Last Updated: September 18, 2023
Please read these Terms carefully before you start to use the Services. By accessing or using the Services in any way or by clicking to accept or agree to these Terms when this option is made available to you, you represent and warrant that: (1) you have read, understand, accept and agree to be bound and abide by these Terms; (2) you are 18 years old or older; (3) you are not already restricted from using the Services by Impala or otherwise under the laws of the United States your place of residence or any other applicable jurisdiction. If you are accepting these Terms and using the Services on behalf of a company, organization, foundation or other legal entity (each, an “Organization”), you represent and warrant that you are authorized to do so and that you have the authority to bind such entity to these Terms, in which case all references to “you” or “your” as used in these Terms will be deemed to refer to such entity. If you do not agree to these Terms, you must not access or use the SERVICES.
PLEASE NOTE THAT IF YOU ELECT TO SUBSCRIBE TO ANY FEATURE OR FUNCTIONALITY OF THE SERVICES, YOUR SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL SUBSCRIPTION PERIODS OF THE SAME DURATION AT OUR THEN-CURRENT FEE FOR SUCH SUSCRIPTION UNLESS YOU DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 5.3 (AUTOMATIC RENEWAL) BELOW.
PLEASE REVIEW SECTION 22 (ARBITRATION AGREEMENT) SET FORTH BELOW CAREFULLY, AS IT CONTAINS PROVISIONS THAT GOVERN HOW TO RESOLVE DISPUTES BETWEEN YOU AND Impala. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT IN ACCORDANCE WITH THE PROCEDURE SET FORTH THEREIN: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST Impala ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
1. Changes to the Terms
We may revise and update these Terms from time to time in our sole discretion. When changes are made, we will make a new copy of these Terms available on the Services, and we will also update the “Last Updated” date at the top of these Terms. If we make any material changes and you have registered an Account with us, we will also send an email with an updated copy of these Terms to you at the email address associated with your Account. Unless otherwise stated in such update, all changes to these Terms will be effective immediately when we post them for users without an Account, and thirty (30) days after posting for users with an Account, and will apply to all access to and use of the Services thereafter. We may require you to provide consent to the updated Terms in a specified manner before further use of the Services is permitted. Unless you reject the change(s) within thirty (30) days after the revised Terms are posted, your continued use of the Services following the posting of any revised Terms means that you accept and agree to the changes. IF YOU DO NOT AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU MUST STOP ACCESSING AND USING THE SERVICES IMMEDIATELY.
2. Accessing the Services and Account Security
We reserve the right to withdraw or amend the Services, and any service or material we provide on the Services, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Services is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Services, or the entire Services, to users.
You are responsible for ensuring that all persons who access the Services through your internet connection are aware of these Terms and comply with them.
3. Your Account
3.1. Register Your Account.
3.2. Account Information.
If you register an Account with Services, or are otherwise provided with a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge and agree that your Account is personal to you and agree not to provide any other person with access to the Services or portions of it using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. Furthermore, you are responsible for all activities that occur under your Account. You shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Services by minors. We have the right to disable, remove, or reclaim any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including without limitation if, in our opinion, you have violated any provision of these Terms, or if a third party claims that a user name violates the third party’s rights.
3.3. Access Through an SNS.
The Services may allow you to link your Account with a Third-Party Account by allowing Impala to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Impala and/or grant Impala access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Impala to pay any fees or making Impala subject to any usage limitations imposed by such third-party service providers. By granting Impala access to any Third-Party Account, you understand that Impala may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through the Service via your Account and your profile. Unless otherwise specified in this Agreement, all SNS Content is considered to be Your Content (as defined in Section 8 (Responsibility for Content)) for all purposes of these Terms. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the Services. If a Third-Party Account or associated service becomes unavailable, or our access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through the Services. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Account Settings” page of the Services. YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND Impala DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. We make no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Impala is not responsible for any SNS Content.
