These Terms of Service (the “Terms”) govern the agreement between Stowk, Inc. (collectively, along with all other applicable affiliated entities “Stowk,” “Stowk,” “us,” or “we” or words of similar import) and you (alternatively, a “User”) regarding your use of (a) the www.stowk.com website and any related websites (collectively, the “Website”), (b) the STOWK platform, mobile applications associated with the Website, integrated application sites, application programming interfaces (APIs) and any related services (collectively the “Apps”), (c) any other tools, modules, servers or other offerings or services of any kind owned, provided or otherwise operated by STOWK, including those services for connecting entities needing to ship cargo with shipping transportation providers, text messaging services, referral programs or loyalty/discount programs (together with the Website and Apps, the “Services”). If you are using the Services on behalf of a company or other entity, then “User” or “you” means that entity, and you are binding that entity to these Terms. As between you and us, the Services are owned and operated or offered by STOWK.
IMPORTANT – PLEASE READ CAREFULLY – THESE TERMS CREATE A LEGALLY BINDING AGREEMENT WHICH GOVERNS YOUR USE OF THE SERVICES. BY CREATING AN ACCOUNT (AS DEFINED BELOW) OR BY ACCESSING OR USING THE SERVICES OR ANY CONTENT OFFERED THROUGH THE SERVICES, YOU ACCEPT AND AGREE TO BE BOUND, WITHOUT LIMITATION OR QUALIFICATION, BY THESE TERMS, AS THEY MAY BE UPDATED FROM TIME TO TIME AT OUR SOLE DISCRETION. IF YOU DO NOT ACCEPT ANY OF THESE TERMS, YOU ARE PROHIBITED FROM USING THE SERVICES. IF YOU WERE USING A BETA VERSION OR OTHER VERSION OF THE SERVICES OFFERED PRIOR TO YOUR ACCEPTANCE OF THESE TERMS, THESE TERMS ALSO APPLY TO YOUR PAST USE OF THAT BETA OR OTHER VERSION OF THE SERVICES.
1.2 Minimum Age Requirement for Users Who Are Individuals. If a User is an individual, a User may only use the Services if such User is at least eighteen (18) years of age. If you use any of the Services, you hereby affirm you are at least eighteen (18) years of age.
1.3 Accounts and Access. You must register for an account through the Website or any App (an “Account”). Each User may only register for one Account. An “Account Holder” means the person or entity in whose name an Account is registered. A “Third Party Account” means an Account not registered by you.
1.4 Use of the Services. The following restrictions and/or terms and conditions apply to the use of the Services:
a) You accept full responsibility for any unauthorized use of the Services by parties not authorized to use your Account. Additionally, you are responsible for any use of your credit card or other payment instrument (g., PayPal) incurred by parties using your Account;
b) You shall not create an Account using a false identity or false information, or on behalf of someone other than yourself;
c) Without first obtaining our written permission, you shall not register for an Account or in any way use the Services if we have removed, suspended or otherwise terminated any Account registered by or on behalf of you or if we have notified you that you may not use the Services;
d) You shall not use your Account to advertise, solicit or transmit any chain letters, junk email or repetitive messages to anyone;
e) You shall not use the Services to engage in any illegal conduct;
f) You shall not rent, lease, sell, trade, gift, bequeath or otherwise transfer your Account to anyone without our express written permission;
g) You shall not reproduce, distribute or publicly display any content you access through the Services unless such content is clearly marked as “public” or you have been given the right to view and share such content in accordance with these Terms; and
h) You shall not do anything with any content you access through the Services that has been marked with restrictions or other instructions that is counter to such restrictions or other instructions.
