Terms of Service

TERMS OF SERVICE

Effective Date: May 16, 2024

Thank you for visiting a website, application, or service provided by AllGear Digital!  Before you engage with our website, application, or services, we encourage you to read these Terms of Service, so you know what to expect when visiting and engaging with our various properties.

PLEASE READ THESE TERMS OF SERVICE (“AGREEMENT”) CAREFULLY.  THIS AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU (“USER”) AND ALLGEAR DIGITAL LLC OR THE APPLICABLE AFFILIATE OF ALLGEAR DIGITAL LLC (INCLUDING IDENTIFIED ON ALLGEARDIGITAL.COM/BRANDS/ ) (“COMPANY,” “WE,” OR “US”).

IMPORTANT NOTICE – ARBITRATION AGREEMENT AND CLASS ACTION WAIVER: BY AGREEING TO BE BOUND BY THESE TERMS OF SERVICE, YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING ARBITRATION, EXCEPT FOR CERTAIN LIMITED TYPES OF DISPUTES DESCRIBED IN SECTION 6 BELOW. YOUR AGREEMENT TO ARBITRATION MEANS YOU ARE GIVING UP THE RIGHT TO GO TO COURT AND THE RIGHT TO A TRIAL BY JURY, AND INSTEAD, DISPUTES WILL BE DECIDED BY A NEUTRAL ARBITRATOR. YOU ALSO AGREE THAT ALL DISPUTES BETWEEN US, WHETHER IN COURT OR IN ARBITRATION, WILL BE BROUGHT ONLY ON AN INDIVIDUAL BASIS AND YOU ARE WAIVING YOUR RIGHT TO BRING OR PARTICIPATE IN A CLASS ARBITRATION OR CLASS ACTION. PLEASE REVIEW SECTION 6 OF THIS AGREEMENT FOR FURTHER DETAILS.

By accessing or using any website with an authorized link to this Agreement (each a “Website” or “Property”, and collectively, the “Properties”), registering an account, or accessing or using any content, information, services, features or resources available or enabled via the Properties (collectively with the Properties, the “Services”), or clicking on a button or taking another action to signify your acceptance of this Agreement, you: (1) agree to be bound by this Agreement and any future amendments and additions to this Agreement as published through the Services; (2) represent you are of legal age in your jurisdiction of residence to form a binding contract; and (3) represent that you have the authority to enter into this Agreement personally and, if applicable, on behalf of any company, organization or other legal entity on whose behalf you use the Services.  Except as otherwise provided herein, if you do not agree to be bound by this Agreement you may not access or use the Services.

Your use of the Services is also subject to any additional terms, terms of use, conditions and policies that we separately post on the Services (“Supplemental Terms”) which are incorporated by reference into this Agreement.  Some of the specialized features and tools accessible through our Services are provided by third-party companies pursuant to their own separate terms of service (“Third-Party Terms”) that differ from ours.  By using such third-party features and tools, you agree that your relationships with the third-party service providers will be governed by the applicable Third-Party Terms.

The Company reserves the right to modify this Agreement or its policies relating to the Services at any time, effective upon posting of an updated version of this Agreement or any applicable Supplemental Terms on the applicable Services.  You should regularly review this Agreement.  Your continued use of the Services after any such changes constitutes your agreement to such changes.

  1. Registration; Other Services

1.1          Registration Data.  When applying for or registering an account for any of the Services, including, but not limited to, subscribing or gaining access to a Website (“Account”), you agree to provide accurate, current and complete information (the “Registration Data”) and to promptly update your Registration Data in the event of a change of such Registration Data, including, but not limited to, name change, credit, debit card or payment account information, e-mail address or postal address, as necessary.  You agree that you may not register for an Account if you are barred or otherwise suspended from using the Services under any applicable law or by the Company.  You further agree that you will not maintain more than one Account for the same Company service at any given time.  You will be responsible for all activities that occur under your Account.  You agree not to share your Account or password with anyone.  You further agree to notify the Company immediately of any unauthorized use of your password or any other breach of the security of your Account.