4. Organizational Profiles
4.1. Organizational Profiles.
A profile on the Services that contain information about an Organization (each, an “Organizational Profile”) can be created and updated on the Services (i) by Impala independently based on third-party sources or at the request of a user or a third party, or (ii) by registered users who create or claim an Organizational Profile. Each Organization is limited to one Organizational Profile. If you create or claim an Organizational Profile, you represent and warrant on an ongoing basis at all relevant times that (i) you have the authority to act on behalf of the Organization associated with or claimed through your Organizational Profile and bind such Organization to these Terms; (ii) your use of the Organizational Profile will only be conducted in your capacity as an authorized representative of the Organization; (iii) your Organization and all Content you submit via the Services complies with all applicable federal, state, local or international laws, regulations, and industry rules (collectively, “Applicable Laws”); (iv) Your Content does not infringe or misappropriate the rights of any third party; (v) all information provided by you via the Services is complete and accurate; (vi) you have all necessary licenses, rights, permissions, and clearances (including from any third party) in Your Content to use and to grant us all licenses in Your Content described in these Terms. You acknowledge and agree that, where applicable, you are responsible for providing data usage notices to and receiving consents from all users of the Services that engage with Your Content. You agree that we will determine the size, placement and positioning of Your Content on the Services, and we reserve the right to reject, disable, or remove Your Content for any reason.
4.2. User Interactions Associated with Your Organizational Profile.
You acknowledge and agree that we presume your actions and those of other users associated with your Organizational Profile are authorized and legitimate. We are not responsible for your Organizational Profile or your Account, and have no obligation (but reserve the right) to verify the scope of authority of you or any other users associated with your Organization. Your Account is tied to your role with that Organization. If your position associated with an Organization terminates, then you must (i) contact us at email@example.com to unclaim and remove your access to your Organizational Profile associated with that Organization, or (ii) if any other registered user(s) from your Organization has administrative access to the relevant Organizational Profile, contact us or such other registered user(s) having administrative access to remove your access to the relevant Organizational Profile, transfer your Organizational Profile. If you need assistance with page transfer or account deactivation, please contact us.
5. Subscription Services
We offer certain Services for which access and use is purchased or made available on a time-limited basis (each a “Subscription”). The fee for a Subscription (“Service Subscription Fee”) will be billed at the start of the Subscription and at regular intervals as designated the time you sign up for the Subscription. We reserve the right to change the timing of our billing. We reserve the right to change the Subscription pricing at any time in accordance with Section 1 (Changes to the Terms). If changes to the Subscription Fee occur that impact your Subscription, we will use commercially reasonable efforts to notify you, such as by sending an email to the email address associated with your Account. If you do not agree with such changes, you may cancel your Subscription as set forth below in this Section. We are not obligated to provide the Services to you until we accept your order by a confirmatory email, SMS/MMS message, or other appropriate means of communication.
You agree to pay all fees or charges to your Account (“Fees”) in accordance with the fees, charges and billing terms in effect at the time a Fee is due and payable. When you may a payment to us, you agree to provide us and/or our trusted third-party payment processor (currently, Stripe, Inc. and its affiliates) with your payment information, and you agree that we and/or our trusted third-party payment processor are authorized to immediately invoice your Account for all Fees due and payable to us and that no additional notice or consent is required. You agree that you will keep your payment information accurate and current and will immediately notify us of any change in your payment information. You authorize us to continue to charge the applicable method of payment following any update to your payment information. We reserve the right at any time to change our fees and billing methods in our sole discretion. Your failure to provide accurate payment information to us and/or our trusted third-party payment processor or our inability to collect payment constitutes your material breach of these Terms. All Fees and payments to Impala are final, non-cancelable and non-refundable.
5.3. Automatic Renewal.
If you elect to purchase a Subscription, your Subscription will continue and automatically renew at our then-current fee for such Subscription until terminated in accordance with this Agreement. The intervals at which your Subscription renews (i.e. monthly or annually) (each, “Subscription Period”) will be designated at the time you sign up for the Subscription and may be modified by you via your Account settings. By subscribing, you authorize us to charge the payment method designated in your Account now, and again at the beginning of any subsequent Subscription Period. Upon renewal of your Subscription, if we do not receive payment, (i) you shall pay all amounts due on your Account upon demand and/or (ii) you agree that we may either terminate or suspend your Subscription and continue to attempt to charge your designated payment method until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new Subscription Period will begin as of the day payment was received).
