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This Terms of Service (this “Terms of Service”) is agreed to between Arryved, Inc. (“Arryved”) and you, or if you represent an entity or other organization, that entity or organization, (in either case, “You”).  Arryved offers end users (“Users”) the ability to access information, data, and other content (“Content”), as well as related services (the “Services”) described on the Arryved platform (the “Platform”).  You may access the Platform through the website located at https://insider.arryved.com (the “Site”), through the mobile application called Arryved (the “Application”, and each Site and Application treated as a part of the “Platform” for purposes of this Agreement.  This Terms of Service applies to the Platform and the Content and Services available through the Platform, regardless of the Website or Application through which You access or use the Platform, Content, or Services. 

PLEASE CAREFULLY READ THIS TERMS OF SERVICE. BY ACCESSING OR USING THE PLATFORM, CONTENT, OR SERVICES, OR BY CLICKING A BOX THAT STATES THAT YOU ACCEPT OR AGREE TO THIS TERMS OF SERVICE, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS TERMS OF SERVICE.  IF YOU DO NOT AGREE TO THIS TERMS OF SERVICE, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, ARRYVED IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE PLATFORM, CONTENT, OR SERVICES AND YOU MUST NOT ACCESS OR USE THE PLATFORM, CONTENT, OR SERVICES.  IF YOU ACCESS OR USE THE PLATFORM, CONTENT, OR SERVICES, YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT AND AGREE TO BE BOUND BY THIS TERMS OF SERVICE.

This Terms of Service includes the terms and conditions below and the current Privacy Policy relating to the Platform, available at https://insider.arryved.com/privacy.  You are responsible for compliance with this Terms of Service (including this Privacy Policy). Unless You later enter into any other agreements with Arryved regarding the Platform, Content or Services, this Agreement is the complete and exclusive agreement between You and Arryved regarding Your access to and use of the Platform, Content, and Services.  This Agreement supersedes any prior agreement or proposal, oral or written, and any other communications between You and Arryved relating to Your use of the Platform, Content or Services as a User of the Platform.

THESE TERMS INCLUDE AN OBLIGATION TO ARBITRATE MOST CLAIMS ARISING HEREUNDER. YOU ACKNOWLEDGE AND AGREE THAT YOU AND ARRYVED ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.

 

1. Definitions.  Terms used in this Terms of Service have the definitions given in this Terms of Service or, if not defined in this Terms of Service, have their plain English meaning as commonly interpreted in the United States.

 

2. Term.  This Terms of Service is entered into as of the earlier of the date You first accessed the Website or used the Platform, Content, or Services (the “Effective Date”) and will continue until terminated as set forth herein.

 

3. Modifications.  Arryved reserves the right, at any time, to modify the Platform, Content, or Services, with or without notice to You, by making those modifications available on the Platform.  Arryved also reserves the right, at any time, to modify this Terms of Service. Arryved will inform You of the presence of any changes to this Terms of Service by posting those changes on the Platform or by providing You with notice through the Platform.  Any modifications will be effective immediately upon posting on the Platform or delivery of such notice through the Platform. You may terminate this Terms of Service as set forth below if You object to any such modifications. However, You will be deemed to have agreed to any and all modifications through Your continued use of the Platform, Content, or Services following such notice period.

 

4. Eligibility.  The Platform, Content, and Services are intended for use by individuals 21 years of age and older.  You may not use the Platform, Content, and Services if you are under 21 years of age.

 

5. Arryved Clients. The Platform, Content, and Services may permit you to sign up, monitor and redeem qualifying loyalty points with certain Arryved clients (“Clients”), many of whom may be breweries.  Each individual Client is responsible for determining and communicating to You the terms of any loyalty or rewards program it may have. Arryved may track such information and facilitate in the redemption as a courtesy only – Arryved is not responsible for any errors or mis-categorizations of any loyalty points. You should make sure that you review the loyalty program terms for each Client as they may vary and they may be updated at any time.  Arryved is not responsible for any reward redemption in any way. If You have any questions or concerns regarding the redemption of any loyalty rewards, You must deal with the applicable Client directly. Clients may provide Content to the Platform, and Arryved makes no representations or warranties about such Content, including without limitation the accuracy, currency, or completeness of such Content. 

