- Our website located at www.cape.com (“Website”);
- Our products (“Products”);
- Our Product software (“Software”); and
- Any Cape hardware (including the drones that you operate remotely while using the Product) (“Hardware”) or other services that link to this Agreement, regardless of how you access or use them.
PLEASE BE AWARE THAT SECTION 13(4) OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF COMPANY PROPERTIES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
Use of the Cape Properties. The Cape Properties are protected by intellectual property laws
throughout the world. Subject to the Agreement, Cape grants you a limited license to use the Cape Properties
solely for your personal purposes. Unless otherwise specified by Cape in a separate license, your right to
use any Cape Properties is subject to the Agreement.
- Updates. You understand that the Cape Properties are evolving.You acknowledge and agree that Cape may update the Cape Properties with or without notifying you. You may need to update third-party software from time to time in order to receive the Services or use the Cape Properties.
- Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Cape Properties or any portion of the Cape Properties, including the Website; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Cape Properties (including images, text, page layout or form) of Cape; (c) you shall not use any metatags or other “hidden text” using Cape’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Cape Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the Cape Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Cape Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Cape Properties. Any future release, update or other addition to the Cape Properties shall be subject to the Agreement. Cape, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of the Cape Properties terminates the licenses granted by Cape pursuant to the Agreement.
- Registering your Account. In order to use our Products you will be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a User who has registered an account on the Website (“Account”) by either providing information directly to Cape or allowing Cape access to the User’s information by connecting to the User’s Facebook or Google account (your “Google Account”).
- Access through Facebook or Google. Cape may enable you to login into your Account with your Facebook or Google ID (each, a “Third Party”). You represent that you are entitled to disclose your Facebook or Google Account login information to Cape and/or grant Cape access to your Facebook or Google Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of your Facebook or Google Account and without obligating Cape to pay any fees or making Cape subject to any usage limitations imposed by Facebook or Google Inc. or their affiliates. PLEASE NOTE THAT YOUR RELATIONSHIP WITH FACEBOOK OR GOOGLE AND THEIR AFFILIATES IS GOVERNED SOLELY BY YOUR AGREEMENT(S) SUCH THIRD PARTIES, AND CAPE DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD PARTIES IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN YOUR FACEBOOK OR GOOGLE ACCOUNT.
- Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the Cape Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Cape Properties by minors. You may not share your Account or password with anyone, and you agree to (1) notify Cape immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Cape has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Cape has the right to suspend or terminate your Account and refuse any and all current or future use of the Cape Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. Cape reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third-party that a username violates the third-party’s rights. You agree not to create an Account or use the Cape Properties if you have been previously removed by Cape, or if you have been previously banned from any of the Cape Properties.
- Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Website and Services. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Cape Properties.
- Cape Properties. You agree that Cape and its suppliers own all rights, title and interest in the Cape Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Cape Properties.
- Trademarks. Cape’s name, stylized “C” and other related graphics, logos, service marks and trade names used on or in connection with the Cape Properties are the trademarks of Cape and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Cape Properties are the property of their respective owners.
- Other Content. Except as provided herein, you agree that you have no right or title in or to any content that appears on or in the Cape Properties.
- Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Cape.
- Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Cape through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Cape has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Cape a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Cape Properties.
- User Conduct. As a condition of use, you agree not to use the Cape Properties for any purpose that is prohibited by the Agreement or by applicable law. You shall not (and shall not permit any third-party) to take any action that: (i) is unlawful; (ii) interferes with or attempts to interfere with the proper functioning of the Cape Properties or uses the Cape Properties in any way not expressly permitted by the Agreement; or (iii) to attempt or engage in, any potentially harmful acts that are directed against the Cape Properties, including but not limited to, damaging or attempting to damage any Hardware, violating or attempting to violate any security features of the Cape Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Cape Properties, introducing viruses, worms, or similar harmful code into the Cape Properties, or interfering or attempting to interfere with use of the Cape Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” the Cape Properties.
- Third-Party Websites, Applications & Ads. The Website may contain links to third- party websites and applications (“Third-Party Websites & Applications”) and advertisements for third parties (collectively, “Third-Party Websites, Applications &/or Ads”). When you click on a link to a Third-Party Website, Application &/or Ad, we will not warn you that you have left the Website and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Applications & Ads are not under the control of Cape. Cape is not responsible for any Third-Party Websites, Applications & Ads. Cape provides these Third-Party Websites, Applications &/or Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third- Party Websites, Applications &/or Ads, or their products or services. You use all links in Third- Party Websites, Applications &/or Ads at your own risk. When you leave our Website, our Agreement and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites & Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third-party.