5.4. Free Trial.
Your Subscription may include a free trial period (“Free Trial”). At the start of each such Free Trial, you may be charged a nominal fee in order to ensure your payment information is accurate. Thereafter, you will have access to the specified Services without payment for the period specified in the offer (subject to any relevant Supplemental Terms, which may limit or condition use of the Services during your Free Trial). You may cancel a Subscription or Free Trial through the interface of the applicable Services, or if no such option is available, by contacting us here. Unless you cancel your Free Trial before the end of the Free Trial period, your Free Trial will automatically convert into a paid Subscription and you will be charged the relevant Payment for the applicable Subscription.
If you purchased your Subscription directly from us, you may cancel your Subscription by logging in and going to the “Products and billing” tab in the “Account Settings” page, selecting “Manage” for the Subscription you wish to cancel and selecting “Cancel”. If you do not wish your Account to renew automatically, or if you want to change or terminate your Subscription, you must contact us at firstname.lastname@example.org, or log in and go to the “Products and billing” tab in the “Account Settings” page. If you cancel your Subscription, you may use your Subscription until the end of your then-current Subscription Period; your Subscription will not be renewed after your then-current Subscription Period expires. However, you will not be eligible for a prorated refund of any portion of the Service Subscription Fee paid for the then-current Subscription Period.
The Fees do not include any Sales Tax (defined below) that may be due in connection with the Services provided under this Agreement. If we determine we have a legal obligation to collect Sales Tax from you in connection with these Terms, we will collect such Sales Tax in addition to the Fees. If any Services, or payments for any Services, under these Terms are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to us, you shall be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you shall indemnify us for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. If you are exempt from paying Sales Taxes, it is your responsibility to contact us and provide a valid tax exemption certificate authorized by the appropriate taxing authority and such other relevant materials as we may reasonably request. For purposes of this Section, “Sales Tax” means any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
6. Our Intellectual Property
6.1. The Services.
Except with respect to Your Content (as defined below), you agree that all right, title and interest in and to the Services and their entire Content, features and functionality (including but not limited to any and all information, computer code, software, themes, objects, text, displays, images, video and audio, and the design, selection and arrangement thereof, and methods of operation), are owned by us, our affiliates, our licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
6.2. Our Trademarks.
Our names, including but not limited to “Chario, Inc.” and “Impala”, and all related stylizations, graphics, logos, service marks, trade names, products and service names, designs and slogans are trademarks of Impala or our affiliates. Other names, logos, service marks, trade names, product and service names, designs and slogans that may appear on the Services are the trademarks of their respective owners. You must not use any of the foregoing without the prior written permission of Impala and/or the applicable owners.
6.3. Our License Grant to You.
Subject to your full and ongoing compliance with these Terms and all applicable guidelines and policies, we hereby grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Services solely for the following purposes (collectively, “Permitted Uses”):
- to learn more or exchange information about specific nonprofit organizations, specific donors of nonprofit entities, other people and organizations affiliated with nonprofit organizations or donors or the nonprofit sector more broadly, and general issues of interest to the nonprofit community;
- to investigate and connect with potential donors of nonprofit entities or for entering into other types of business relationships with such donors; and/or
- print or download Content on the Services for your own lawful, for your own lawful, personal, or internal business use and not for further reproduction, publication or distribution.
If you access or use, or permit any other person or entity to access or use, any part of the Services in breach of these Terms, your right to use the Services and all other rights granted to you in these Terms will cease immediately and you must, at our option, return or destroy any copies of the Content you have made or downloaded on or through the Services. No right, title or interest in or to the Services or any Content on the Services is transferred to you, and all right, title and interest in and to the Services and Content on the Services not expressly granted in these Terms are reserved by Impala and our licensors. Any use of the Services not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark and other laws.