 

6. Access

a. To the Platform.  Subject to Your compliance with this Terms of Service, Arryved will permit You to access and use the Platform, Content, and Services solely for lawful non-commercial purposes and only in accordance with this Terms of Service and any other agreement You agree to with Arryved before being given access to any specific aspects of the Platform.  Any additional agreement is in addition to this Terms of Service and will govern Your use of the portions of the Platform to which the additional agreement applies in the event of a conflict between the terms of this Terms of Service and the additional agreement. You are solely responsible for obtaining and maintaining all equipment, facilities, and connectivity required to access or use the Platform, in each case as necessary to meet Your operational and business requirements based on Your particular circumstances.

b. To Content.  You may be provided with access to a variety of Content through the Platform, including, text, audio, video, photographs, maps, illustrations, event announcements, product and service descriptions, graphics, and other data, information, and media.  Unless otherwise noted on the Platform, all Content available through the Platform is owned by Arryved, Arryved Client’s and Arryved’s other third party providers. All Content is provided for informational purposes only and You are solely responsible for verifying the accuracy, completeness, and applicability of all Content and for Your use of any Content.  Subject to Your compliance with this Agreement, You may access the Content solely for Your own personal purposes in connection with Your use of the Platform. You will not, and will not permit any third party to: (i) alter, modify, reproduce, or create derivative works of any Content; (ii) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any Content; or (iii) alter, obscure or remove any copyright, trademark or any other notices that are provided on or in connection with any Content.  Certain Content may include or be based on data, information or content from Client’s or third party providers (“Third Party Content”).  Arryved has not verified the accuracy of, and will not be responsible for any errors or omissions in, any Third Party Content provided through the Platform.  Except as set forth in this Agreement, You are granted no licenses or rights in or to any Content, or any IPR (as defined below) therein or related thereto.  

c. To Applications. Subject to Your compliance with this Agreement and any other terms and conditions accompanying each Application, Arryved will permit You to download and install Applications and operate those Applications solely for the purpose of using and accessing the Platform, Content, and Services as intended. You may install each Application only on computers, mobile devices, or smart phones owned or controlled by You and used only for Your own personal and non-commercial purposes in accordance with this Agreement and any applicable terms and conditions accompanying the Application or otherwise provided to You by Arryved. Except as expressly set forth in the previous sentence, You are granted no licenses or other rights in or to any Application. You agree not to use, modify, reproduce, perform, display, create derivative works from, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit or utilize any Application other than as expressly permitted in this Agreement or any other agreement You are required to agree to before being given access to any Application.

 

7. Accounts.

a. Users. You are permitted to access certain Content and Services without establishing a user account on the Platform, provided that You have agreed to this Agreement.  However, access to and use of certain Content and Services may require that You establish a user account (a “User Account“) on the Platform. Approval of Your request to establish a User Account will be at the sole discretion of Arryved.  You may use and access the Platform, Content, and Services through Your User Account only as the sole User of the User Account. Each user identification and password for Your User Account (each, “Account ID”) is personal in nature and may be used only by You or, as applicable, the User to whom the Account ID is issued.

b. Account Registration. In connection with establishing an Account, You will be asked to submit certain information about You (“Registration Information”).  You agree that: (a) all such information You provide will be accurate, complete, and current; (b) You will maintain and promptly update all such information to keep it accurate, complete, and current; and (c) You will not provide any information belonging to another person or organization with the intent to impersonate that person or organization.  By providing Registration Information, You authorize Arryved to disclose such information as described in the Privacy Policy.

