420socialspot Commercial Terms
These Commercial Terms (and any related Supplemental Terms) form a legally binding contract between you and 420socialspot if the business you represent is located in the United States. If you are located outside the United States, your use of the Site or Services for commercial purposes is only permitted to the extent set forth in a separate written agreement between 420socialspot or its applicable affiliate and you.
Please note: Section 15 of these Commercial Terms governs disputes between us, and contains an arbitration clause and class action waiver that requires you and 420socialspot to resolve all disputes with each other on an individual basis through final and binding arbitration. Please read these terms carefully. Capitalized terms used and not otherwise defined herein shall have the meaning set forth in the 420socialspot Terms. All references to the word “you” or “your” herein shall mean both you individually and any third party entity you are acting on behalf of.
1. Scope of Services; Invoices
The 420socialspot Products are generally made available to our customers as a monthly bundled software services package (the “Monthly Package”) as set forth on the customer invoice (the “Invoice”) sent by 420socialspot to you promptly following your request for services and each month thereafter, with optional add-on services that may be available for an additional charge depending on the Monthly Package you select (any such services, “Add-On Services”). The Invoice will also set forth the monthly package prices for the Monthly Package and any Add-On Services you request for such month (in the aggregate, the “Total Monthly Packages Price”). The start date for any such Monthly Package (or Add-On Services, as applicable) shall be the first date on which 420socialspot begins to provide the services thereunder. Monthly Packages, Add-On Services, and the related prices for such Monthly Packages and Add-On Services, are subject to change by 420socialspot as provided herein.
The Total Monthly Packages Price is based on the then-prevailing market price for the Monthly Package at the time of payment. We reserve the right to adjust any of the Monthly Packages in our sole discretion at any time, provided that you will receive at least 72 hours’ prior written notice (such notice to be provided via email) prior to any such changes. In the event the price for your Monthly Package changes, we will adjust the price for your Monthly Package to the new price in your next monthly billing cycle.
3. Compliance with Law
You represent and warrant that your access or use of 420socialspot Products for business or commercial purposes complies with all applicable federal, state, provincial, and local laws, statutes, ordinances, rules, and regulations of any jurisdiction throughout the world (“Applicable Law”).
In addition to and without limiting the requirements about who can use the 420socialspot Products under our 420socialspot Collective Terms of Service, if you are located in a country that is subject to embargo under the laws of the United States (or under similar laws applicable to you) you may not engage in commercial activities with respect to the 420socialspot Products unless authorized by Applicable Law. If you are on the U.S. Treasury Department’s list of Specially Designated Nationals (or an equivalent list), you may not engage in commercial or business activities with respect to the 420socialspot Products. You also may not access or use the 420socialspot Products if you are prohibited from receiving products, services, or software from us under Applicable law.
4. Representations, Warranties and Covenants
You represent, warrant and covenant that during the term of your use of any 420socialspot Products (a) you have the authority, power and right to enter into and agree to the 420socialspot Collective Terms of Service applicable to you and to perform your obligations therein, (b) if you are acting on behalf of a legal entity, such legal entity is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it was organized, (c) the 420socialspot Collective Terms of Service applicable to you constitute a valid and binding obligation enforceable against you in accordance with its terms, and the performance by you of your obligations under the 420socialspot Collective Terms of Service will not violate any other agreement to which you are a party, (d) all information provided to us (including the representations and warranties provided herein and any information submitted in connection with your application to utilize the 420socialspot Products (including but not limited to licensing information)) or otherwise published on our Site by you is and will be true, correct and complete and, if at any time any such information becomes, or if you later learn that any such information is or was, false or misleading or otherwise not true, correct and complete, then you will immediately take remedial measures to correct such information and cure such breach, (e) you are not in violation, in any respect, of any Applicable Law and are not (and will not be) conducting any of your businesses or operations in violation, in any respect, of any Applicable Law, including the obligation to pay tips to delivery and other workers, if any, and you will not take any action that is likely to result in 420socialspot breaching its obligations under Applicable Law, (f) you will promptly respond to any consumer, patient, or caregiver (“User”) complaints in a professional manner and will act in accordance with the terms of the 420socialspot Collective Terms of Service in connection with any dispute between one or more Users and yourself (each, a “User Dispute”), and (g) you will maintain valid and active licenses, authorizations, permits and registrations required for any sale, transportation, distribution, dispensation