does not include: (i) the proprietary software, algorithms and code made available by sonarDesign through the Site and Services (collectively, the “Software”); or (ii) any materials owned by sonarDesign or its third-party licensors.
You acknowledge and agree that sonarDesign may collect certain data arising from and regarding the use of your Submissions by users of the Site and Services, that sonarDesign shall own all right, title and interest in such data, and that sonarDesign has no obligation to share any such data with you.
You agree to pay for all royalties, fees, damages and any other monies owing any person by reason of any Submissions posted by you to or through the Site or Service.
When you provide Submissions you agree that those Submissions shall not be in violation of the “Unauthorized Activities” paragraph below. Those prohibitions do not require sonarDesign to monitor, police or remove any Submissions or other information submitted by you or any other user.
When using this Site and/or the Services, you agree to abide by common standards of etiquette and act in accordance with the law. For example, you agree not to:
Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
Use racially, ethnically, or otherwise offensive language.
Discuss or incite illegal activity.
Use explicit/obscene language, solicit/post sexually explicit images (actual or simulated), or otherwise post, publish, submit, provide access to or transmit any Submission that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is excessively violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances.
Post, publish, submit, provide access to or transmit anything that exploits children or minors or that depicts cruelty to animals.
Disseminate any unsolicited or unauthorized advertising, promotional materials, 'junk mail', 'spam', 'chain letters', 'pyramid schemes', or any other form of such solicitation.
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by sonarDesign or any of our providers or any other third party (including another user) to protect the Site, Services, Materials or any part thereof.
Attempt to illicitly obtain a password, account information, or other private information from anyone else who uses the Site and/or Services.
Collect user names, personas, street addresses, e-mail addresses, or other personal information from, or of, other users of the Site and/or Services for any purpose other than your personal use in your interactions on the Site or through the Services, and at all times with the permission of the relevant users.
Use any robot, spider, scraper or other automated means to access the Site.
Take any action that imposes an unreasonable or disproportionately large load on sonarDesign’s infrastructure.
Alter the opinions or comments posted by others on the Site or Service.
Upload or transmit (or attempt to upload or transmit) files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files or data, or any other similar software or programs that may damage the operation of the Site and/or Services or the computers of other users of the Site and/or Services.
Post, publish, submit, provide access to or transmit anything contrary to our public image, goodwill or reputation.
Create an account or use the Service if your permission to use the Site and/or Services has previously been terminated by sonarDesign.
Encourage or enable any other individual or group to do any of the foregoing.
This list of prohibitions provides examples and is not complete or exclusive. sonarDesign reserves the right to (a) terminate access to your account, your ability to post to this Site (and/or use the Services) and (b) refuse, delete or remove any Submissions; with or without cause and with or without notice, for any reason or no reason, or for any action that sonarDesign determines is inappropriate or disruptive to this Site, Services or to any other user of the Site and/or Services. sonarDesign may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at sonarDesign’s discretion, sonarDesign will cooperate with law enforcement agencies in any investigation of alleged illegal activity on this Site or Services or on the Internet.
Unauthorized use of any Materials contained on this Site may violate certain laws and regulations.
You agree to indemnify and hold sonarDesign and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees and costs of defense) sonarDesign or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third-party that your use of the Site or Services, or the use of this Site and/or Services by any person using your user name and/or Password (including without limitation, your participation in the posting areas or your Submissions) violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third-party.
The Site, Services and all content thereon or therein are protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in these Terms, sonarDesign and its licensors exclusively own all right, title and interest in and to the Site, Services and all content thereon or therein, including, but not limited to: (i) the information, features, applications, text, content, files, advertising, graphics, images, photos, videos and video clips, screen shots, art work, icons, audio, sounds, musical works, copyrighted text, works of authorship, descriptions, user and visual interfaces, widgets and Feedback; (ii) the Software; (iii) the design, appearance, structure, selection, coordination, expression, look and feel, and arrangement of the Site, Services and other sonarDesign Materials; and (iv) the domain names, trademarks, service marks, proprietary logos and other distinctive brand features found on, or in, the Site and/or Services. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site or Services. You agree that You shall not:
Modify, reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Site or Services without sonarDesign's explicit, prior written permission;
Use, display, mirror or frame the Site, Services, or any individual element within the Site or Services;
Use the intellectual property of sonarDesign, or any sonarDesign licensor, to adapt, modify or create derivative works based on such intellectual property;
Rent, lease, loan, trade, sell/re-sell access to the Services or any information therein, in whole or part; or
Use or reproduce any sonarDesign, sonarDesign licensor, or third party trademark or logo without the prior express written consent of the owner of such trademark or logo.
Intellectual Property Infringement.
sonarDesign respects the intellectual property rights of others, and we ask you to do the same. sonarDesign may, in appropriate circumstances and at our discretion, terminate Services and/or access to the Site for users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on our Site or Services, please provide sonarDesign’s designated agent the following information:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site.
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at the Site, and information reasonably sufficient to permit sonarDesign to locate the material.
Information reasonably sufficient to permit sonarDesign to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law.
A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
sonarDesign’s Interim Designation of Agent for notice of claims of copyright or trademark infringement on this Site, pursuant to 17 U.S.C. 512 (c) of the United States Copyright Act and other applicable laws:
3636 Executive Center Dr. #100
Austin, TX 78731
Name of Agent Designated to Receive Notification of Claimed Infringement :
Address of Designated Agent to which Notification Should be Sent:
3636 Executive Center Dr. #100
Austin, TX 78731
Email Address of Designated Agent: email@example.com
Phone Number of Designated Agent: (512) 765-5175
Facsimile Number of Designated Agent: (512) 354-1137
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Submitting a DMCA Counter-Notification
We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a valid DMCA take-down notice that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to sonarDesign designated agent that includes all of the following information:
Your physical or electronic signature;
Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which sonarDesign may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
Termination of Repeat Infringers
sonarDesign reserves the right, in its sole discretion, to terminate the account or access of any user of our web site and/or service who is the subject or repeated DMCA or other infringement notifications.