1.2.        Sponsored/Affiliate Content.  Certain portions of the Services may include content that contains links to third party web sites for which Company may receive compensation from the operator of the third-party web site by virtue of your clicking to or making a purchase on that site.  As described more fully in Section 3.4. below, by clicking on these links you understand and agree that you are leaving a Company Property and visiting a website that is not controlled by us.

1.3.        Lead Generation.  Certain portions of the Services may provide you the opportunity to be contacted by third party suppliers and others in order to obtain particular services.  By providing your contact information in connection with these Services, you understand and expressly consent to be contacted by these third parties using the contact information you provide and that we shall have no responsibility or liability whatsoever in connection with any products, work estimates or the provision of services by these third parties.

1.4.        Sweepstakes and Contests.  All sweepstakes, contests, and other promotions conducted on or through the Services will be governed by the official rules applicable to that promotion, which, unless otherwise noted, will be incorporated by reference into this Agreement.

1.5.        Removal of Accounts.  Company reserves the right to remove or reclaim any usernames at any time and for any reason.  You agree that you have no ownership or other property interest in your Account and that all rights in and to your Account are owned by the Company.

1.6.        Company’s Privacy Policy.  Our information collection and use policies with respect to the privacy of the Registration Data and any other data provided by you or collected by Company are set forth in Company’s Privacy Policy which is incorporated herein by reference into this Agreement.

  1. User Content

2.1.        Responsible Party for Content.  You understand, acknowledge, and agree that all user generated content posted (that is, non-Company content), displayed, or performed on or through the Services is the sole responsibility of the party from whom such content originated.  This means that each User is entirely responsible for all content that that User makes available through the Services, or otherwise provides to the Company, whether online or offline, and whether or not solicited by the Company (“User Content”).  User Content shall include your submission of any ideas, suggestions, documents, and/or proposals to Company.  Company has no obligation to pre-screen any User Content.  You agree to use all User Content and interact with any other User at your own risk.  Without limiting the foregoing, Company reserves the right in its sole discretion, but does not have an obligation, to pre-screen, review, refuse, or remove any content.  Company shall have the right to remove any content that violates this Agreement or is otherwise objectionable as determined by Company.  Company reserves the right at all times to disclose any information as necessary to satisfy any law, regulation, or government request, or to edit, refuse to post, or to remove any information or materials, in whole or in part, that in Company’s sole discretion are objectionable or in violation of this Agreement, Company’s policies, or applicable law.

2.2.        Ownership of Your Content.  Company does not claim ownership of any User Content you make available on the Services (“Your Content”).  However, when you as a User post or publish Your Content on or in the Services, you represent that you have all of the necessary rights to grant Company the license set forth in Section 2.3.  Except with respect to Your Content, you agree that you have no right or title in or to any other content that appears on or in the Services.

2.3.        License to Your Content.  Subject to any applicable Account settings that you select or license agreement you may be asked to agree to when posting or submitting Your Content on or though the Services, you grant Company, its agent(s) and supplier(s), and anyone else authorized by Company, an irrevocable, non-exclusive, perpetual, worldwide, royalty-free right and license to use, copy, display, publicly perform, transmit, modify, publish, distribute, make derivative works of, sublicense, and otherwise commercially and non-commercially exploit and use Your Content (in whole or in part) in any manner or medium now existing or hereafter developed (including print and electronic storage) and for any purpose.  The foregoing grant includes the right to exploit any proprietary rights in Your Content, including, but not limited to, under copyright, trademark, trade secret, patent or other intellectual property laws that exist in any relevant jurisdiction, and a waiver of any “moral rights” in Your Content.  In connection with the exercise of these rights, you grant Company, and anyone authorized by Company, the right to identify you as the author of Your Content by name, email address, or username, as Company deems appropriate.  You will not receive any compensation of any kind for the use of Your Content.  Note that other Users may search for, see, use, modify, and reproduce any of Your Content that you submit to any “public” area of the Services.  Accordingly, you should be careful and selective about the personal information that you disclose about yourself and others, and in particular, you should not disclose sensitive, embarrassing, proprietary, or confidential information in any public area of the Services.