c. Responsibilities. You are solely responsible for all access to and use of Your User Account (whether authorized or unauthorized), including all Content and Services accessed through Your User Account.  Arryved may deem any actions taken through Your Account to have been authorized by You. You are responsible for compliance with this Agreement. You will ensure the security and confidentiality of each Account ID and will notify Arryved immediately if any Account ID is lost, stolen, or otherwise compromised.  You acknowledge that You are fully responsible for all costs, fees, liabilities, or damages incurred, and material transferred, stored, modified, or shared through the use of each Account ID (whether lawful or unlawful). You acknowledge that any orders made or other transactions completed through Your User Account will be deemed to have been lawfully completed by You.  In no event will Arryved be liable for the foregoing obligations or the failure by You to fulfill such obligations.

 

8. App Store. The Application may be obtained through a third party distribution platform (e.g., the Apple App Store or Google Play App Store) (the “App Store”) and is to be used solely on a mobile device owned or controlled by You that operates such third party’s operating system. This Agreement incorporates by reference the terms of the Addendum to this Agreement and any other terms available at the respective App Store from which You have obtained the Application. You agree that this Agreement is between You and Arryved, and not with the App Store. The App Store is not responsible for the Application, maintenance and support services or any warranty thereof, or addressing any claims related thereto. You agree to pay all fees charged by the App Store in connection with the Application (if any). The Application may also be subject to additional terms and conditions and privacy policies, and Arryved is not a party to nor responsible for those additional terms.

 

9. Payment.

a. Purchases. In addition to the Content and Services available for no charge through the Platform, You may be offered the opportunity to purchase, subscribe to, or otherwise obtain access to premium Content or Services, or other products or services through the Platform from Arryved, including without limitation your ability to pay Client tabs that you have incurred (“Charges”). Arryved will facilitate Your payment of the applicable Charges. Charges will be inclusive of applicable taxes where required by law. Any purchase will be subject to any terms and conditions displayed on or through the Platform in connection with the purchase in addition to the terms of this Agreement. Unless otherwise indicated on the Platform, purchases made by You through the Platform cannot be exchanged and any Charges in connection with those purchases are non-refundable. All information that You provide in connection with a purchase or other transaction through the Platform will be accurate, complete, and current. You should be very careful only to authorize those Charges that you are responsible for – if you select a tab that is not Yours and pay that tab, you are responsible for it.  You authorize Arryved (or a company chosen to act on behalf of Arryved) to process the credit card, debit card, mobile services account, or other payment method linked to Your User Account provided in connection with any transaction made through Your User Account, and agree to honor all purchases incurred in connection with any such transaction. 

b. Clients. In certain cases, with respect to tabs you have with Clients, Charges you incur will be owed directly to Clients, and Arryved will collect payment of those charges from you, on the Client’s behalf as their limited payment collection agent, and payment of the Charges shall be considered the same as payment made directly by you to the Client. 

c. Promotions. From time to time, Arryved may offer Users special free trials, promotional codes, credits, awards, or other discounts (“Promotions”). All Promotions will be offered at the sole discretion of Arryved, and can be modified or terminated at any time by Arryved with or without advance notice. Promotions may be offered on a limited time basis and may be subject to certain restrictions. As part of a Promotion, Arryved may offer credits to Charges that are non-transferrable, nonrefundable for cash, and may be subject to additional terms and conditions.

d. Payment Processor. Arryved may use a payment processor to process Charges that Users accept under this Agreement. In order for Users to utilize the payment processing service, they must enter into any such agreement that the payment processor requires. By making purchases linked to Your User Account, You agree that You have reviewed and agreed to any such agreements required.

10. Termination.  This Terms of Service may be terminated by either party at any time, in that party’s sole discretion, upon notice to the other party as permitted under this Terms of Service.  Upon termination or expiration of this Agreement for any reason: (a) all rights and subscriptions granted to You under this Terms of Service will terminate; and (b) You will immediately cease all use of and access to the Platform and all Content and Services (including, without limitation, all Content You obtained prior to termination).  Sections 1, 4, 8, 12, 13, 14b, and 15-25 will survive any expiration or termination of this Agreement.