and delivery of cannabis or cannabis-related products and any other commercial cannabis activities performed by you (each a “License” and collectively, “Licenses”) in all jurisdictions in which you conduct such cannabis activities. Without limiting the foregoing, Without limiting the foregoing, if you are located in the United States, you represent, warrant and covenant that you will not engage in any activity deemed a federal enforcement priority under the James Cole August 2013 Guidance Regarding Law Enforcement (widely known as the Cole Memorandum) (which requirement applies notwithstanding the 2018 rescission of the 2013 Cole memorandum regarding cannabis enforcement priorities). Without limiting the foregoing, if you are located in Canada, you represent, warrant and covenant that you conduct (and will conduct) your businesses and operations in strict accordance with the Cannabis Act, SC 2018 c.16 (the “Cannabis Act”), its regulations and all applicable provincial legislation, and without limiting the foregoing representation, warranty and covenant, you further represent, warrant and covenant that you do not, and will not (i) distribute or participate in the distribution of marijuana to minors, (ii) participate in revenue from the sale of marijuana going to criminal enterprises, gangs and cartels, (iii) divert marijuana from provinces and territories where it is legal under Canadian law in some form to other jurisdictions, (iv) participate in any Cannabis Act-authorized marijuana activity that is being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity, (v) use violence or the use of firearms in the cultivation and distribution of marijuana, (vi) commit or endorse drugged driving and does not exacerbate other adverse public health consequences associated with marijuana use, (vii) grow, produce, sell or distribute marijuana in violation of the Cannabis Act or any other applicable law, or (viii) otherwise violate the Cannabis Act or any other rules or regulations promulgated thereunder.
You also represent, warrant and covenant that any offers or advertisements that customers may redeem at your business (“Promotions”), Intellectual Property, or any other information or other materials that you provide to us or any of our affiliates in connection with the services provided by us or otherwise (collectively, the “Business Materials”), will (a) be true, correct and complete, (b) not contain any material which violates our content guidelines or which is otherwise unlawful, defamatory or obscene, or which infringes or violates any third-party rights (including any Intellectual Property rights or privacy or publicity rights) or which may encourage a criminal offense or otherwise give rise to civil liability and (c) comply with all Applicable Law (including all applicable privacy and data protection laws and regulations and laws related to Promotions). You further represent, warrant and covenant to us that you are and will continue to be solely responsible for the creation and development of all Business Materials. The term “Promotions” shall include any discount, contest, sweepstakes, coupon or other promotion appearing on or promoted by you through the Site. We reserve the right to reject or remove any Business Materials at our sole discretion without notice, and to alter any Business Materials to conform to technical specifications. All Promotions to be posted on the Site are subject to the review and approval of 420socialspot’s moderation staff or other moderation technology (in their sole and absolute discretion). You must honor your Promotions as posted on the Site. Should it come to 420socialspot’s attention that you are engaging in false advertising, bait and switch, or any other unsavory or fraudulent practice, 420socialspot will be within its discretion to suspend or remove you from offering Promotions or from the Site entirely.
You further represent, warrant and covenant to us that you will not, and will not authorize or induce any other person or party, to: (a) generate any automated, fraudulent or otherwise invalid impressions, inquiries, reviews or other actions on or with respect to the Site; (b) use any automated means or form of scraping or data extraction to access, query or otherwise collect any of our content and/or reviews from the Site, except as expressly permitted by us or (c) use any of our trademarks or other Intellectual Property in any manner without our prior written consent. All rights not expressly granted to you hereunder are reserved by us.
You hereby covenant that you will not provide any Personal Information to 420socialspot or the Site other than (1) any personal data of your principals to the extent required in connection with the contractual relationship between us, and (2) if you use 420socialspot Orders or 420socialspot Store for business or commercial purposes, to the extent expressly permitted by the 420socialspot Orders Supplemental Terms or 420socialspot Store Supplemental Terms, as applicable. “Personal Information” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of that natural person.
5. Licenses of Intellectual Property
As described in the “Licensing and Intellectual Property” section in our 420socialspot Terms, any Content that you share, post, or upload to the Site or otherwise make available on the Site or in connection with your use of the 420socialspot Products constitutes User Content. For any access or use of the 420socialspot Products for business or commercial purposes, that license applies to Content someone acting on your behalf shares, posts, uploads to the Site or otherwise makes available on the Site or in connection with the use of any 420socialspot Product. For the avoidance of doubt, such license applies to Content shared by your service providers, including your point-of-sale service providers and loyalty service providers.