2.4.        Other Restrictions on User Conduct.  You agree not to use the Services for any purpose prohibited by this Agreement or by applicable law.  You shall not (and shall not permit any third-party to) (a) take any action or (b) make available any content on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Company’s prior written consent, such as embedding links, contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of Company or misrepresents your affiliation with any other person or entity; or (vi) that violates any other rules or regulations that we may post in connection with a particular feature of the Services.  You alone are responsible for the content and consequences of any of your activities.

  1. Ownership of and License to Use Company Services

3.1.        Use of the Services.  Except with respect to User Content, Company and its suppliers own or are licensees of the rights, title, and interest required for the Services (including, without limitation, all materials published or available on the Services such as text, photographs, images, illustrations, designs, audio clips, video clips, “look and feel,” metadata, data, or compilations).  The Services (including, without limitation, all materials published or available on the Services such as text, photographs, images, illustrations, designs, audio clips, video clips, “look and feel,” metadata, data, or compilations) are protected by copyright and other intellectual property laws throughout the world.  Subject to this Agreement, Company grants you a limited license to use the Services solely for your personal non-commercial purposes.  Non-commercial use does not include the use of the Services without prior written consent from Company in connection with: (1) the development of any software program, model, algorithm, or other generative AI tool, including, but not limited to, training or using the Services in connection with the development or operation of a machine learning or artificial intelligence (AI) system (including any use of the Services for training, fine tuning, or grounding the machine learning or AI system or as part of retrieval-augmented generation); or (2) providing archived or cached data sets containing the Services to another person or entity.  Any future release, update or other addition to the Services shall be subject to this Agreement.  Company, its suppliers and service providers reserve all rights not granted in this Agreement.

3.2.        Trademarks.  Company’s stylized name and other related trademarks, graphics, logos, service marks, and trade names used on or in connection with the Services are the trademarks of Company and may not be used without permission in connection with any third-party products or services.  Other trademarks, logos, service marks and trade names that may appear on or in the Services are the property of their respective owners.  You will not remove, alter, or obscure any copyright notice, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.

3.3.        Restrictions on Use of Services.  You agree not to do any of the foregoing:

  1. you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host, or otherwise commercially exploit the Services or any portion of the Services;
  2. you shall not frame or use framing techniques to enclose any trademark, logo, or Services (including images, text, page layout or form) of Company;
  3. you shall not use any metatags or other “hidden text” using Company’s name or trademarks;
  4. you shall not modify, translate, adapt, merge, make derivative works or services of, circumvent, decrypt, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law;
  5. 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,” harvest, or download data from the Services (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);
  6. you shall not use any data from the Services for the development of any software program (including but not limited to training a machine learning or artificial intelligence (AI) system);
  7. you shall not access the Services to build a similar or competitive website, application, or service;
  8. you shall not, except as expressly stated herein, copy, reproduce, distribute, republish, download, display, post, or transmit any part of the Services in any form or by any means;
  9. you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services or use the Services in violation of any third party’s intellectual property or other proprietary or legal rights;
  10. you shall not use the Services in violation of any applicable law;
  11. you shall not attempt to gain unauthorized access to other computer systems through the Services;
  12. you shall not interfere with or attempt to interfere with the proper functioning of the Services or use the Services in any way not expressly permitted by this Agreement; and
  13. you shall not attempt to harm our Services or use the Services in a manner that could interfere with any party’s use or enjoyment of the Services, including but not limited to, by violating or attempting to violate any related security features, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host, or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services. Any unauthorized use of the Services immediately terminates the licenses granted by Company pursuant to this Agreement.

3.4.        Third-Party Links.  The Services may contain links to third-party services such as third-party websites, applications, or ads (“Third-Party Links”).  When you click on such a link, we will not warn you that you are about to or have left the Services.  Company does not control and is not responsible for Third-Party Links.  Company provides these Third-Party Links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to them, or any content, products or services accessible through such links.  Your use of all Third-Party Links is at your own risk.