1.5 Account Information and Management.
b) Login Information. During the Account creation process, we will be creating and storing information based upon your Account (“Login Information”). The following rules govern the security of your Login Information:
i. You shall not share the Account Information or Login Information, nor let anyone else access your Account or do anything else that might jeopardize the security of your Account;
ii. In the event you become aware of, or reasonably suspect, any breach of security, including without limitation any loss, theft or unauthorized disclosure of the Login Information, you must immediately notify us in writing;
iii. You are solely responsible for maintaining the confidentiality of the Login Information and you will be responsible for all uses of the Login Information, including purchases, whether or not authorized by you; and
iv. You are responsible for anything that happens through your Account.
c) Third Party Access. You acknowledge and agree that, in order for us to optimally provide Services, and based on your actual or intended usage of the Services, we may create and maintain on your behalf an access or developer key to one or more third party APIs or developer programs. In the event you are subject to any additional terms and conditions with respect to your access to or use of any such third party APIs or developer programs, you further agree to be bound by any such terms and conditions as a condition of your access to or other use of such third party APIs or developer programs.
1.6 License and Account Limitations and Prohibitions.
a) General Effects of Violations. Any use of the Services in violation of these Terms is strictly prohibited, can result in the immediate revocation of your limited license granted under Section 1.1 and may subject you to liability for violations of law.
b) Policies. You acknowledge that we may also have in place other policies regarding use of the Services and that you agree to abide by such policies and that such policies are in addition to any obligations you have under these Terms.
c) Activity Prohibitions. You agree that you will not, under any circumstances:
i. Act in any way we deem to be in conflict with the spirit or intent of the Services, including, but not limited to, circumventing or manipulating these Terms;
ii. Use the Services in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation;
iii. Modify or cause to be modified any files or content that are used to offer the Services, without the express prior written consent of STOWK;
iv. Disrupt, overburden or aid or assist in the disruption or overburdening of (A) any computer or server used to offer or support the Services (each a “Server”) or (B) the use or enjoyment of the Services by any other person;
v. Institute, assist or become involved in any type of attack, including, without limitation, distribution of a virus, denial of service attacks upon the Services or other attempts to disrupt the Services or any other person’s use or enjoyment of the Services;
vi. Gain, or attempt to gain, unauthorized access to the Services, Third Party Accounts, Servers or networks connected to the Services by any means (including, but not limited to, circumventing or modifying, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of the Services);
vii. Post any content that: is abusive, threatening or that incites or promotes terrorism; promotes the production or use of weapons that a reasonable person understands could cause substantial harm; or is obscene, defamatory, libelous or racially, sexually, religiously or otherwise objectionable or offensive;
viii. Post any content that contains what we reasonably deem, in our sole discretion, to be excessive violence or offensive subject matter or that contains a link to such content;
ix. Harass, abuse, harm, bully, intimidate or advocate, threaten or incite harassment, bullying, intimidation, abuse or harm of another person or group of persons, including our employees, customer service representatives, our independent contractors or Other Users;
x. Post, distribute or make available through the Services any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy or any other intellectual property right of any person or entity;
xi. Post any user names or other personally identifiable information for any Other User in any reviews for the Services or Applications;
xii. Transmit unauthorized communications through the Services, including junk mail, chain letters, spam and any materials that promote malware, spyware and downloadable items;
xiii. Interfere or attempt to interfere with the proper functioning of the Services or connect to or use any Service in any way not expressly permitted by these Terms;
xiv. Use any offline reader, robot, tool, process or any other device or method of any kind to data mine, reproduce or circumvent our Services or content in any way;
xv. Intercept, examine or otherwise observe any proprietary communications used by a client, Other User, Server or the Services, whether through the use of a network analyzer, packet sniffer or other device;
xvi. Make any automated use of the Services or take any action that imposes or may impose, as determined in our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
xvii. Bypass any robot exclusion headers or other measures we take to restrict access to the Services or use any software, technology or device to send content or messages, scrape, spider or crawl the Services or harvest or manipulate data from, through or relating to the Services;
xviii. Use, facilitate, create or maintain any unauthorized connection to the Services, including, without limitation: any connection to any unauthorized server that emulates, or attempts to emulate, any part of the Services; or any connection using programs, tools or software not expressly approved in writing by us;
xix. Copy, modify or distribute rights or content from any STOWK site, including, but not limited to, content that contains or is protected by our copyrights, trademarks or other intellectual property rights, or use any method to copy or distribute the content of the Services, except as specifically allowed in these Terms;
xx. Solicit or attempt to solicit personal information from Other Users;
xxi. Collect, harvest or post anyone’s private information (including personally identifiable information, whether in text, image, video or other form), identification documents or financial information through the Services; or
xxii. Upload or transmit (or attempt to upload or to transmit), without our express written permission, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).