Disclaimer of Warranties.
Your use of this Site and/or the Services is at your own risk. The Materials have not been verified or authenticated in whole or in part by sonarDesign, and they may include inaccuracies or typographical or other errors. sonarDesign does not warrant the accuracy of timeliness of the Materials contained on this Site or Services. sonarDesign has no liability for any errors or omissions in the Materials, whether provided by sonarDesign, our licensors or suppliers or other users.
SONARDESIGN, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THIS SITE, THE SERVICES, OR ANY MATERIALS RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE, INCLUDING WITHOUT LIMITATION THE SOFTWARE. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS SITE, THE SERVICES, AND MATERIALS AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. SONARDESIGN DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.
Limitation of Liability.
SONARDESIGN SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR USING, DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THIS SITE. IN NO EVENT SHALL SONARDESIGN BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF SONARDESIGN KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE.
IN NO EVENT WILL SONARDESIGN’S, TOTAL, AGGREGATE LIABILITY TO YOU UNDER THESE TERMS OR OTHERWISE RELATING TO THE SITE OR SERVICES, WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING WITHOUT LIMITATION, STRICT LIABILITY OR NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED ONE HUNDRED U.S. DOLLARS (US$100).
Local Laws; Export Control.
sonarDesign controls and operates this Site from its headquarters in the United States of America and the Materials may not be appropriate or available for use in other locations. If you use this Site and/or Services outside the United States of America, you are responsible for following applicable local laws.
If you send or transmit any communications, comments, questions, suggestions, or related materials to sonarDesign, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Site, Services or Materials, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and sonarDesign is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that sonarDesign is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
Disputes with Other Users
You are solely responsible for your interactions with other users of the Site and Services and any other parties with whom you interact through the Site and/or Services. YOU AGREE THAT SONARDESIGN SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT WHATSOEVER INCURRED AS THE RESULT OF ANY SUCH TRANSACTION OR DEALINGS. IF THERE IS A DISPUTE BETWEEN PARTICIPANTS ON THE WEBSITE, OR BETWEEN REGISTERED USERS OR ANY WEBSITE USER AND ANY THIRD PARTY, YOU ACKNOWLEDGE AND AGREE THAT SONARDESIGN IS UNDER NO OBLIGATION TO BECOME INVOLVED. IN THE EVENT THAT A DISPUTE ARISES BETWEEN YOU AND ONE OR MORE USERS, REGISTERED USERS OR ANY THIRD PARTY, YOU HEREBY RELEASE SONARDESIGN, ITS OFFICERS, MANAGERS, MEMBERS, DIRECTORS, EMPLOYEES, ATTORNEYS, AGENTS, AND SUCCESSORS IN RIGHTS FROM ANY CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, FORESEEABLE OR UNFORESEEABLE, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATED TO SUCH DISPUTES AND/OR THE WEBSITE OR ANY SERVICE PROVIDED THEREUNDER.
If you are a California resident, you waive California Civil Code §1542, which says: "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 settlement with the debtor."
Dispute Resolution and Arbitration; Class Action Waiver.
Please read this carefully. It affects your rights.
Most customer concerns can be resolved quickly and to a customer’s satisfaction by contacting us at firstname.lastname@example.org. This Dispute Resolution and Arbitration; Class Action Waiver provision (“Provision”) facilitates the prompt and efficient resolution of any disputes that may arise between you and sonarDesign. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.
Please read this Provision carefully. It provides that all Disputes between you and sonarDesign shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees).
For the purpose of this Provision, “THE COMPANY” means sonarDesign and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and THE COMPANY regarding any aspect of your relationship with THE COMPANY, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as THE COMPANY’s licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give THE COMPANY an opportunity to resolve the Dispute. You must commence this process by mailing written notification to sonarDesign, 3636 Executive Center Dr., Suite 100, Austin, TX 78731. That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If THE COMPANY does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or THE COMPANY may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Provision by mailing written notification to sonarDesign, 3636 Executive Center Dr., Suite 100, Austin, TX 78731. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with THE COMPANY through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with THE COMPANY. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or THE COMPANY may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because the Site and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or THE COMPANY may initiate arbitration in either Austin, TX or the federal judicial district that includes your billing address. In the event that you select the federal judicial district that includes your billing address, THE COMPANY may transfer the arbitration to Austin, TX in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.
Payment of Arbitration Fees and Costs – THE COMPANY will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with THE COMPANY as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and THE COMPANY specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Site can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
You understand and agree that by entering into this Agreement you and THE COMPANY are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and THE COMPANY might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.
This Provision shall survive the termination of your service with THE COMPANY or its affiliates. Notwithstanding any provision in this Agreement to the contrary, we agree that if THE COMPANY makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require THE COMPANY to adhere to the language in this Provision if a dispute between us arises.
sonarDesign prefers to advise you if we feel you are not complying with these Terms and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by sonarDesign, may result in immediate termination of your access to this Site without prior notice to you. The Federal Arbitration Act, Texas state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement. Except for Disputes subject to arbitration as described above, any disputes relating to these Terms or this Site will be heard in the courts located in Austin Texas. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. THE sonarDesign’s failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and sonarDesign and supersede all prior or contemporaneous negotiations, discussions or agreements between you and sonarDesign about this Site and the Services. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
If you have any questions about these Terms or otherwise need to contact sonarDesign for any reason, you can reach us at email@example.com.