  1. Indemnification and Limitation of Liability

4.1.        Indemnification.  You agree to indemnify and hold Company, its parents, subsidiaries, and affiliates, and the officers, directors, employees, agents, representatives, partners, suppliers, and licensors of each (collectively, the “Company Parties”) harmless from any damages, losses, costs, liabilities, and expenses (including reasonable attorneys’ fees and costs) relating to or arising out of any claims concerning: (a) the violation of the rights of any third party, including intellectual property rights, by Your Content; (b) your misuse of the Services; (c) your violation of this Agreement; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules, or regulations.  Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Company in asserting any available defenses.

4.2.        Disclaimer of Warranties and Conditions.  YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES AND ANY PRODUCTS OFFERED THROUGH THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES AND ANY PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES CONCERNING THE AVAILABILITY, PLAYABILITY, DISPLAYABILITY, ACCURACY, PRECISION, CORRECTNESS, THOROUGHNESS, COMPLETENESS, USEFULNESS, OR CONTENT OF THE SERVICES OR INFORMATION ON THE SERVICES, AND THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES AND PRODUCTS.  THE COMPANY PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.  THE COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (A) THE SERVICES OR ANY PRODUCTS WILL MEET YOUR REQUIREMENTS OR (B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.  IF YOU RELY ON ANY DATA OR INFORMATION OBTAINED THROUGH OUR PRODUCTS OR SERVICES, YOU DO SO AT YOUR OWN RISK.  YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS FROM YOUR USE OF SUCH DATA OR INFORMATION.  OUR PRODUCTS AND SERVICES ARE PROVIDED WITH THE UNDERSTANDING THAT COMPANY AND ITS USERS ARE NOT ENGAGED IN RENDERING LEGAL, MEDICAL, COUNSELING, OR OTHER PROFESSIONAL SERVICES OR ADVICE.  OUR PRODUCTS AND SERVICES ARE NOT A SUBSTITUTE FOR PROFESSIONAL SERVICES OR ADVICE.  PLEASE SEEK THE ADVICE OF PROFESSIONALS, AS APPROPRIATE, REGARDING THE EVALUATION OF ANY SPECIFIC INFORMATION, OPINION, ADVICE OR OTHER CONTENT, INCLUDING BUT NOT LIMITED TO FINANCIAL, HEALTH, OR LIFESTYLE INFORMATION, OPINION, ADVICE, OR OTHER CONTENT.  CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES.  IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

4.3.        Disclaimer of Certain Damages.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY PARTIES SHALL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUE OR FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF DATA, PRODUCTION, OR USE, BUSINESS INTERRUPTION OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

4.4.        Cap on Liability.  UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT THE COMPANY PARTIES ARE LIABLE TO YOU EXCEED THE GREATER OF (A) THE TOTAL AMOUNT ACTUALLY PAID TO COMPANY BY YOU DURING THE TWELVE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, OR (B) ONE HUNDRED DOLLARS ($100).

4.5.        Basis of the Bargain.  THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICES.

4.6.        Exclusions.  THE LAWS OF SOME STATES DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.  IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE OTHER RIGHTS.

4.7.        Survival.  You agree that the provisions in this section will survive any termination of your Account, this Agreement, or your access to the Services.

  1. General Provisions.

5.1.        Disclaimer.  The information available through the Services is provided solely for informational purposes on an “as is” basis at User’s sole risk. Company makes no guarantees as to the accurateness, quality, or completeness of the information, and Company shall not be responsible or liable for any errors, omissions, or inaccuracies in the information or for any user’s reliance on the information. Users are solely responsible for verifying the information as being appropriate for user’s personal use.

5.2.        Termination.  At its sole discretion, Company may modify, suspend, change, or discontinue the Services, or may modify, suspend, change, or terminate your access to the Services, for any reason or no reason, with or without notice to you and without liability to you or any third party.  In addition to restricting, suspending, or terminating your access to the Services, for any reason or no reason, Company reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, or injunctive redress.

5.3.        Procedure for Making Claims of Copyright Infringement.  If you believe content posted on the Services infringes your copyright rights, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Services of the material that you claim is infringing; (4) your address, telephone number, and e-mail address; (5) a written statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.  Correspondence to our Copyright Agent regarding notice of claims of copyright infringement should be addressed to: AllGear Digital LLC, Attn: DMCA Copyright Agent, 8605 Santa Monica Blvd, Suite 30337, West Hollywood, CA 90069, or by email to [email protected].  Company maintains a policy to terminate in appropriate circumstances the Service use privileges of all repeat infringers of copyright rights.  Please Note: The Copyright Agent has no responsibility for and will not respond to Usage/Reprint permission requests or Subscriber/Customer Service inquiries.