1.7 Suspension and Termination of Account and Services:
a) FAILURE TO COMPLY. WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY, WITH OR WITHOUT NOTICE TO YOU, LIMIT, SUSPEND, TERMINATE, MODIFY OR DELETE YOUR ACCOUNT OR YOUR ACCESS TO THE SERVICES OR PORTIONS THEREOF IF, IN OUR SOLE DISCRETION, YOU FAIL TO COMPLY WITH ANY OF THESE TERMS OR YOUR ACCOUNT IS USED FOR ACTUAL OR SUSPECTED ILLEGAL ACTIVITY OR IMPROPER USE OF THE SERVICES. WE SHALL BE UNDER NO OBLIGATION TO COMPENSATE YOU FOR, AND SHALL HAVE NO LIABILITY TO YOU FOR, ANY LOSSES OR ADVERSE RESULTS THAT ARE DUE TO THE SUSPENSION, TERMINATION, MODIFICATION OR DELETION OF YOUR OR ANY OTHER ACCOUNT.
b) IP INFRINGEMENT.
i. WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE THE SERVICES AND YOUR ACCOUNT, OR ANY PORTIONS THEREOF, PROHIBIT ACCESS TO OUR WEBSITE, APPLICATIONS AND OTHER SERVICES, INCLUDING ANY CONTENT INCORPORATED THEREIN, SERVICES AND TOOLS, DELAY OR REMOVE ANY CONTENT AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE SERVICES IF WE BELIEVE THAT SUCH USERS ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES.
ii. REPEAT INFRINGERS. IN APPROPRIATE CIRCUMSTANCES AND IN OUR SOLE DISCRETION, IT IS OUR POLICY TO SUSPEND OR TERMINATE ACCOUNTS OF USERS WHO ARE REPEAT INFRINGERS OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
c) Right to Cease Service. We reserve the right to stop offering or supporting the Services or part of the Services at any time, at which point the license granted hereunder to you to use the Services or any applicable part thereof will automatically terminate. We shall not be required to provide refunds, benefits or other compensation to Users in connection with any such cessation of the Services.
d) Account Termination. Termination of your Account can include disabling your access to Services or any part thereof, including disabling access to any content you or Other Users submitted. You agree that if your Account is terminated, we will not be obligated to preserve, provide you access to or provide copies of any content submitted via any Service relating to your Account, whether by you or an Other User.
1.8 Intellectual Property Ownership. As between you and us, the Services and all of their components and contents (including without limitation any computer code, pre-populated content, concepts, artwork, photographs, logos, trademarks, service marks, audio-visual effects, text contained within and patent, copyright, trademark, trade secret and any other intellectual property rights therein) are owned by us. The Services are protected by copyright, trademark and other laws of both the United States and foreign countries and may not be reproduced, duplicated, copied, sold, resold, visited or otherwise exploited for any unauthorized commercial purpose, or used in any manner other than as permitted by these Terms, without our express prior written consent in each instance. You agree not to engage in any reverse engineering, de-compiling or other activities designed to view the source code for any of the Services and are prohibited from reverse engineering, de-compiling or otherwise engaging in activities designed to view the source code for any Service.