7. Prohibited User Conduct
Without limiting other restrictions contained in these Terms, you agree that you will not (and will not permit any others to), under any circumstances:
- access or use any part of the Services in any way that violates any Applicable Law (including, without limitation, any laws regarding the export of data or software to and from the US or other countries);
- license, sell, rent, lease, transfer, assign, reproduce, distribute, host, or otherwise commercially exploit any part of the Services or Content;
- modify, translate, adapt, merge, prepare derivative works of, disassemble, decompile, reverse engineer or circumvent any security or authentication measures of any part of the Services or Content on the Services (except to the extent expressly permitted by Applicable Laws);
- frame or utilize framing techniques to enclose any trademark or logo located on any part of the Services or Content on the Services;
- use any metatags or other “hidden text” using Impala’s name or trademarks;
- access the Services or Content in order to build a similar or competitive website, product or service;
- exploit, harm or attempt to exploit or harm minors in any way by exposing them to inappropriate Content, asking for personally identifiable information or otherwise;
- Make Available, download, use or re-use any Content which does not comply with the Content Standards as set out below in these Terms;
- transmit, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation;
- impersonate or attempt to impersonate Impala, an Impala employee or representative, another user or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing);
- engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm Impala or users of the Services, or expose them to liability;
- access or use the Services in any manner that could disable, overburden, damage, or impair the Services or interfere with any other party’s use of the Services, including their ability to engage in real time activities through the Services;
- develop, support or use any manual or automated software, devices, or other processes (including but not limited to scripts, robots, spiders, scrapers, crawlers, avatars, data mining tools, browser plugins, add-ons or the like) to scrape, monitor, download, or copy profiles or other Content from any part of the Services;
- delete or alter any copyright, trademark or other proprietary rights notices or markings contained on or in the Services or Content on the Services;
- use any device, software or routine that interferes with the proper working of the Services;
- introduce any viruses, trojan horses, worms, logic bombs, malware, spyware, key loggers or other material which is malicious or technologically harmful;
- gain or attempt to gain unauthorized access to, interfere with, damage or disrupt any part of the Services (including but not limited to the Accounts of other users), our computer systems (including but not limited to the server on which the Services are hosted), any technical delivery systems of our providers, or any server, computer or database connected to the Services;
- attack the Services via a denial-of-service attack or a distributed denial-of-service attack; or
- otherwise access or use any part of the Services or Content on the Services in an unlawful or unanticipated manner.
For clarity, any attempt to engage any of the behaviors listed above is also prohibited. The rights granted to you in these Terms are subject to your compliance with the restrictions set forth in this Section.
8. Responsibility for Content
In these Terms, “Content” means any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials or forms of data or communication. The Services may allow users to create personal or organizational profiles, submit, post, publish, display, transmit or otherwise make available (“Make Available”) Content, and may feature any other interactive features that may allow users to Make Available Content to other users or other persons on, through, or in connection with the Services (“Interactive Services”). For clarification, any and all Content Made Available by you on, through or in connection with the Services (“Your Content”), whether before or after you accepted and agreed to these Terms, shall be subject to these Terms. You acknowledge and agree that you, and not us, are solely and fully responsible for all Your Content, including its legality, reliability, accuracy and quality, and you assume all risks associated with Your Content, including anyone’s reliance on its legality, reliability, accuracy and quality, and any risks associated with personal information you disclose. Further, you acknowledge and agree that other users, and not us, are similarly responsible for all Content that they Make Available on, through, or in connection with the Services (“User Content”).
All Your Content and User Content must comply with the Content Standards set out in these Terms.
Certain features and functionality of the Services may enable you to specify the level at which the Services restricts access to Your Content. In such cases, you are solely responsible for applying the appropriate level of access to Your Content. If you do not choose a level of access, the system may default to its most permissive setting. You agree that we retain the right to create reasonable limits on our use and storage of Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Services and as otherwise determined by us in our sole discretion.
9. Rights You Grant
9.1. License Grant to Impala.
Subject to any applicable Account setting that you select (which Account setting may or may not be available to you depending on the type of your Account and/or your Organizational Profile, as determined by us in our sole discretion), you hereby grant us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns a non-exclusive, perpetual, irrevocable, worldwide, fully-paid, royalty-free, transferable, sublicensable (through multiple tiers of sublicensees) right (including any moral rights) and license to host, use, reproduce, modify, adapt, prepare derivative works of, translate, publicly perform, publicly display, distribute, and otherwise disclose, and derive revenue or other remuneration from Your Content (in whole or in part) for the purposes of operating, improving and providing the Services and the features and Content Made Available on or through the Services to you and to our other users, without any further consent, notice and/or compensation to you or others. In addition, you hereby agree that Impala may use your names, logos, product and service names, designs, slogans and copyrighted materials on the Services, and you will not have any claim of any kind against Impala in connection with any such use.
9.2. License Grant to Other Users.
Subject to any applicable Account setting that you select (which Account setting may or may not be available to you depending on the type of your Account and/or your Organizational Profile, as determined by us in our sole discretion), you also hereby grant each user of the Services a non-exclusive, irrevocable, worldwide, fully-paid, royalty-free license to access Your Content on or through the Services and to use, reproduce, modify, perform, display, and distribute Your Content as permitted through the functionality of the Services and under these Terms.