5.4.        Electronic Communications.  The communications between you and Company use electronic means, whether you visit the Services or send Company e-mails, or whether Company posts notices on the Services or communicates with you via e-mail.  For contractual purposes, you (1) consent to receive communications from Company in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications and documents that Company provides to you electronically will have the same legal effect that such communications or documents would have if they were set forth in “writing.”  The foregoing sentence does not affect your statutory rights.

5.5.        Notice.  Where Company requires that you provide an e-mail address to receive notices and for other purposes, you are responsible for providing Company with your most current e-mail address.  In the event that the last e-mail address you provided to Company is not valid, or for any reason is not capable of delivering to you any notices required/permitted by this Agreement, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice.  You may give notice to Company at the following address: AllGear Digital LLC, Attn: Legal, 8605 Santa Monica Blvd, Suite 30337, West Hollywood, CA 90069.  Such notice shall be deemed given when received by Company by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.

5.6.        Governing Law and Exclusive Venue.  THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW OR OTHER 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 Company agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state courts in Hennepin County, Minnesota, or federal courts located in the District of Minnesota.

5.7.        International Users.  The Services are controlled and offered by Company from its facilities in the United States of America.  Company makes no representations that the Services are appropriate or available for use in other locations.  Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.

5.8.        Entire Agreement.  This 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.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.  If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.  Company 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, pandemics, strikes or shortages of transportation facilities, fuel, energy, labor or materials.  This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent.  Any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

5.9.        Questions, Complaints, Claims, Permissions.  If you have any questions, complaints, or claims with respect to the Services, please contact us using the contact information available on the Services.  We will do our best to address your concerns.  For usage and/or reprint permission requests, please email [email protected].

5.10.     California Consumer Complaints.  If you are a California resident, in accordance with California Civil Code §1789.3, you may contact us via the Contact form on the applicable Website in order to resolve a complaint regarding the Services or to receive further information regarding use of the Services. You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd, Suite S-202, Sacramento, CA 95834, or by telephone at (800) 952-5210.

  1. WAIVER OF CLASS ACTIONS; ARBITRATION

6.1.        Binding Arbitration.  You and Company agree that, except for i) claims related to intellectual property, and ii) any claims that may be brought in small claims court where the amount in controversy is properly within the jurisdiction of such court (collectively, “Excluded Claims”), any controversy or claim arising out of or relating to this Agreement, or your use of any of the Services, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory (the “Covered Claims”), will be resolved by binding, individual arbitration (the terms and conditions in this Section 6, this “Arbitration Agreement”). The parties further agree that the determination of the scope, enforceability, or applicability of this Arbitration Agreement, including, but not limited to any claim that all or any part thereof of this Arbitration Agreement is void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment) will be resolved exclusively by final and binding arbitration in accordance with this Arbitration Agreement. YOUR AGREEMENT TO ARBITRATION MEANS THAT FOR ALL COVERED CLAIMS, YOU ARE GIVING UP YOUR RIGHT TO FILE A LAWSUIT IN COURT AND THE RIGHT TO A TRIAL BY JURY.  INSTEAD, YOU WILL HAVE A HEARING BEFORE A NEUTRAL ARBITRATOR. The Federal Arbitration Act and federal arbitration law apply to this Arbitration Agreement.

6.2.        WAIVER OF CLASS ACTIONS. YOU AND COMPANY AGREE THAT EACH PARTY MAY BRING DISPUTES RELATING TO BOTH COVERED CLAIMS AND EXCLUDED CLAIMS AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING, WITHOUT LIMITATION, A FEDERAL OR STATE CLASS ACTION LAWSUIT OR A CLASS ARBITRATION.  If there is a final judicial determination that applicable law precludes enforcement of this paragraph’s limitations as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court. The parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies. This subsection does not prevent you or us from participating in a class-wide settlement of claims. Notwithstanding the foregoing, an arbitrator may consolidate more than one person’s claims if Company provides consent to such consolidation in writing. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief or request for relief (such as a request for public injunctive relief) and all appeals have been exhausted or the decision is otherwise final, then the parties agree that such a claim or request for relief shall be decided by a court only after all other claims and requests for relief are arbitrated.