1.9 Feedback. In the event you provide us with any feedback about any of the Services, including, without limitation, any errors, flaws, issues, suggestions or otherwise (collectively, “Feedback”), you hereby assign to us any and all rights, title and interest in and to the Feedback, including, but not limited to, the right to use such Feedback in any manner we deem appropriate. To the extent any Feedback may not be assigned to us, whether under any applicable law or otherwise, you agree to provide us with an exclusive, royalty-free, fully paid-up, irrevocable, perpetual, transferable, worldwide license to use such Feedback in any manner we deem appropriate.
2.1 User Data: “User Data” means any communications, materials, data and other information you upload, post or otherwise transmit through the Services, including, without limitation, Account Information, Login Information, information provided in a shipment request or acceptance, or any information related to your transactional, usage or other data with respect to the Services or any other third party platform you have authorized to interface with any Website or App.
2.3 User Interactions.
a) Responsibility for Interactions and Adherence to Policies. You are solely responsible for your interactions with Other Users and any other parties with whom you interact through the Services. You acknowledge that we have various policies in place regarding use of the Services that are intended to promote a respectful environment for all Users, such as, but not necessarily limited to, policies regarding content submitted, interactions with Other Users, respect for intellectual property rights and billings and refunds. We reserve the right, but have no obligation, to become involved in any way with any disputes that may arise between you and Other Users or any other parties with whom you interact through the Services.
b) Releases for Disputes and Use of Third Party Information. You hereby release us, and our officers, directors, agents, subsidiaries, joint ventures and employees, from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any of the following: (i) any dispute that arises between you and one or more Other Users or any other parties with whom you interact through the Services; and (ii) any use by us of third party information.
7.1 Disclaimer of Warranties.
a) SERVICES PROVIDED “AS IS”. YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK AND IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW WITH ANY LEGALLY REQUIRED WARRANTY PERIOD THE SHORTER OF THIRTY (30) CALENDAR DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED). STOWK CAUTIONS THAT DRIVING WHILE USING PHONES OR OTHER MOBILE DEVICES IS DANGEROUS AND AGAINST THE LAW. IF YOU USE THE APP OR ANY OTHER SERVICES WHILE DRIVING, YOU DO SO AT YOUR OWN RISK, AND STOWK IS NOT IN ANY WAY RESPONSIBLE FOR SUCH IMPROPER USE.
b) NO WARRANTY OF ERROR-FREE OPERATION. WITHOUT LIMITING THE FOREGOING, NEITHER STOWK NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “STOWK PARTIES”) WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE AND YOU ACKNOWLEDGE THAT SERVICES MAY SOMETIMES BE UNAVAILABLE FOR SECURITY, MAINTENANCE OR OTHER REASONS.
c) NO WARRANTY REGARDING ACCESS TO ACCOUNTS AND CONTENT. THE STOWK PARTIES DO NOT GUARANTEE THAT ANY INDIVIDUAL OR ACCOUNT HOLDER WILL ALWAYS BE PREVENTED FROM VIEWING INFORMATION OR CONTENT THAT THE SERVICES INTENDED TO NOT BE AVAILABLE TO SUCH INDIVIDUAL. THE STOWK PARTIES DO NOT WARRANT THAT ALL CONTENT OR INFORMATION POSTED BY AN ACCOUNT HOLDER WILL REMAIN AVAILABLE AT ALL TIMES OR WILL NEVER BE DELETED, CORRUPTED OR OTHERWISE UNAVAILABLE. THE STOWK PARTIES DO NOT WARRANT THAT THE SERVICES, ACCOUNT HOLDER INFORMATION OR ANY INFORMATION POSTED BY AN ACCOUNT HOLDER WILL BE KEPT FROM ANY PARTICULAR INDIVIDUAL WHO EITHER HACKS OR ENGAGES IN UNAUTHORIZED ACCESS TO SUCH CONTENT OR INFORMATION OR IS MISTAKENLY GRANTED ACCESS BY US OR THROUGH THE SERVICES.