 

11. Suspension.  Without limiting Arryved’s right to terminate this Terms of Service, Arryved may also suspend Your access to the Platform or any Content or Services, with or without notice to You, upon any actual, threatened or suspected breach of this Terms of Service or applicable law or upon any other conduct deemed by Arryved, in its sole discretion, to be inappropriate or detrimental to the Platform, Services, Arryved, or any other User or third party.

 

12. Platform Technology.  The Platform, and the databases, software, hardware and other technology used by or on behalf of Arryved to operate the Platform, and the structure, organization, and underlying data, information and software code thereof (collectively, the “Technology”), constitute valuable trade secrets of Arryved.  You will not, and will not permit any third party to: (a) access or attempt to access the Technology except as expressly provided in this Terms of Service; (b) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Technology; (c) use automated scripts to collect information from or otherwise interact with the Technology; (d) alter, modify, reproduce, create derivative works of the Technology; (e) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of Your rights to access or use the Technology or otherwise make the Technology available to any third party; (f) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Technology; (g) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (h) monitor the availability, performance or functionality of the Technology; (i) interfere with the operation or hosting of the Technology; or (j) use the Technology to develop a competing product or service.

 

13. Ownership.  Arryved retains all right, title, and interest, including, without limitation, all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights (“IPR”), in and to the Technology and any additions, improvements, updates and modifications thereto.  You receive no ownership interest in or to the Technology and You are not granted any right or license to use the Technology itself, apart from Your ability to access the Platform, Content, and Services under this Agreement.  The Arryved name, logo, and all product and service names associated with the Platform, Content, and Services are trademarks of Arryved and its licensors and third party providers and You are granted no right or license to use them.

 

14. Representations and Warranties.  

a. Mutual.  Each party hereby represents and warrants to the other party that: (i) it has the legal right and authority to enter into this Terms of Service; (ii) this Terms of Service forms a binding legal obligation on behalf of such party; and (iii) it has the legal right and authority to perform its obligations under this Terms of Service and to grant the rights and licenses described in this Terms of Service.

b. Compliance with Laws. You represent and warrant to Arryved that Your use of and access to the Platform, including any Content or Services, will comply with all applicable laws, rules, or regulations (“Laws”) and will not cause Arryved itself or any other third party to violate any applicable Laws.  Arryved is not responsible for notifying You of any such Laws, enabling Your compliance with any such Laws, or for Your failure to comply.  

 

15. No Warranties; DisclaimerTHE PLATFORM, CONTENT, AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.”  ARRYVED, ITS LICENSORS, AND PROVIDERS DO NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, ADEQUACY, OR CURRENCY OF THE PLATFORM OR ANY CONTENT OR SERVICES AND DO NOT ENDORSE THE VIEWS OR OPINIONS THAT MAY BE EXPRESSED IN THE CONTENT OR OTHER DATA, INFORMATION, OR THIRD PARTY CONTENT THAT MAY BE PROVIDED THROUGH THE PLATFORM.  ARRYVED AND ITS PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE PLATFORM, CONTENT, SERVICES AND OTHER SUBJECT MATTER OF THIS TERMS OF SERVICE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NON-INFRINGEMENT.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ARRYVED, ITS CLIENTS, EMPLOYEES, PROVIDERS, OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION.

 

16. Indemnity.  You hereby agree to indemnify, defend, and hold harmless Arryved and its officers, directors, shareholders, affiliates, employees, agents, contractors, assigns, users, customers, providers, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation against any Indemnified Party arising in any manner from: (a) Your access to or use of the Platform, Content, or Services; (b) Your collection, use, and disclosure of any Content; (c) Your violation of applicable Laws; and (d) Your breach of any representation, warranty, or other provision of this Terms of Service.  Arryved will use reasonable efforts to provide You with notice of any such claim or allegation, and Arryved will have the right to participate in the defense of any such claim at its expense.