6.3.        Conduct of Arbitration; Governing Rules; Informal Resolution.

  1. Arbitrations for any disputes between you and us relating to the Covered Claims will be administered by the Judicial Arbitration and Mediation Services, Inc. (“JAMS”) in accordance with its most-current JAMS Streamlined Arbitration Rules & Procedures (“JAMS Rules”), and conducted by a single, neutral arbitrator. For more information about arbitration, JAMS, and the arbitration process, please consult the JAMS web site at jamsadr.com.
  2. All issues are for the arbitrator to decide, except that issues relating to the scope, application, and enforceability of the arbitration provision–including whether any claims are Covered Claims or Excluded Claims within the meaning of this provision–are for the court to decide. As stated in Section 5.6., Minnesota law applies to any arbitration under this section, but the parties acknowledge that the Federal Arbitration Act and federal arbitration law governs the interpretation and enforcement of this Arbitration Agreement.
  3. Prior to initiating arbitration for a Covered Claim, both parties agree that they will provide written notice of the potential claim to the opposing party setting forth: (1) the factual and legal basis for the claim; (2) contact information for the potential claimant and their counsel, if any; and (3) the remedies sought, including the amount of claimed monetary damages (the “Notice”). Such written notice shall be provided on an individualized basis. Following receipt of the Notice by the opposing party, the parties agree to make a good faith effort for at least 60 days to resolve the claim before resorting to more formal means of resolution, including, without limitation, arbitration or any court action. To provide notice of a claim to Company, write to [email protected], or AllGear Digital LLC, Attn: Legal, 8605 Santa Monica Blvd, Suite 30337, West Hollywood, CA 90069.
  4. The aforementioned informal dispute resolution process is a prerequisite and condition precedent to commencing any formal dispute resolution proceeding. The parties agree that any relevant limitations period and filing fees or other deadlines will be tolled while the parties engage in this informal dispute resolution process.
  5. Unless you and Company agree otherwise in writing, arbitration will take place by phone or videoconference, unless an in-person hearing is requested by either party. In that case, the hearing will take place in the state where you reside. To the extent this Arbitration Agreement conflicts with the JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness (the “Minimum Standards”), the Minimum Standards in that regard will apply. Payment of all filing, administration, and arbitrator fees will be governed by the JAMS Rules, except that if the arbitrator finds at any time that a claim was filed frivolously, for purposes of harassment, or otherwise in bad faith, then the filing party will reimburse the other party for all costs and fees, including attorneys’ fees, associated with that claim.
  6. Judgment on the award rendered by the arbitrator may be entered in any federal or state court of competent jurisdiction located in the Hennepin County, Minnesota. The arbitrator may award money or equitable relief in favor of only the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To reduce the time and expense of the arbitration, the arbitrator will not provide a statement of reasons for his or her award unless requested to do so by both parties.