7.2 Limitations; Waivers of Liability.
a) DISCLAIMER OF INDIRECT DAMAGES. YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICES UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THE STOWK PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICES, INCLUDING, BUT NOT LIMITED TO: (I) LOSS OF PROFITS, DATA, USE; (II) LOST, STOLEN OR DAMAGED CARGO, (III) GOOD WILL OR ANY OTHER INTANGIBLE LOSSES, WITH ANY OF THE FOREGOING RESULTING FROM (A) YOUR ACCESS TO OR USE OF, OR INABILITY TO USE, ANY OF THE SERVICES; (B) ANY CONDUCT OR CONTENT OF ANY THIRD-PARTY ON THE SERVICES; (C) ANY CONTENT OBTAINED FROM THE SERVICES; OR (D) ANY UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR SUBMISSIONS OR USER DATA.
b) NOT RESPONSIBLE FOR THIRD PARTY CONDUCT. YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE STOWK PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE STOWK PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER ACCOUNT HOLDERS OR USERS OF THE SERVICES AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF USING THE SERVICES AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. STOWK OFFERS THE SERVICES, AT LEAST IN PART, TO CONNECT SHIPPERS AND CARRIERS, BUT DOES NOT AND DOES NOT INTEND TO ACT IN ANY WAY AS A CARRIER, COURIER, FREIGHT FORWARDER, SHIPPING PROVIDER OR BROKER. IT IS UP TO THE THIRD PARTY CARRIER TO PROVIDE SHIPPING SERVICES, WHICH MAY BE SCHEDULED THROUGH THE USE OF THE SERVICES. THE STOWK PARTIES HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY SHIPPING SERVICES PROVIDED TO SHIPPERS BY SUCH STOWK PARTY CARRIERS. NONE OF THE STOWK PARTIES SHALL BE DEEMED TO BE AN AGENT OR A PARTNER OF CARRIER OR SHIPPER FOR ANY REASON. CARRIERS SHALL NOT BE DEEMED TO BE A SUBCONTRACTOR, AGENT OR EMPLOYEE OF STOWK FOR ANY REASON. STOWK DOES NOT INDEPENDENTLY ASSESS THE SUITABILITY, LEGALITY, REGULATORY COMPLIANCE, QUALITY OR ABILITY OF ANY CARRIERS, SHIPPERS, CARGO AND SHIPPING SERVICES SCHEDULED THROUGH THE USE OF THE SERVICES, AND WE MAKE NO WARRANTY REGARDING THE FOREGOING. BY USING THE SERVICES, YOU OR YOUR SHIPMENTS MAY BE EXPOSED TO SITUATIONS THAT ARE POTENTIALLY DANGEROUS, OFFENSIVE, HARMFUL, UNSAFE OR OTHERWISE OBJECTIONABLE.
c) MONETARY LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL THE STOWK PARTIES BE LIABLE TO YOU UNDER ANY CLAIM FOR MORE THAN THE LESSOR OF (I) $500, OR (II) THE AMOUNT YOU HAVE PAID US IN THE ONE HUNDRED EIGHTY (180) CALENDAR DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM.
d) FAILURE TO PAY. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID US ANY AMOUNTS IN THE ONE HUNDRED EIGHTY (180) CALENDAR DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH THE STOWK PARTIES IS TO STOP USING THE SERVICES AND TO CANCEL YOUR ACCOUNT.
e) DISCLAIMER MAY NOT BE APPLICABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THE SECTION MAY NOT APPLY TO YOU.
7.3 Indemnification. You agree to defend, indemnify, save and hold the STOWK Parties harmless from any claims, losses, damages and liabilities, including legal fees and expenses, arising out of (a) your use or misuse of the Services, or the use or misuse of or access to the Services by anyone accessing your Account, (b) any violation by you of these Terms or any breach of the representations, warranties and covenants made by you herein, (c) your use or access of any third party software or service utilized in connection with the Services, (d) your violation of any applicable laws or any infringement by you, or any third party using your Account or acting on your behalf, of any intellectual property, real property, privacy or other right of any third party, or (e) any intentional misconduct or negligence by you in using the Services. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify the STOWK Parties and you agree to cooperate with our defense of these claims. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. You agree that the provisions in this paragraph will survive any termination of your Account or of the Services.