Without limiting the licenses granted under the 420socialspot Terms, you hereby grant 420socialspot a worldwide, nonexclusive, sub-licensable license with respect to all Intellectual Property (including but not limited to your name, likeness, and logo) and materials you submit to 420socialspot in connection with your use of the 420socialspot Products, any other services provided to you by 420socialspot or any of its affiliates, any other products sold to you by 420socialspot or any of its affiliates, or otherwise (collectively, the “Business IP”) to use such Business IP (i) in connection with providing access to the 420socialspot Products and facilitating their use and displaying your Business IP on the Site, (ii) in connection with creating aggregated data sets, metadata or any other derivative works for the use of 420socialspot or any of its affiliates or partners, and (iii) in connection with 420socialspot’s promotional or advertising efforts.
You also will ensure that you own or have secured all rights necessary to grant the licenses and rights you (or someone acting on your behalf) grant to us under the 420socialspot Collective Terms of Service, including permission to display, distribute and deliver your content within 420socialspot Products.
420socialspot reserves all right, title and interest in and to all intellectual property rights, as these terms are understood under United States and Canadian law, that are displayed on the Site, incorporated in the Site, or otherwise are owned, licensed, provided to or used by 420socialspot or any of its affiliates (collectively, the “420socialspot Intellectual Property”). For the avoidance of doubt, the 420socialspot Intellectual Property shall include all metadata or compilation data generated from the Site. You shall acquire no right, title or interest in or to any of the 420socialspot Intellectual Property as a result of your use of the 420socialspot Products.
6. Confidential Information
During the period you use any 420socialspot Products for business or commercial purposes and for three years following the last day any Confidential Information is disclosed to you, you (a) shall not use any information concerning us or any of our affiliates that we identify as being confidential or proprietary or that should reasonably be understood by you, because of legends or other markings, the circumstances of disclosure, or the nature of the information itself, to be confidential or proprietary to 420socialspot or any of our affiliates (collectively, “Confidential Information”) other than to the extent necessary to exercise your rights or perform your obligations under and in accordance with the 420socialspot Collective Terms of Service, and (b) shall keep confidential and not publish or otherwise disclose to any third party any Confidential Information, except in the case of both clauses (a) and (b) to the extent: (i) such disclosure or use is expressly permitted by the 420socialspot Terms, Commercial Terms or Supplemental Terms or (ii) such Confidential Information is required to be disclosed pursuant to Applicable Law or in response to a valid order of a court of competent jurisdiction or other governmental or regulatory body; provided, however, that prior to you disclosing any such Confidential Information pursuant to this clause (ii), you shall first give written notice to us, and you shall give us a reasonable opportunity to quash such order or obtain a protective order against the disclosure of such Confidential Information. For the avoidance of doubt, Confidential Information includes (I) all information set forth in any Pricing Addendum and/or customer invoice, including but not limited to your package prices, listing position, the amount and type of fees payable in connection with 420socialspot Products, and any terms and conditions contained therein, and (II) any software application programming interface keys provided to you by 420socialspot or any of our affiliates. Confidential Information does not include any information that: (a) was publicly known at the time of our communication thereof to you; (b) becomes publicly known through no action or fault of yours; (c) was in your possession free of any obligation of confidentiality at the time of our communication thereof; (d) is developed by you independently of, and without reference to, any of our Confidential Information; or (e) is rightfully obtained by you from third parties authorized to make such disclosure without restriction.
7. Advertising or Publicity
You shall not use the name, likeness, logo, trademarks, or any other patents, inventions, designs, processes, copyrights, trade secrets or any other intellectual property rights as those terms are understood under United States law and Canadian law (collectively, “Intellectual Property”) of us or any of our affiliates in public releases, advertising or otherwise without our prior written approval (which may be withheld in our sole discretion). You agree not to purport to be endorsed or affiliated with us and cannot refer to yourself as a part of us.
We have the right to subcontract any of the services provided to you to a third party.