Fees and Purchase Terms.
- Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. You must provide Cape with valid credit card (Visa, MasterCard, or any other issuer accepted by us) or our payment processor (“Payment Provider”). Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement and not the Agreement to determine your rights and liabilities. By providing Cape or our payment processor with your credit card number and associated payment information, you agree that Cape is authorized to immediately invoice your Account for all fees and charges due and payable to Cape hereunder and that no additional notice or consent is required. You agree to immediately notify Cape and our payment processor of any change in your billing address or the credit card used for payment hereunder. Cape reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Cape Properties or by e-mail delivery to you.
- Taxes. Cape’s fees are net of any applicable Sales Tax. If any Services, or payments for any Services, under the Agreement are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Cape, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority and you will indemnify Cape for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Cape is permitted to pass to its customers that is) the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
- Free Trials and Other Promotions. Any free trial or other promotion must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable fee.
- Disputes. You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: 822 Cassia St, Redwood City, CA 94063.
- Indemnification. You agree to indemnify and hold Cape, itsparents, subsidiaries, affiliates, and its and their respective officers, directors, employees, and agents (collectively the “Cape Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your breach of the Agreement; (b) your use of the Website; or (c) in connection with your Account or any other person’s use or access to your Account, with or without your permission. This provision does not require you to indemnify any Cape Party for any unconscionable commercial practice by such party, or for such party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Company Properties. You agree that the provisions in this section will survive any termination of your Account, the Agreement, or your access to the Cape Properties.
Disclaimer of Warranties.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE
CAPE PROPERTIES IS AT YOUR SOLE RISK, AND THE CAPE PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS
AVAILABLE” BASIS, WITH ALL FAULTS. CAPE PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS,
AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE CAPE PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE CAPE PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
- THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS, SUCH AS INCLEMENT WEATHER. EXCEPT AS PROVIDED HEREIN, CAPE MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES.
- As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE CAPE PROPERTIES IS AT YOUR SOLE RISK, AND THE CAPE PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. CAPE PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Limitation of Liability.
- Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL THE CAPE PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES RESULTING FROM LOSS OF USE, ARISING OUT OF OR IN CONNECTION WITH THE CAPE PROPERTIES, WHETHER OR NOT CAPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES ANDWHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A CAPE PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A CAPE PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A CAPE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION. NOTWITHSTANDING THE FOREGOING, YOU MAY ONLY SEEK EXEMPLARY DAMAGES FOR ANY ACTION BY A CAPE PARTY ACTUATED BY MALICE OR ACCOMPANIED BY A WANTON AND WILLFUL DISREGARD OF PERSONS WHO FORESEEABLY MIGHT BE HARMED.
- Cap on Liability. UNDER NO CIRCUMSTANCES WILL CAPE PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE AMOUNT RECEIVED BY CAPE AS A RESULT OF YOUR USE OF THE CAPE PROPERTIES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO LIABILITY HEREUNDER; OR (B) ONE HUNDRED DOLLARS ($100).
- Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CAPE AND YOU.
Term and Termination.
- Term. The Agreement commence on the date when you accept them (as described in the preamble above) and remain in full force and effect, unless terminated earlier in accordance with the Agreement.
- Prior Use. Notwithstanding the foregoing, if you used the Cape Properties prior to the date you accepted the Agreement, you hereby acknowledge and agree that the Agreement commenced on the date you first used the Cape Properties (whichever is earlier) and will remain in full force and effect, unless earlier terminated in accordance with the Agreement.
- Termination of Services by Cape. If you have materially breached any provision of the Agreement, or if Cape is required to do so by law (e.g., where the provision of the Website or the Services is, or becomes, unlawful), Cape has the right to, immediately and without notice, suspend or terminate any Services or access to any Company Properties, provided to you. You agree that all terminations for cause shall be made in Cape’s sole discretion and that Cape shall not be liable to you or any third-party for any termination of your Account.
- Termination of Services by You. If you want to terminate the Agreement, you may do so at any time by (a) notifying Cape and (b) closing your Account. Your notice should be sent, in writing, to the following Cape address: 822 Cassia St, Redwood City, CA 94063.