8.1 General. If a dispute arises between you and us, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and STOWK agree that we will resolve any claim or controversy at law or equity that arises out of these Terms or use of our Services (a “Claim”) in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution by emailing Customer Support at firstname.lastname@example.org. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation. Other than those matters listed in Section 8.2, you and STOWK agree to seek resolution of the dispute only through arbitration of that dispute in accordance with the terms of this Section 8, and not litigate any dispute in court. Arbitration means that the dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
8.2 Exclusions from Arbitration. YOU AND STOWK AGREE THAT ANY CLAIM FILED BY YOU OR BY US IN SMALL CLAIMS COURT OR BY US RELATED TO PROTECTION OF OUR OR ANY OF OUR LICENSOR’S INTELLECTUAL PROPERTY ARE NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION 8.
8.3 RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER IN THIS SECTION 8, YOU MUST NOTIFY US IN WRITING WITHIN THIRTY (30) DAYS OF THE DATE THAT YOU FIRST ACCEPT THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO: email@example.com AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, (3) YOUR USERNAME, AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH US THROUGH ARBITRATION.
8.4 Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND STOWK SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.
8.5 Initiation of Arbitration Proceeding; Selection of Arbitrator. If you or STOWK elect to resolve your dispute through arbitration, the party initiating the arbitration proceeding must initiate it with the American Arbitration Association (“AAA”). The terms of this Section 8 govern in the event they conflict with the rules of the arbitration organization selected by the parties.
8.6 Arbitration Procedures. Because the Services provided to you by us concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, applicable federal or state law may also apply to the substance of any disputes. For claims of less than $75,000, the AAA’s Consumer Arbitration Rules shall apply; for claims over $75,000, the AAA’s Commercial Arbitration Rules and relevant fee schedules for non-class action proceedings shall apply. The AAA rules are available at adr.org or by calling 1-800-778-7879. 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 binding and final, 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. Notwithstanding the foregoing, in no event will we be liable to you for any of your attorney fees.
8.7 Location of Arbitration. You or STOWK may initiate arbitration in Sacramento, California.
8.8 Severability. If any clause within this Section 8 (other than the Class Action Waiver clause of Section 8.4) is found to be illegal or unenforceable, that clause will be severed from this Section 8 and the remainder of this Section 8 will be given full force and effect. If the Class Action Waiver (Section 8.4) clause is found to be illegal or unenforceable, this entire Section 8, except for this Section 8.8, will be unenforceable and the dispute will be decided by a court and IN THAT INSTANCE, YOU AND STOWK EACH WAIVE AND AGREE TO WAIVE ANY RIGHT TO TRIAL BY JURY, TO THE EXTENT ALLOWED BY LAW.
8.9 Survival. This Section 8 shall survive any termination of the Terms.
10.3 Assignment. We may assign any of our rights or delegate any of our obligations under these Terms, in whole or in part, to any person or entity at any time without your consent. You may not assign or delegate any rights or obligations under these Terms without our prior written consent, and any purported assignment or delegation in violation of this Section 10.3 is null and void.
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10.7 Equitable Remedies. You acknowledge that the rights granted and obligations made under these Terms to STOWK are of a unique and irreplaceable nature, the loss of which shall irreparably harm us and which cannot be replaced by monetary damages alone, so that we shall be entitled to seek injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Services, exploitation of any advertising or other materials issued in connection therewith or exploitation of the Services or any content or other material used or displayed through the Services and agree to limit your claims to claims for monetary damages, limited by Section 8.2.
10.8 Force Majeure. STOWK shall not be liable for any delay or failure to perform resulting from causes outside our reasonable control, including, without limitation, any failure to perform hereunder due to unforeseen circumstances or cause beyond our control, such as acts of God, war, terrorism, pandemics, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, shortages of transportation facilities, fuel, energy, labor or materials.