1. ACCEPTANCE OF TERMS
Backflip, Inc. (“we”, “us,” and “Backflip”) provides technology-enabled services, including the website at https://www.backflip.com, any Mobile Apps (as defined below), and other related software, content, and services, including all versions and upgrades thereto (collectively, the “Services”). This Terms of Service (this “TOS”) contains the terms and conditions that govern your access to and use of the Services and is an agreement between you or the business you represent and Backflip. Backflip may, at its discretion, update this TOS at any time. You can access and review the most current version of this TOS at the URL for this page or by clicking on the “Terms of Service” link within the Services, or as otherwise made available by Backflip.
As used in this Agreement, “you” means the user (if registering for or using the Services as an individual), or the business employing the user (if registering for or using the Services as a business) and any of its Affiliates. “Affiliates” means, with respect to any entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with that entity.
PLEASE REVIEW THIS TOS CAREFULLY. BY REGISTERING FOR AN ACCOUNT (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) OR OTHERWISE ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THIS TOS, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS TOS, YOU MAY NOT ACCESS OR USE THE SERVICES.
THIS TOS REQUIRES FINAL AND BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THIS TOS, OR YOUR ACCESS TO OR USE OF THE SERVICES, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THIS TOS, AND YOU AGREE THAT ANY SUCH CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 13 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
You represent and warrant that you: (a) are of legal age to form a binding contract; (b) have the right, authority, and capacity to agree to and abide by this TOS; and (c) are not a person barred from using the Services under the laws of any applicable jurisdiction. THE SERVICES ARE NOT INTENDED FOR USERS UNDER THE AGE OF 18, AND SUCH USERS ARE EXPRESSLY PROHIBITED FROM SUBMITTING ANY PERSONAL DATA OR USING ANY ASPECT OF THE SERVICES, AND BY TAKING SUCH ACTIONS YOU AGREE, REPRESENT, AND WARRANT THAT YOU ARE 18 YEARS OF AGE OR OLDER.
- (a)Grants. Subject to and conditioned on your compliance with this TOS, Backflip hereby grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable license solely to use the Services only for the purposes intended by the Services. Your access to and use of the Services must further comply in all material respects with all usage guidelines posted by Backflip. You hereby grant Backflip a royalty-free, non-exclusive, worldwide right and license for the duration of your original and derivative intellectual property rights to use any and all of your: trademarks, services marks, trade names, or logos (the “Marks”); copyrightable works under the United States Copyright Act; product information; data; and materials and other items or information provided or made available by you or your Affiliates to Backflip or its Affiliates (collectively, the “Content”) for the purpose of providing and improving the Services, including rights to extract, compile, aggregate, synthesize, use, and otherwise analyze all or any portion of the Content, and to sublicense the foregoing rights to Backflip's Affiliates and service providers; provided, however, that Backflip will not alter any of your Marks from the form provided by you (except to re-size to the extent necessary in connection with the Services).
- (b)Mobile Apps. Backflip may make available mobile software applications for access to and use of certain components of the Services (collectively, “Mobile Apps”). Your access to and use of Mobile Apps is subject to and governed by this TOS. If any Mobile App is downloaded by you from the iTunes App Store (each, an “iOS Mobile App”), your use of such iOS Mobile App is further subject to your compliance in all material respects with the terms and conditions of the Usage Rules set forth in the iTunes App Store Terms of Service. This TOS is between you and Backflip only, and not with Apple Inc. ( “Apple”) or any other app store provider, and Apple is not responsible for iOS Mobile Apps and the contents thereof; however, Apple and Apple's subsidiaries are third-party beneficiaries of this TOS with respect to iOS Mobile Apps.
- (c)Trademarks. You may not use the Backflip names, brands, trademarks, service marks and logos that Backflip makes available on the Services (“Backflip Marks”). Backflip claims trademark protection over all such Backflip Marks and you will not use the Backflip Marks except as expressly authorized herein. You will not remove or alter the Backflip Marks or any proprietary notices on the Services. The Backflip Marks may not be included in or as part of any registered corporate name, any other logo, or service or product name. You may not create any derivative works of the Backflip Marks or use the Backflip Marks in a manner that creates or reasonably implies an inaccurate sense of endorsement, sponsorship, or association with Backflip. You will not otherwise use business names or logos in a manner that can mislead, confuse, or deceive any third party. All use of the Backflip Marks and all goodwill arising out of such use, will inure to Backflip's benefit.