9. Additional Disclaimer
In addition to the express disclaimers of warranties set forth in the 420socialspot Terms, 420SOCIALSPOT SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, OR GUARANTEES AS TO UPTIME, CAPACITY OR FUNCTIONALITY OF (I) THE SITE, (II) ANY MOBILE OR APPLICATION BASED VERSIONS OF THE SITE OR (III) THE 420SOCIALSPOT PRODUCTS, OR FOR THE PERFORMANCE, QUALITY AND RESULTS OF THE SITE AND/OR SERVICES FOR YOUR BUSINESS. YOU ARE NOT ENTITLED TO ANY DAMAGES, OFFSETS OR REDUCTIONS IN FEES AS A RESULT OF ANY DOWNTIME, INTERRUPTION, OR FAILURE OF THE SITE OR THE 420SOCIALSPOT PRODUCTS OR ANY SERVICES PROVIDED BY 420SOCIALSPOT OR ITS AFFILIATES. YOU ACKNOWLEDGE AND AGREE THAT THE SITE AND SERVICES ARE PROVIDED TO YOU ON AN “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS.
This indemnification provision supersedes the indemnification provision of the 420socialspot Terms to the extent you use any of the 420socialspot Products for a business or commercial purpose.
You agree to indemnify, defend, and hold 420socialspot and its affiliates (and their respective its owners, directors, managers, officers, partners, employees, independent contractors, agents, and successors and assigns of itself or its affiliates) harmless from and against any and all losses, damages, liabilities, claims, actions, judgments, awards, penalties, fines, costs and expenses (including but not limited to attorneys’ fees and court costs), known and unknown, suspected and unsuspected, disclosed and undisclosed arising out of or relating to: (i) your use or misuse of the Site or any of the 420socialspot Products; (ii) your User Content; (iii) your breach or violation of the 420socialspot Collective Terms of Service; (iv) your violation of Applicable Laws, (v) your products or services or the provision thereof to any Users or your other customers, and any User Disputes; (vi) any death or personal injury of any person on your premises or otherwise in connection with your products or services; (vii) the gross negligence or willful misconduct of you or any of your owners, officers, directors, managers, employees, contractors, subcontractors, attorneys, agents and representatives (“Personnel”), including any illegal, unauthorized, misleading or fraudulent activity thereof, and (viii) any taxes attributable to your use of the Site or Services (other than taxes with respect to the net income of 420socialspot).
420socialspot will notify you of any such claim for which 420socialspot seeks indemnification hereunder; provided, that the failure to provide such notice shall not relieve you of your obligation to provide indemnification hereunder. 420socialspot reserves the right, at your expense, to assume the exclusive defense and control of any such matter for which you are required to indemnify us or any other indemnitee hereunder; provided, that 420socialspot may elect to require you to assume control of the defense of and settlement of any such claim at your sole cost and expense.
You agree to cooperate with our defense of such claims. In the event 420socialspot elects to require you to assume control of such claim, you will employ counsel acceptable to 420socialspot , and you shall not settle such claim without 420socialspot's prior written consent.
You agree that any breach of the 420socialspot Collective Terms of Service by any of your Personnel or any person that such Personnel directs shall be deemed to be a breach of the 420socialspot Collective Terms of Service by you.
11. Limits on Liability
In addition to and without limiting the scope of the “Limitation of Liability” section in our 420socialspot Terms, you agree that we are not responsible for the actions, services, content, or data of third parties and you release us, our directors, officers, employees, and agents from any claims and damages, known or unknown, arising out of or in any way connected with any claim you have against any such third parties. TO THE FULLEST EXTENT PERMITTED BY LAW, 420SOCIALSPOT SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR (I) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES OF ANY NATURE WHATSOEVER, EVEN IF WE WERE APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING; (II) TORT DAMAGES UNLESS RESULTING FROM OUR INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE; OR (III) EQUITABLE REMEDIES OR INJUNCTIVE RELIEF UNLESS CONTRARY TO PUBLIC POLICY. TO THE FULLEST EXTENT PERMITTED BY LAW, THE MAXIMUM AGGREGATE AMOUNT OF OUR LIABILITY TO YOU FOR ANY CLAIMS ARISING OUT OF OR RELATED TO OUR PROVISION OF THE SERVICES OR PERFORMANCE (OR NONPERFORMANCE) OF ANY OF OUR OBLIGATIONS IS LIMITED TO THE TOTAL AMOUNT OF FEES YOU HAVE PAID TO US IN THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE ALLEGED LIABILITY.