9.3. Representations and Warranties.
You represent and warrant that:
- You own and/or have sufficient rights, consents and permissions to and in respect of Your Content to grant the licenses set forth above.
- Your profile information will be true, correct, current and complete.
- All of Your Content, whether Made Available before or after your acceptance of these Terms, does and will comply with these Terms.
You acknowledge that users or others (including off of the Services) may be able to search for, see, use, modify and/or reproduce any of Your Content that you submit to any area of the Services that is accessible by other users. Where we have made settings available, we will honor the choices you make about who can see Your Content.
We welcome you to submit any feedback, suggestions, or ideas you have about Impala and our Services (collectively “Feedback”) to us. You hereby grant us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns a non-exclusive, perpetual, irrevocable, worldwide, fully-paid, royalty-free, transferable, sublicensable (through multiple tiers of sublicensees) right (including any moral rights) and license to use, reproduce, modify, adapt, prepare derivative works of, translate, publicly perform, publicly display, distribute, and otherwise commercially or non-commercially exploit in any manner, any and all the Feedback in our sole discretion and in connection with our business, products and services, whether now known or hereinafter developed.
10. Interactions with Other Users
You are solely responsible for your interactions with other users of the Services and any other parties with whom you interact through the Services; provided, however, that we reserve the right, but have no obligation, to intercede in any disputes between you and any other users. You agree that we will not be responsible for any liability incurred as the result of your interactions with other users.
We are not responsible for and do not control User Content. We do not approve or endorse, or make any representations or warranties with respect to, User Content. You acknowledge and agree that you use all User Content and interact with other users of the Services (including off of the Services) at your own risk.
11. Monitoring and Enforcement; Termination
We may, but are not obligated to, investigate, monitor, pre-screen, remove, refuse, or review the Services and/or Content, including Your Content and User Content, at any time. You hereby irrevocably consent to such monitoring. Without limiting the foregoing, we reserve the right, but have no obligation, to:
- remove or refuse to Make Available any User Content for any or no reason in our sole discretion;
- take any action with respect to any User Content that we deem necessary or appropriate in our sole discretion, including if we believe that such User Content violates the Terms, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public or could create liability for us;
- disclose your identity or other information about you to any third party who claims that material Made Available by you violates their rights, including their intellectual property rights or their right to privacy;
- take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services; and/or
- terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of these Terms.
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone Making Available any materials on or through the Services. YOU WAIVE AND HOLD HARMLESS Impala AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY Impala/ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER Impala/SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
However, we do not undertake to review all material before it is Made Available on the Services, and cannot ensure prompt removal of objectionable material after it has been Made Available. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or Content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this Section.
12. Content Standards
These content standards apply to any and all User Content and use of Interactive Services. User Content must in their entirety comply with all applicable federal, state, local and international laws and regulations. Without limiting the foregoing, User Content must not:
- contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable;
- promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
- infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person;
- violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under Applicable Laws or that otherwise may be in conflict with these Terms;
- be likely to deceive any person;
- promote any illegal activity, or advocate, promote or assist any unlawful act;
- cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person;
- impersonate any person, or misrepresent your identity or affiliation with any person or Organization;
- involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising; or
- give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case;
13. Procedures for Making Claims of Copyright Infringement
We respect the intellectual property rights of others and expect our users to do the same. It is our policy, in appropriate circumstances and at our discretion, to disable and/or terminate the Accounts and Services of users who repeatedly infringe the copyrights or other intellectual property rights of others. In accordance with the Digital Millennium Copyright Act of 1998 (“DMCA”), the text of which may be found on the U.S. Copyright Office website at https://www.copyright.gov/legislation/dmca.pdf, we will respond expeditiously to claims of copyright infringement that comply with applicable law.
If you believe any Content accessible on or from the Services infringe your copyright, you may request removal of such Content (or access to it) from the Services by submitting written notification with the requisite information listed below (“Takedown Notice”) to our copyright agent designated below. Upon receipt of the Takedown Notice as described below, we will take whatever action, in our sole discretion, we deem appropriate, including removal of the challenged Content from the Services. If we remove or disable access to Content in response to a Takedown Notice, we may notify the user with details about the Takedown Notice so that they may submit a Counter Notice (as defined below). We may also send a complete copy of the Takedown Notice to users where appropriate.