4. PROPRIETARY RIGHTS
The Services provided to you hereunder or available to you through the Services are licensed, not sold, and Backflip retains and reserves all rights not expressly granted in this TOS. You acknowledge and agree that, as between you and Backflip, Backflip and its licensors owns all rights, title and interest (including all intellectual property rights) in the Services and all data, content, and other materials within the Services. The Services are protected by U.S. and international copyright and other intellectual property laws and treaties. Backflip reserves all rights not expressly granted to you in this TOS.
You may not share your account or password with anyone. You are fully responsible for all activities that occur under your account. You agree to notify Backflip immediately of any unauthorized use of your account or password or any other similar breach of security. If your account remains inactive for three months or longer, Backflip reserves the right to suspend or terminate your account, with or without notice to you, and delete your content all without liability.
5. USER CONDUCT AND RESTRICTIONS
- (a)In your use of the Services, you will not:
- (i) use, reproduce, modify, adapt, create derivative works from, sublicense, publicly perform, publicly display, distribute, sell, lease, rent, make, have made, assign, pledge, transfer or otherwise grant rights to the Services, except as expressly permitted under this TOS;
- (ii) reverse engineer, disassemble, decompile, translate, or otherwise attempt to derive trade secrets, algorithms, or the source code, architectural framework, or data records, within or associated with the Services;
- (iii) interfere with or disrupt the integrity or performance of the Services, including by disrupting the ability of any other person to use or enjoy the Services;
- (iv) provide use of the Services on a service bureau, rental or managed services basis, provide or permit other individuals or entities to create Internet "links" to the Services or "frame" or "mirror" the Services on any other server, or wireless or Internet-based device;
- (v) access the Services for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Services;
- (vi) violate any applicable local, state, provincial, federal or international law or regulation, or use the Services for any illegal, unauthorized or otherwise improper purposes, including to store or transmit malicious code, or to store or transmit material in violation of third-party privacy rights;
- (vii) remove or obscure any proprietary notice that appears within the Services;
- (viii) impersonate any person or entity, including Backflip personnel, or falsely state or otherwise misrepresent your affiliation with Backflip, or any other entity or person;
- (ix) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Services;
- (x) take any action that imposes an unreasonable or disproportionately heavy load on the Services or its infrastructure; or
- (xi) use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the Services; or download, reproduce, or archive any substantial portion of the Services.
- (b)You will not: upload, post, email, store, transmit, or otherwise make available any content that:
- (i) is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or otherwise objectionable;
- (ii) may not be made available under any law or under contractual or fiduciary relationships (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement);
- (iii) infringes any patent, trademark, trade secret, copyright, or other proprietary right of any party;
- (iv) consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages, or any other form of solicitation;
- (v) contains software viruses or any other code, files or programs designed to interrupt, destroy or limit the functionality of any software or hardware;
- (vi) contains infringing, libelous, or otherwise unlawful or tortious material; or
- (vii) consists of information that you know or have reason to know is false or inaccurate.
- (c)Backflip's failure to enforce any of these restrictions or guidelines shall not act as a waiver for any future enforcement, will not be considered a breach of this TOS by Backflip, and does not create a private right of action for any other party.
6. SALE TERMS
- (a)Listing of Products. In order to use the Services in connection with the Backflipapproved products that you offer for sale (“Products”), you must link or otherwise provide Backflip with access to, pursuant to Backflip's instructions, your accounts on Backflip-approved third party marketplaces on which you offer such Products for sale (each, a “Marketplace”). You hereby grant Backflip, during the Term, the right and license to access, use and modify, via the Services with respect to your linked Marketplaces, your account on any such Marketplace (each, a “Seller Account”) in order to create listings and edit pricing terms on such Marketplace with respect to your Products. You will ensure and you are solely responsible for ensuring that (i) any and all product information and pricing with respect to each Product is accurate, complete and up to date at all times, (ii) your Content, your Products (including packaging), and your offer for sale of any of the Products comply with all applicable laws and comply with Backflip's guidance, posted at:https://www.backflip.com/guidelines.