12. Prohibited Activities; LIQUIDATED DAMAGES
YOU HEREBY AGREE THAT YOU ARE PROHIBITED FROM USING THE SITE, ANY 420SOCIALSPOT PRODUCT OR ANY SERVICES OF 420SOCIALSPOT TO (A) MARKET, PROMOTE OR OTHERWISE LIST ON THE SITE ANY THIRD PARTY WEBSITE, MOBILE APPLICATION OR OTHER BUSINESS OR SERVICE NOT REQUIRED IN PROVIDING YOUR PAYMENT PROCESSING OR ORDERING OF YOUR PRODUCTS OR SERVICES, WHICH PROVIDE DISPENSARY, CANNABIS RETAILER, DELIVERY SERVICE OR BRAND LISTING SERVICES OR PROVIDES OTHER MARKETING OR ADVERTISING SERVICES WHICH ARE OTHERWISE SIMILAR TO ANY OF THE SOCIAL MEDIA SERVICES PROVIDED BY 420SOCIALSPOT OR ITS AFFILIATES OR (B) MARKET, PROMOTE OR OTHERWISE LIST ON THE SITE ANY THIRD PARTY BUSINESS WHICH IS NOT YOUR BUSINESS (THE “PROHIBITED SERVICES”), PROVIDED THAT NOTHING HEREIN IS INTENDED TO PROHIBIT YOU FROM LISTING YOUR OWN WEBSITE, ORDERING/PAYMENT LINKS OR SOCIAL MEDIA ON THE SITE. FOR THE AVOIDANCE OF DOUBT AND WITHOUT LIMITATION, THE PROHIBITED SERVICES SHALL INCLUDE (I) THIRD PARTY MOBILE APPLICATIONS OR WEBSITES WHICH PROVIDE ADVERTISING, MARKETING OR OTHER SERVICES TO DISPENSARIES, CANNABIS RETAILER, DELIVERY SERVICES, BRANDS OR OTHER BUSINESSES AND (II) THIRD PARTY MOBILE APPLICATIONS OR WEBSITES WHICH LIST BRANDS, DISPENSARIES, CANNABIS RETAILERS OR DELIVERY SERVICES OR OTHER BUSINESSES OR MENUS ON BEHALF OF ANY OF THE FOREGOING. YOU AGREE THAT IT WOULD BE DIFFICULT TO ESTIMATE THE AMOUNT OF 420SOCIALSPOT’S DAMAGES IN THE EVENT THAT BUSINESS VIOLATES THIS PROVISION. ACCORDINGLY, THE PARTIES AGREE THAT IN THE EVENT OF ANY BREACH OF THIS PROHIBITION BY YOU, 420SOCIALSPOT SHALL BE ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT OF TEN THOUSAND DOLLARS ($10,000) PER MONTH IN WHICH SUCH BREACH OCCURS OR IS CONTINUING TO OCCUR. THE PARTIES HEREBY AGREE THAT SUCH DAMAGES ARE FAIR AND REASONABLE IN LIGHT OF THE SUBSTANTIAL ECONOMIC HARM TO 420SOCIALSPOT AND LOSS OF BUSINESS IN THE EVENT OF SUCH BREACH, AND YOU AGREE THAT YOU SHALL NOT CHALLENGE THE AMOUNT OF SUCH DAMAGES OR CONTEND SUCH DAMAGES ARE A PENALTY PROVISION UNDER STATE, PROVINCIAL, OR FEDERAL LAW. WE AND YOU HEREBY AGREE THIS AMOUNT IS A GENUINE ESTIMATE OF THE DAMAGES SUFFERED BY 420SOCISALSPOT IN THE EVENT OF A BREACH OF THIS SECTION 12 AND THE PAYMENT OF SUCH LIQUIDATED DAMAGES SHALL BE WITHOUT PREJUDICE TO 420SOCIALSPOT’S RIGHT TO REMOVE THE PROHIBITED SERVICES OR LISTING FROM THE SITE.
We may need to update these Commercial Terms from time to time, including to accurately reflect the access or uses of the 420socialspot Products for business or commercial purposes, and so we encourage you to check them regularly for any updates. By continuing any access or use of any 420socialspot Products for business or commercial purposes after we have made updates to these Commercial Terms, you agree to be bound by them. If you do not agree to the updated terms, please stop all access or use of our 420socialspot Products for business or commercial purposes.
14. Conflicts and Supplemental Terms
If there is a conflict between the Commercial Terms and the 420socialspot Terms, the Commercial Terms shall govern with respect to your access and use of the 420socialspot Products for business or commercial purposes to the extent of the conflict.