Pursuant to the DMCA, the Takedown Notice must include substantially the following:
- Your physical or electronic signature.
- Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Services, a representative list of such works.
- Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
- Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
- A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the written notice is accurate.
- A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Our designated copyright agent to receive Takedown Notices is:
Chief Operating Officer
1000 Dean Street
Brooklyn NY 11238
If you fail to comply with all of the requirements of set forth above, your Takedown Notice may not be effective.
Please be aware that if you knowingly materially misrepresent that Content on the Services is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under the DMCA. Counter Notification Procedures:
If you believe that Content you Made Available on the Services was removed in error, you may file a counter notification with us (“Counter Notice”) by submitting written notification to our copyright agent designated above, as explained below.
Pursuant to the DMCA, the Counter Notice must include substantially the following:
- Your physical or electronic signature.
- An identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or access disabled.
- Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
- A statement under penalty of perjury by you that you have a good faith belief that the Content identified above was removed or disabled as a result of a mistake or misidentification of the Content to be removed or disabled.
- A statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the Website may be found) and that you will accept service from the person (or an agent of that person) who provided the Website with the complaint at issue.
The DMCA allows us to restore the removed Content if the party filing the original Takedown Notice does not file a court action against you within ten business days of receiving the copy of your Counter Notice.
Please be aware that if you knowingly materially misrepresent that Content on the Services was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys’ fees) under the DMCA.
14. Reliance on Content on the Services
The Content presented on or through the Services is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of any such Content. Any reliance you place on such Content is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such Content by you or any other visitor to the Services, or by anyone who may be informed of any of such Content.
Unless otherwise specifically indicated, Impala does not endorse and has no affiliation with any of the Organizations mentioned, listed in, described on or linked to via the Services, and we make no representations or warranties whatsoever with regard to those Organizations or any other Organization or person, including but not limited to the performance of goods and services provided by those sites we link.
The Services includes content provided by third parties, including materials provided by other users, bloggers and third-party licensors, syndicators, aggregators and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by us, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect our opinion. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
15. Linking to the Services and Social Media Features
You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part without our express written consent.
The Services may provide certain social media features that enable you to:
- Link from your own or certain third-party websites, to certain Content on the Services.
- Send e-mails or other communications with certain content, or links to certain Content, on the Services.
- Cause limited portions of Content on the Services to be displayed or appear to be displayed on your own or certain third-party websites.
You may use any social media features solely as they are provided by us, and solely with respect to the Content they are displayed with and otherwise in accordance with any additional terms and conditions we provide with respect to such features. Subject to the foregoing, you must not:
- Cause the Services or portions of it to be displayed, or appear to be displayed by, for example, framing, deep linking or in-line linking, on any other site.
- Link to any part of the Services other than the homepage.
- Otherwise take any action with respect to the materials on the Services that is inconsistent with any other provision of these Terms.
The Services from which you are linking, or on which you make certain Content accessible, must comply in all respects with the Content Standards set out in these Terms.
You agree to cooperate with us in causing any unauthorized framing or linking immediately to cease. We reserve the right to withdraw linking permission without notice.
We may disable all or any social media features and any links at any time without notice in our discretion.
16. Third-Party Services
If the Services contains links to other sites, applications, resources and advertisements (including banner advertisements and sponsored links) provided by third parties (collectively, the “Third-Party Services”), these links are provided for your convenience only. We have no control over such Third-Party Services nor the Contents thereof, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any Third-Party Services, you do so entirely at your own risk and subject to the terms and policies (including privacy and data gathering practices) of such other websites or destination. You should review applicable terms and policies of any Third-Party Services, and make whatever investigation you feel necessary or appropriate before proceeding to use any Third-Party Services.