6.4.        Mass Arbitrations.

  1. To increase the efficiency of administration and resolution of arbitrations, in the event 25 or more similar arbitration demands (those asserting the same or substantially similar facts or claims, and seeking the same or substantially similar relief) presented by or with the assistance or coordination of the same law firm(s) or organization(s) are submitted to JAMS against Company (a “Mass Filing”), the parties agree (i) to administer the Mass Filing in batches of 10 demands per batch (to the extent there are fewer than 10 arbitration demands left over after the batching described above, a final batch will consist of the remaining demands) with only one batch filed, processed, and adjudicated at a time; (ii) to designate one arbitrator for each demand within the batch (the same arbitrator may preside over multiple demands in a batch if the relevant claimants and Company so agree); (iii) to accept applicable fees, including any related fee reduction determined by JAMS in its discretion; (iv) that no other demands for arbitration that are part of the Mass Filing may be filed, processed, or adjudicated until the prior batch of 10 is filed, processed, and adjudicated; (v) that fees associated with a demand for arbitration included in a Mass Filing, including fees owed by Company and the claimants, shall only be due after your demand for arbitration is included in a set of batch proceedings and that batch is properly designated for filing, processing, and adjudication; (vi) that the staged process of batched proceedings, with each set including 10 demands, shall continue until each demand (including your demand) is adjudicated or otherwise resolved; and (vii) to make good faith efforts to resolve each batch of demands within 180-days, failing which any of the claimants or Company may cease arbitration and file in a court of competent jurisdiction.
  2. Arbitrator selection for the demands in each batch shall be conducted to the greatest extent possible in accordance with the applicable JAMS rules and procedures for such selection, and the arbitrator will determine the location where the proceedings for each demand within a batch will be conducted. You agree to cooperate in good faith with Company and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of combined reduced fees, set by JAMS in its discretion, for each batch of demands. The parties further agree to cooperate with each other and the arbitration provider or arbitrator to establish any other processes or procedures that the arbitration provider or arbitrator believe will provide for an efficient resolution of claims. Any disagreement between the parties as to whether this provision applies or as to the process or procedure for batching shall be resolved by a procedural arbitrator appointed by JAMS. This “Batch Arbitration” provision shall in no way be interpreted as increasing the number of demands necessary to authorize class arbitration of any kind. Unless Company otherwise consents in writing, Company does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this section 12. If your demand for arbitration is included in the Mass Filing, your claims will remain tolled until your demand for arbitration is decided, withdrawn, or is settled. The parties agree that this batching provision is integral to this Section 6 insofar as it applies to a Mass Filing. If the batching provision in this Section 6.4. or the engagement of a mediator in Section 6.5. is found to be invalid, unenforceable or illegal, then the entirety of this Section 6 shall be null and void, and neither you nor Company shall be entitled to arbitrate any claim that is a part of the Mass Filing.

6.5.        Mediation Following First Batch in a Mass Filing. The results of the first batch of demands will be given to a JAMS mediator selected from a group of 5 mediators initially proposed by JAMS, with Company and the remaining claimants’ counsel being able to strike one mediator each and then rank the remaining mediators and the highest collectively ranked mediator being selected. The selected mediator will try to facilitate a resolution of the remaining demands in the Mass Filing. After the results are provided to the mediator, Company, the remaining claimants and their counsel, and the mediator will have 90 days (the “Mediation Period”) to agree on a resolution or substantive methodology for resolving the outstanding demands. If the parties are unable to resolve the outstanding demands during the Mediation Period and cannot agree on a methodology for resolving them through further arbitrations, either Company or any remaining claimant may opt out of the arbitration process and have the demand(s) proceed in a court of competent jurisdiction. Notice of the opt-out will be provided in writing within 60 days of the close of the Mediation Period. If neither Company nor the remaining claimants opt out and they cannot agree to a methodology for resolving the remaining demands through further arbitration, the arbitrations will continue with the batching process. Absent notice of an opt-out, the arbitrations will proceed in the order determined by the sequential numbers assigned to demands in the Mass Filing.

6.6.        Opt-out. You have the right to opt out and not be bound by this Arbitration Agreement by sending written notice of your decision to opt out to [email protected] with the subject line “ARBITRATION OPT-OUT.” The notice must be sent within thirty (30) days of (a) the Effective Date at the top of this page; or (b) your first use of the Services, whichever is later. Otherwise, you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of this Arbitration Agreement, you may exercise your right to a trial by jury or judge, as permitted by applicable law, but any prior existing agreement to arbitrate disputes under any prior Arbitration Agreement between you and Company will not apply to claims not yet filed regardless of when those claims may have accrued. If you opt out of this Arbitration Agreement, Company also will not be bound by it.

6.7.        For all litigation regarding Excluded Claims and any other controversy or claim for which arbitration is denied, the sole jurisdiction and venue for such litigation will be an appropriate federal or state court located in Hennepin County, Minnesota.

6.8.        All provisions of this Section 6 will survive termination of these Terms of Service, your relationship with us, and/or your account or profile.