The supplemental terms and policies set forth below (the “Supplemental Terms”) may also apply to your use of certain 420socialspot Products. If those Supplemental Terms conflict with the Commercial Terms or 420socialspot Terms, the Supplemental Terms will govern with respect to your use of those 420socialspot Products to the extent of the conflict. To the extent you use a 420socialspot Product for business or commercial purposes, your use of such 420socialspot Product shall be subject to the following Supplemental Terms:
- If you maintain a business listing on 420socialspot.com your use shall be governed by the Listing and Placement Services Supplemental Terms, which can be found at https://40socialspot.com/legal.
- If you use 420socialspot Orders, your use shall be governed by the 420socialspot Marketplace Supplemental Terms, which can be found at https://420socialspot.com/legal.
- If you use 420socialspot Marketplace, your use shall be governed by the 420socialspot Marketplace Supplemental Terms, which can be found at https://420socialspot.com/legal.
- If you place self-serve premium listings on 420socialspot.com, your use shall be governed by the Self-Serve Premium Listing Supplemental Terms, which can be found at https://420socialspot.com/legal.
- If you access or use 420socialspot APIs, You agree to comply with any API documentation and policies provided by 420socialspot to you from time to time. For the avoidance of doubt, if a third party acting on your behalf accesses or uses 420socialspot APIs, their access and use shall also be governed by such terms, and you shall be responsible for their access and use.
As with our Commercial Terms, we may make changes to the Supplemental Terms. By continuing to access or use any 420socialspot Products subject to Supplemental Terms after we update such Supplemental Terms, you agree to be bound by them.
15. Dispute Resolution & Arbitration Agreement
THIS SECTION 15 GOVERNS HOW DISPUTES BETWEEN 420SOCIALSPOT AND YOU ARE RESOLVED, AND REQUIRES THAT DISPUTES BE SUBMITTED TO BINDING INDIVIDUAL ARBITRATION. PLEASE REVIEW CAREFULLY AS IT LIMITS CERTAIN RIGHTS INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, AND THE RIGHT TO PARTICIPATE IN CLASS OR OTHER COLLECTIVE ACTIONS.
- Pre-Arbitration Dispute Resolution and Notification__. In the event a dispute arises out of or relates to the 420socialspot Collective Terms of Service, you and 420socialspot (each, individually a “Party” and collectively, the “Parties”), in good faith, agree to first attempt to resolve the dispute between yourselves through informal direct discussions prior to the initiation of arbitration. If, after a good faith effort to negotiate, one Party feels the dispute has not and cannot be resolved informally, the Party intending to pursue arbitration agrees to notify the other Party via email prior to initiating the arbitration.
- Agreement to Arbitrate. In the event the Parties cannot resolve a dispute through direct informal discussions, the Parties mutually agree that any dispute, claim, counterclaim, or controversy arising out of or relating to the 420socialspot Collective Terms of Service — including the applicability, breach, termination, validity, enforcement or interpretation thereof — or the use of the Site and/or Services (collectively, “Disputes”) will be settled by binding individual arbitration (the “Arbitration Agreement”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to a Dispute, the Parties mutually agree that the arbitrator will decide this issue.
- Exceptions to Arbitration Agreement. The Parties mutually agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) any claim related to actual or threatened infringement, misappropriation or violation of a Party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; and (ii) any claim seeking emergency injunctive relief based on exigent circumstances. Filing of claims under this Section 15.3 shall not be deemed a waiver of either Party’s right under the Arbitration Agreement to have all other Disputes determined by individual arbitration in accordance with the terms of the Arbitration Agreement.
- Arbitration Rules and Governing Law. This Arbitration Agreement shall be governed by the U.S. Federal Arbitration Act. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA Commercial Arbitration Rules and/or other AAA arbitration rules determined to be applicable by AAA (the “AAA Rules”) then in effect, except as modified here. The arbitration will be heard and determined by a single arbitrator. The arbitrator’s decision in any such arbitration will be final and binding upon the Parties and may be enforced in any court of competent jurisdiction. The Parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies. The Parties shall pay their own costs related to the arbitration, provided that in the final award, the arbitrator may apportion the costs and fees of arbitration among the Parties in such amounts as the arbitrator deems appropriate.
- Jury Trial Waiver. Both Parties acknowledge and agree that they are waiving the right to a trial by jury as to all arbitrable disputes.