17. Geographic Restrictions
We make no claims that the Services or any of its Content is accessible or appropriate outside of the United States. Access to the Services may not be legal by certain persons or in certain countries. If you access the Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
You understand that we cannot and do not guarantee or warrant that any Content available for downloading from the internet or the Services will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. YOU AKNOWLEDGE AND AGREE THAT TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES OR TO YOUR DOWNLOADING OF ANY CONTENT MADE AVAILABLE ON IT, OR ON ANY WEBSITE LINKED TO IT.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES. YOU UNDERSTAND THAT Impala MAKES NO WARRANTY THAT ANY GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. Impala MAKES NO WARRANTY REGARDING THE QUALITY OF SUCH GOODS OR SERVICES, NOR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF ANY CONTENT MADE AVAILABLE BY THIRD PARTIES ON OR THROUGH THE SERVICES.
YOU AKNOWLEDGE AND AGREE THAT TO THE FULLEST EXTENT PROVIDED BY LAW, YOUR USE OF THE SERVICES, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES IS AT YOUR OWN RISK. THE SERVICES, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. Impala, ITS AFFILIATES, LICENSORS, AND SERVICE PROVIDERS, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AND AGENTS (COLLECTIVELY, THE “Impala PARTIES”) HEREBY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NO Impala PARTY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SERVICES, THAT THE SERVICES, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
19. Limitation of Liability
19.1. Disclaimer of Certain Damages.
YOU AKNOWLEDGE AND AGREE THAT TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE Impala PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, LOSS OF USE, LOSS OF GOODWILL, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, THE SERVICES, ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OR THIRD PARTIES SERVICES, YOUR USE, OR INABILITY TO USE, THE SERVICES, ANY WEBSITES LINKED TO THEM, ANY CONTENT ON THE SERVICES OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES OR SUCH OTHER WEBSITES. THE LIMITATIONS OF THIS SECTION SHALL APPLY TO ANY THEORY OF LIABILITY (WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT OR OTHERWISE), AND WHETHER OR NOT THE PARTIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
19.2. Caps on Liability.
YOU AKNOWLEDGE AND AGREE THAT TO THE FULLEST EXTENT PROVIDED BY LAW, THE Impala PARTIES SHALL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO Impala BY YOU DURING THE THREE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; OR (B) ONE HUNDRED U.S. DOLLARS ($100). THE LIMITATIONS OF THIS SECTION SHALL APPLY TO ANY THEORY OF LIABILITY (WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT OR OTHERWISE), AND WHETHER OR NOT THE PARTIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
19.3. Exclusion of Damages.
CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
19.4. Basis of the Bargain.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
You agree to indemnify and hold harmless the Impala Parties, and their successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to any of the following: (i) Your Content; (ii) your violation of these Terms; (iii) your violation of any rights of another party, including any user; (iv) your violation of any Applicable Laws; or (v) your use of, or inability to use, the Services, its Content, or any services or items obtained through the Services. We reserve the right, at our 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 Impala Parties in asserting any available defenses. This provision does not require you to indemnify any of the Impala Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Services.
21. Governing Law and Jurisdiction
All matters relating to the Services and these Terms and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction).
Any legal suit, action or proceeding arising out of, or related to, these Terms or the Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York, although we retain the right to bring any suit, action or proceeding against you for breach of these Terms in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
22. Arbitration Agreement
22.1. Applicability of Arbitration Agreement.
Subject to the terms of this Section (the “Arbitration Agreement”), you and Impala agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services or these Terms and prior versions of these Terms, including claims and disputes that arose between you and us before the effective date of these Terms (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (i) you and Impala may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) you or Impala may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of these Terms as well as claims that may arise after the termination of these Terms.
22.2. Informal Dispute Resolution.
There might be instances when a Dispute arises between you and Impala. If that occurs, Impala is committed to working with you to reach a reasonable resolution. You and Impala agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome (“Informal Dispute Resolution”). You and Impala therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Impala that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to email@example.com or regular mail to our offices located at 1000 Dean Street, Suite #101, Brooklyn NY 11238 The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your Account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this Section.
22.3. Waiver of Jury Trial.
YOU AND Impala HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Impala are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 22.1 (Applicability of Arbitration Agreement). There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
22.4. Waiver of Class and Other Non-Individualized Relief.
YOU AND Impala AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 22.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 22.9 (Batch Arbitration). Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this Section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Impala agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of New York. All other Disputes shall be arbitrated or litigated in small claims court. This Section does not prevent you or Impala from participating in a class-wide settlement of claims.
22.5. Rules and Forum.
These Terms evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Impala agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and Impala otherwise agree, or the Batch Arbitration process discussed in Section 22.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely set forth in the applicable AAA Rules.