- (b)Sale of Products. Prior to listing a Product on a Marketplace using the Services, you shall ship such Product to the facility identified by Backflip on the Services or otherwise. You will be responsible for all costs incurred to ship the Products to the facility (including costs of freight and transit insurance) and Backflip will not pay any shipping costs. You are responsible for all customs, duties, taxes and other charges. In the case of any improperly packaged Products, we may return the Product to you at your sole expense or charge you an additional fee to correct any such improper packaging.
- (c)Package Requirements. You hereby acknowledge and agree to adhere to the guidance posted at:https://www.backflip.com/guidelines. Backflip may discontinue the Services to you for failure to adhere to this Section 6(c).
- (d)Fulfillment. Backflip, its Affiliates or third parties providing services to Backflip will storage and ship Products from our inventory of your Products to the shipping addresses included in valid customer orders associated with your Seller Account(s). We may ship Products together with Products purchased by the same customer from other users of Backflip, and we may ship Products separately that are included in the same order. Backflip shall track inventory of the Products while in storage but will not be required to physically mark or segregate Products from other inventory stored in the same facility. Backflip may move Products among facilities. If there is a loss of or damage to a Product while it is being stored by us, we may compensate you in accordance with our own guideless and otherwise dispose of the Product, and you will, at our request, provide us a valid tax invoice for the compensation paid to you. At all other times you will be solely responsible for any loss of, or damage to, any Products. If we confirm receipt of delivery of a Product at our facilities, such confirmation shall not be deemed to: (i) indicate or imply that the Product is free of loss or damage; (ii) indicate or imply that the correct number of Products has been received; or (iii) waive, limit or reduce any of our rights under this TOS.
- (e)Right to Reject. Backflip, its service providers and its personnel reserve the right to refuse, hold or return a package at any time and for any reason.
- (f)Device Data. As between Backflip and you, it is your sole responsibility to (i) wipe all data and restrictions from a device, (ii) log out of all services and applications, and (iii) clear all passwords from the device before delivery to Backflip.
- (g)Returns. You will be responsible for and will accept and process any and all returns, refunds or adjustments for any Products sold in a Transaction. In no event will a return of any Product require Backflip to refund any Fees paid in connection with such Product. You may also request a return of Products not yet sold in a Transaction but already shipped to and received by Backflip by contacting Backflip and requesting such return. You shall be solely responsible for any and all costs associated with any such return.
- (h)Termination of Services. Backflip reserves the right at any time to terminate the use of its Services (or any portion thereof) with or without notice. Reasons for termination may include and are not limited to users who have: (i) attempted to sell stolen property using the Services; (ii) displayed inappropriate behavior or are otherwise hostile towards Backflip employees or contractors; (iii) failed to honor any Transactions; (iv) created multiple accounts in order to attempt to circumvent our user authentication processes; or (v) have otherwise attempted to abuse the Services.
- (i)Verification. We may at any time require you to provide any information we request to verify your identity, including financial, business or personal information. You agree to update your account on the Services promptly upon any change.
- (j)No Endorsement. We do not, directly or indirectly, at any time endorse, recommend, or guarantee any Marketplace, Product or business and any and we shall not be responsible for any disputes or liability regarding or arising from any of the foregoing. The terms and conditions governing your use of any Marketplace shall be between you and such Marketplace.
- (a)Payment. Backflip shall charge a monthly storage fee, as communicated to you by Backflip or posted by Backflip on the Services, and the greater of either (i) a percentage of sale price of each Product sold in a Transaction, as communicated by Backflip or posted by Backflip on the Services, or (ii) a minimum fee of $3.00 per Product sold in a Transaction (collectively, the “Fees”). You hereby authorize Backflip to charge your credit card on file for all applicable Fees that have become due and payable. If Backflip chooses to bill or invoice you for Fees, you shall pay Backflip any and all Fees due within thirty (30) days from your receipt of any such bill or invoice. If you fail to pay any past due bill or invoice, Backflip may revoke or suspend your access to the Services until such time as you bring your account completely current. Backflip may charge interest on all past due invoices at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower. If you are delinquent in your payments for three (3) consecutive months, you hereby agree that we may and we reserve the right to, upon written notice to you and in our sole discretion, take any and/or all of the following actions, as applicable: (i) modify these payment terms to require full pre-payment of Fees (both currently contracted and in the future), or require other assurances to secure your payment obligations hereunder; (ii) take possession and title of, and sell or otherwise use or commercialize, the Products; (iii) dispose of any Products stored in Backflip's facilities at the time; and (iv) suspend or terminate your use of the Services and this TOS, in our discretion.