- No Class Actions or Representative Proceedings. Both Parties acknowledge and agree that, to the fullest extent permitted by law, each is waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, collective action, private attorney general action, or any other representative proceeding as to all Disputes. Disputes may not be arbitrated on a class, collective or representative basis. Unless the Parties both otherwise agree in writing, the arbitrator may not consolidate or join the claims of other persons or parties, or otherwise preside over any form of class action or representative proceeding. If the “class action lawsuit” waiver or the “class-wide arbitration” waiver in this Section is held unenforceable with respect to any Dispute, then the entirety of the Arbitration Agreement will be deemed void with respect to such Dispute and the Dispute must proceed in court. If the “collective action” waiver or the “private attorney general action” waiver or the “representative proceeding” waiver in this Section 15.6 is held unenforceable with respect to any Dispute, those waivers may be severed from this Arbitration Agreement and the Parties agree that any private attorney general claims and representative claims in the Dispute will be severed and stayed, pending the resolution of any arbitral claims in the Dispute in individual arbitration.
- Severability / No Waiver. Except as provided in Section 15.6, if any provision of the Arbitration Agreement is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of the Arbitration Agreement shall continue in full force and effect.
- Survival Past Termination. Unless superseded by a later arbitration agreement between the Parties, this Arbitration Agreement will survive the cessation of your use of the 420socialspot Products.
- The 420socialspot Terms, these Commercial Terms, and other applicable Supplemental Terms make up the entire agreement between the Parties regarding your access or use of the 420socialspot Products for any business or commercial purpose, and supersede any prior agreements, whether oral or written. No statements or promises from us or any other party have been relied upon with respect to your agreement to be bound by the 420socialspot Collective Terms of Service, except as expressly set forth therein.
- If any portion of the applicable 420socialspot Collective Terms of Service is found to be unenforceable, then (except as otherwise expressly provided in such term) that portion will be severed and the remaining portion will remain in full force and effect.
- If 420socialspot fails to enforce any of the 420socialspot Collective Terms of Service, it will not be considered a waiver. Any delay or omission on the part of 420socialspot in the exercise of its strict rights hereunder will not impair those rights nor will it constitute a renunciation or waiver of those rights. All rights, remedies, undertakings, obligations and agreements contained herein shall be cumulative, and none of them shall be a limitation of any other right, remedy, undertaking, obligation or agreement of 420socialspot.
- Any amendment to or waiver of the 420socialspot Collective Terms of Service must be made in writing and signed by us (provided however, that the 420socialspot Collective Terms of Service may be updated by us as otherwise provided herein).
- You are prohibited from transferring or assigning any of your rights or obligations under the applicable 420socialspot Collective Terms of Service to anyone else without our consent (whether by operation of law or otherwise, and whether whole or in part), and any purported transfer or assignment in violation of this restriction shall be void ab initio. If you undergo any change in ownership (whether by sale or transfer of assets or equity, by merger or otherwise), you must notify 420socialspot within 15 days and apply for assignment of your use of the 420socialspot Products to the new owner. All of our rights and obligations under the 420socialspot Collective Terms of Service are freely assignable by us to an affiliate or in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise.
- The 420socialspot Collective Terms of Service do not confer any third party beneficiary rights.
- Nothing in the 420socialspot Collective Terms of Service shall prevent us from complying with Applicable Law.
- We reserve all rights not expressly granted to you.
- The 420socialspot Collective Terms of Service and any matters arising out of or related to the 420socialspot Collective Terms of Service will be governed by California law, without regard to its conflicts of law principles.
- Neither your consent to these 420socialspot Collective Terms of Service nor your use of any 420socialspot Product will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between 420socialspot and you.
- Unless the express context otherwise requires: (a) the words “hereof,” “herein,” and “hereunder” and words of similar import, when used in these Commercial Terms, shall refer to these Commercial Terms as a whole and not to any particular provision of these Commercial Terms; (b) terms defined in the singular shall have a comparable meaning when used in the plural, and vice versa; (c) the terms “Dollars” and “$” mean United States Dollars; (d) wherever the word “include,” “includes,” or “including” is used in these Commercial Terms, it shall be deemed to be followed by the words “without limitation”; and (e) references herein to any gender shall include each other gender.
- These 420socialspot Collective Terms of Service shall be binding upon and inure to the benefit of the permitted successors and assigns of the Parties.