You and Impala agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and shall be subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
The arbitrator will be either a retired judge or an attorney licensed to practice law in the State of New York and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 22.9 (Batch Arbitration) is triggered, the AAA will appoint the arbitrator for each batch.
22.7. Authority of Arbitrator.
The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Section 22.4 (Waiver of Class and Other Non-Individualized Relief), including any claim that all or part of Section 22.4 (Waiver of Class and Other Non-Individualized Relief) is unenforceable, illegal, void or voidable, or that Section 22.4 (Waiver of Class and Other Non-Individualized Relief) has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 22.9 (Batch Arbitration), all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 22.9 (Batch Arbitration). The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
22.8. Attorneys’ Fees and Costs.
The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Impala need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
22.9. Batch Arbitration.
To increase the efficiency of administration and resolution of arbitrations, you and Impala agree that in the event that there are one-hundred (100) or more individual Requests of a substantially similar nature filed against Impala by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Impala.
You and Impala agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
22.10. 30-Day Right to Opt Out.
You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: 1000 Dean Street, Suite #101, Brooklyn NY 11238, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address associated with your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
22.11. Invalidity, Expiration.
Except as provided in Section 22.4 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Impala as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
Notwithstanding any provision in these Terms to the contrary, we agree that if Impala makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Impala at 1000 Dean Street, Suite #101, Brooklyn NY 11238, your continued use of the Services, including the acceptance of products and services offered on the Services following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of these Terms and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services or these Terms, the provisions of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms) remain in full force and effect. Impala will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of these Terms.
23. Term and Termination
These Terms commence on the date when you accept them (as described in the preamble above), and continue in full force and effect for as long as you access or use the Services, unless terminated earlier in accordance with These Terms.
23.2. Termination by You.
Except as otherwise set forth in Section 5 (Subscription Services), you may terminate these Terms with Impala at any time by closing your Account(s) and discontinuing your access and use of the Services.
23.3. Termination by Impala.
If you have materially breached any provision of these Terms, or if Impala is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), Impala has the right to, immediately and without notice, suspend or terminate any Service provided to you. In addition to other termination rights set forth in these Terms, we reserve the right to terminate these Terms or your access to the Services at any time without cause upon notice to you; provided that if you have a Subscription, you may use your Subscription until the end of your then-current Subscription Period, and your Subscription will not be renewed after your then-current Subscription Period expires. You agree that all terminations for cause are made in Impala’s sole discretion and that Impala shall not be liable to you or any third party for any termination of your Account.
All provisions of these Terms which by their nature should survive, will survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
You may not assign any of your rights or obligations under these Terms without our prior written consent, which consent may be withheld in our sole discretion.
24.2. No Third Party Beneficiary.
Except as expressly provided in this Agreement, this Agreement is intended solely for the benefit of you and the Impala Parties, and is not intended to confer any benefits upon, or create any rights in favor of, any Person other than you and the Impala Parties.
24.3. Force Majeure.
We shall be excused for any problem due to a circumstance beyond our reasonable control.
24.4. Export Control.
You represent and warrant on an ongoing basis and at all relevant times that you are not, nor is any individual with access to your Account, nor is any entity or person that (directly or indirectly) owns, controls, or is affiliated with you, acts on your behalf or is otherwise associated with you, subject to financial, economic or trade sanctions or embargoes, or otherwise designated on any list of prohibited or restricted parties. or territories, including any such lists maintained from time to time by the United Nations Security Council, the UK Government, US Government, the Australian Government, the Canadian Government, the European Union or its member states or any member states of the European Free Trade Association, or other applicable government authority. In the event that, at any relevant time, the warranty outlined in the preceding sentence ceases to be true, complete, and accurate, you shall notify us immediately.
No waiver by Impala of any provision of these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Impala to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.
If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect.
24.7. Entire Agreement.
The Terms constitute the sole and entire agreement between you and Impala with respect to the Services and other subject matter hereof and supersede and merge all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
25. Your Comments and Concerns
The Services are operated by Chario, Inc d/b/a Impala, located at 1000 Dean Street, Suite #101, Brooklyn, NY 11238. All notices, except for all notices of copyright infringement claims, including feedback, comments, requests for technical support and other communications relating to the Services should be directed to: firstname.lastname@example.org.