- (b)Taxes. All Fees exclude any and all taxes and similar fees now in force, enacted or imposed in the future on any Transaction or delivery of the Services, including any sales, use or value added taxes, goods and services tax, consumption tax, customs duties or similar charges, but excluding withholding taxes and taxes solely based on your net income (collectively, “Taxes”), and you shall be responsible for payment of all such taxes, duties and charges, and any related penalties and interest arising from the payment of such amounts. If you are legally required to withhold any amounts to be paid to us, you will deduct such taxes from the amount otherwise owed, pay the tax to the appropriate taxing authority, and provide to us on a timely basis properly executed certificates, receipts or other documentation as evidence of such tax payment to the taxing authority, sufficient to permit us to establish our right to a credit for such taxes against our income tax liability. You shall provide Backflip with such assistance as we shall reasonably request in connection with any application by us to qualify for the benefit of a reduced rate of withholding taxation under the terms of any applicable income tax treaty
If you elect to provide or make available to Backflip any suggestions, comments, ideas, improvements or other feedback relating to the Services (“Feedback”), Backflip shall own and be free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in your Feedback in any form and any medium (whether now known or later developed), without credit or compensation to you.
9. DEALINGS WITH ADVERTISERS AND OTHER THIRD PARTIES
You shall indemnify and hold Backflip and its affiliates, and each of their officers, directors, employees, agents, personnel, partners and licensors (collectively, “Backflip Parties”) harmless from and against all losses, damages, costs, liabilities, and expenses, including reasonable attorneys' fees, to extent resulting from or arising out of any third party claim, demand, or action due to (a) Content you provide to Backflip; (b) your violation of the rights of any third party; (c) your provision of inaccurate or untrue information to Backflip; (d) the contents or the insufficient or improper packaging, labeling or marking of a package; (e) your Products, including the offer, sale, refund, cancellation, return or adjustments thereof and the use of any Marketplace in connection therewith, (f) any personal injury, death (to the extent the injury or death is not caused by Backflip), or property damage relating to your items and/or use of the Services; (g) your Taxes and duties or the collection, payment or failure to collect or pay your Taxes or duties, or the failure to meet tax registration obligations or duties; (h) your violation of this TOS, any law or regulation, or any rights (including intellectual property rights) of another party; (i) your failure to (i) wipe all data and restrictions from a device, (ii) log out of all services and applications, and (iii) clear all passwords from a device before selling such device; or (j) your use of the Services, except as expressly permitted in this TOS.
11. DISCLAIMER OF WARRANTIES
- (a)YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BACKFLIP PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, WE DISCLAIM ANY DUTIES OF A BAILEE OR WAREHOUSEMAN, AND YOU WAIVE ALL RIGHTS AND REMEDIES OF A BAILOR (WHETHER ARISING UNDER COMMON LAW OR STATUTE OR OTHERWISE), RELATED TO OR ARISING OUT OF ANY POSSESSION, SOTRAGE OR SHIPMENT OF YOUR PRODUCTS BY US, OUR AFFILIATES, OR ANY OF OUR OR THEIR CONTRACTORS OR AGENTS.
- (b)BACKFLIP PARTIES MAKE NO WARRANTY OR REPRESENTATION THAT: (i) THE SERVICES WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, OR ERROR-FREE; OR (iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICES WILL BE ACCURATE, RELIABLE, CURRENT, OR COMPLETE.
- (c)ALL CONTENT MADE AVAILABLE THROUGH THE SERVICES IS MADE AVAILABLE FOR INFORMATIONAL PURPOSES ONLY. YOU ARE SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL CONTENT BEFORE TAKING OR OMITTING ANY ACTION.
- (d)IF A DISPUTE ARISES BETWEEN YOU AND A CUSTOMER OF YOURS AND/OR A PURCHASER OF YOUR ITEMS, YOU HEREBY RELEASE THE BACKFLIP PARTIES FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
- (e)THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS AND YOU MAY HAVE WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. ANY SUCH WARRANTY EXTENDS ONLY FOR THIRTY (30) DAYS FROM THE EFFECTIVE DATE OF THIS AGREEMENT (UNLESS SUCH LAW PROVIDES OTHERWISE).