- Effect of termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of the Agreement includes termination of all Services as well as deletion of your password and all related information and files associated with or inside your Account (or any part thereof). Upon termination of any Service, your right to use such Service will automatically terminate immediately. Cape will not have any liability whatsoever to you for any suspension or termination. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
- Violations. If Cape becomes aware of any possible violations by you of the Agreement, Cape reserves the right to investigate such violations. If, as a result of the investigation, Cape believes that criminal activity has occurred, Cape reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Cape is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Cape Properties to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Agreement; (3) respond to your requests for customer service; (4) protect the rights, property or personal safety of Cape, its Users or the public, or (5) in connection with all enforcement actions or to government officials, as Cape in its sole discretion believes to be necessary or appropriate.
In the event that Cape determines, in its sole discretion, that you have breached any portion of the
Agreement, or have otherwise demonstrated conduct inappropriate for the Cape Properties, Cape
reserves the right to:
- Warn you via e-mail (to any e-mail address you have provided to Cape) that you have violated the Agreement;
Discontinue your registration(s) with any of the Cape Properties, including the Services;
- Pursue any other action which Cape deems to be appropriate.
- No Subsequent Registration. If your registration(s) with, or ability to access the Cape Properties, is discontinued by Cape due to your violation of any portion of the Agreement, then you agree that you shall not attempt to re-register with or access the Cape Properties through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Cape Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Cape reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
- International Users. This Website can be accessed from countries around the world and may contain references to Cape Properties that are not available in your country. These references do not imply that Cape intends to announce such Cape Properties in your country. The Cape Properties are controlled and offered by Cape from its facilities in the United States of America. Cape makes no representations that the Cape Properties are appropriate or available for use in other locations. Those who access or use the Cape Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.
- Electronic Communications. The communications between you and Cape use electronic means, whether you visit the Cape Properties or send Cape e-mails, or whether Cape posts notices on the Cape Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Cape in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Cape provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
- Assignment. The Agreement, and your rights and obligations here under, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Cape’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
- Force Majeure. Cape shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
Please read the following arbitration agreement in this Section (“Arbitration Agreement”)
carefully. It requires you to arbitrate disputes with Cape and limits the manner in which you
can seek relief from us.
Applicability of Arbitration Agreement.
You agree that any claim or dispute relating in any way to your access or use of the Company
Properties, including any Products sold through the Website, or to any aspect of your
relationship with Cape, will be resolved by binding arbitration, rather than in court,
except that (a) you may assert claims in small claims court if you claims qualify, so long
as the matter remains in such court and advances only on an individual (non-class,
non-representative) basis; and (b) your or Cape 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).
IF YOU AGREE TO ARBITRATION WITH CAPE, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST CAPE ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST CAPE IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
Arbitration Rules and Forum.
The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration
Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration
and describing your claim to our registered agent, Matthew Bartus, at 3175 Hanover Street,
Palo Alto, CA 94304. The arbitration will be conducted by JAMS, Inc. f/k/a Judicial
Arbitration and Mediation Services (“JAMS”), an established alternative dispute
resolution provider (“ADR Provider”).
Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules and procedures available at https://www.jamsadr.com/rules- streamlined-arbitration/ all other claims shall be subject to JAMS’ most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsdr.com/rules- comprehensive-arbitration/. JAMS’ rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties shall agree to select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’ filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Cape will pay them for you. In addition, Cape will reimburse all such JAMS’ filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Cape will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions or in person in the county where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and Cape. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non- monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). 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 arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Cape.
- Waiver of Jury Trial. YOU AND CAPE 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 Cape are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 13(4)(a) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims shall be resolved in a court as set forth in Section 13(5).
- 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 following address: 822 Cassia St., Redwood City, CA 94063, and firstname.lastname@example.org. Your notice must include your name and address, your username (if any), 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 this Agreement 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.
- Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
- Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Cape makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to Cape.
- Applicability of Arbitration Agreement. You agree that any claim or dispute relating in any way to your access or use of the Company Properties, including any Products sold through the Website, or to any aspect of your relationship with Cape, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims in small claims court if you claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (b) your or Cape 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).
- Governing Law and exclusive venue. The Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Cape agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state or federal courts located in San Mateo County, California.
- Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English. C’est law volone expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.
- Notice. Where Cape requires that you provide an e-mail address, you are responsible for providing Cape with your most current e-mail address. In the event that the last e-mail address you provided to Cape is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Cape’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Cape at the following address: 822 Cassia St., Redwood City, CA 94063. Such notice shall be deemed given when received by Cape by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
- Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Severability. If any provision of the Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of the Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- Export Control. You may not use, export, import, or transfer the Cape Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Cape Properties, and any other applicable laws. In particular, but without limitation, the Cape Properties may not be exported or re-exported (a) into any United States embargoed 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. By using the Cape Properties, 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 Cape Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Cape are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Cape products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
- Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
- Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.