12. LIMITATION OF LIABILITY
- (a)BACKFLIP PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA OR GOODWILL, OR COST OF COVER, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS, OR FINANCIAL LOSS, EVEN IF BACKFLIP PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL BACKFLIP PARTIES' TOTAL LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THIS TOS OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICES OR CONTENT EXCEED $200.00.
- (b)THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
13. SUSPENSION AND TERMINATION
- (a)Either party may terminate this TOS at any time.
- (b)If you violate this TOS, Backflip may, with or without notice to you, immediately suspend or terminate your access and use of the Services.
- (c)Backflip reserves the right at any time to modify, suspend, or discontinue the Services (or any portion thereof) with or without notice, and Backflip shall not be liable to you or any third party for any such modification or discontinuance;
- (d)Upon termination of this TOS for any reason: (i) Backflip, in its sole discretion, may remove and discard your Content and information; (ii) you will immediately cease your use of the Services; (iii) you will request a return of your Products pursuant to Section 6(f), and (iv) any provision that, by its terms, is intended to survive the expiration or termination of this TOS shall survive such expiration or termination. Further, you agree that that Backflip shall not be liable to you or any third party for any termination of your account or access to the Services.
14. GOVERNING LAW
This TOS shall be governed by and construed and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws and the laws of the State of Texas, without regard to conflict of laws principles. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this TOS, regardless of the states in which the parties do business or are incorporated.
15. BINDING ARBITRATION AND CLASS ACTION WAIVER
- (a)ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THIS TOS AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF YOUR CLAIMS ARE WITHIN THE COURT'S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
- (b)The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA's rules are available at https://www.adr.org/. Payment of all filing, administration and arbitrator fees shall be governed by the AAA's rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that such hearing shall be conducted in Austin, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
- (c)WE EACH AGREE THAT ALL CLAIMS SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR OTHER SIMILAR PROCESS (INCLUDING ARBITRATION). IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
- (d)Notwithstanding anything to the contrary, you and Backflip may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect its intellectual property rights, whether in aid of, pending, or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 13.
- (e)If Backflip implements any material change to this Section 13, such change shall not apply to any Claim for which you provided written notice to Backflip before the implementation of the change.
16. LEGAL COMPLIANCE; INSURANCE
- (a)You represent and warrant that you will comply with all applicable foreign, federal, state, and local laws, rules and regulations, including without limitation, U.S. export laws and import and use laws of the country where Licensed Material is delivered or used and you are not: (a) located in a country that is subject to a U.S. Government embargo, or designated by the U.S. Government as a “terrorist supporting” country; and (b) listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.
- (b)If the gross proceeds from your Transactions exceed $10,000 during any month during the Term, or if otherwise reasonably requested by Backflip, then within thirty (30) days thereafter, you will maintain at your expense throughout the remainder of the Term, commercial general, umbrella or excess liability insurance with limits that are not less than one million dollars ($1,000,000) per occurrence and in aggregate covering liabilities caused by or occurring in conjunction with the operation of your business and which name Backflip and its assignees as additional insureds. At Backflip's request, you will provide us certificates of insurance confirming the foregoing requirements.
17. U.S. GOVERNMENT ENTITIES
This section applies to access to or use of the Services by a branch or agency of the United States Government. The Services includes “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualifies as “commercial items” as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in this TOS with respect to the such items, and any access to or use of the Services by the United States Government constitutes: (i) agreement by the United States Government that that such items are “commercial computer software” and “commercial computer software documentation” as defined in this section; and (ii) acceptance of the rights and obligations herein.
18. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
If you believe that your work has been made available through the Services in a way that constitutes copyright infringement, please provide Backflip's Agent for Notice of Copyright Claims the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) a description of the material that you claim is infringing and where that material may be accessed within the Services; (d) your address, telephone number and email address; (e) a statement by you that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement from you that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, please contact Backflip's Agent for Notice of Copyright Claims. Backflip's Agent for Notice of Copyright Claims can be reached as follows:
Agent for Notice of Copyright Claims
548 Market St., PMB 80813
San Francisco, CA 94104-5401
19. CALIFORNIA USERS & RESIDENTS
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting such unit in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
20. GENERAL PROVISIONS