 

17. Limitation of LiabilityARRYVED WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THE USE OF THE PLATFORM, CONTENT, OR SERVICES, EVEN IF ARRYVED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF CONTENT, OPPORTUNITY, REVENUES, PROFITS OR REPUTATION, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE CONTENT OR SERVICES.  ARRYVED’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS TERMS OF SERVICE AND ALL CONTENT AND SERVICES PROVIDED UNDER THIS TERMS OF SERVICE OR THROUGH THE PLATFORM, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE GREATER OF: (A) FEES PAID BY YOU TO ARRYVED FOR THE APPLICABLE CONTENT OR SERVICES, OR (B) $100. YOU AGREE THAT ARRYVED WOULD NOT ENTER INTO THIS TERMS OF SERVICE WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, ARRYVED’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

 

18. Release.  You hereby release and forever discharge Arryved and its affiliates, employees, agents, contractors, assigns, licensees, and successors in interest from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, the Platform, Services, or Content. 

 

19. Data Privacy.  You expressly consent to the use and disclosure of Your personal data and other data and information as described in the Privacy Policy, available at https://insider.arryved.com/privacy. Notwithstanding anything in the Privacy Policy, Arryved will have the right to collect, extract, compile, synthesize, and analyze non-personally identifiable data or information (data or information that does not identify an entity or natural person as the source thereof) resulting from Your access to and use of the Platform, Services, or Content.  To the extent any such non-personally identifiable data or information is collected or generated by Arryved, the data and information will be solely owned by Arryved and may be used and shared by Arryved for any lawful business purpose without a duty of accounting to You, provided that the data and information is used only in an aggregated form, without directly identifying You or any other entity or natural person as the source thereof.

 

20. Feedback.  If You provide Arryved any feedback or suggestions regarding the Platform, Services, or Content (“Feedback”), You hereby assign to Arryved all rights in the Feedback and agree that Arryved shall have the right to use such Feedback and related information in any manner it deems appropriate without a duty of accounting to You.  Arryved will treat any Feedback You provide to Arryved as non-confidential and non-proprietary. You agree that You will not submit to Arryved any information or ideas that You consider to be confidential or proprietary. 

 

21. Disputes 

a. MANDATORY DISPUTE RESOLUTION/CLASS-ARBITRATION WAIVER. BY ENTERING THIS AGREEMENT, YOU AND ARRYVED AGREE TO ARBITRATE ANY AND ALL CLAIMS, CONTROVERSIES OR DISPUTES OF ANY KIND AGAINST EACH OTHER. YOU AND ARRYVED WAIVE THE RIGHT TO A TRIAL BY JURY AND ALSO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION. ACCORDINGLY, YOU AND ARRYVED AGREE THAT NEITHER ARRYVED NOR YOU WILL JOIN ANY CLAIM WITH THE CLAIM(S) OF ANY OTHER PERSON OR ENTITY WHETHER IN A LAWSUIT, ARBITRATION, OR ANY OTHER PROCEEDING. YOU AND ARRYVED AGREE THAT NO CLAIMS WILL BE ASSERTED IN ANY REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE, THAT NO CLAIMS WILL BE RESOLVED ON A CLASS-WIDE OR COLLECTIVE BASIS, THAT NO ARBITRATOR OR ARBITRATION FORUM WILL HAVE JURISDICTION TO ADJUDICATE ANY CLAIMS ON A CLASS-WIDE OR COLLECTIVE BASIS, AND THAT NO RULES FOR CLASS-WIDE OR COLLECTIVE ARBITRATION WILL APPLY. THUS YOU AND ARRYVED MAY ONLY BRING CLAIMS AGAINST ONE ANOTHER IN AN INDIVIDUAL CAPACITY, NOT AS A NAMED PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE CAPACITY. This agreement to arbitrate is intended to be broadly interpreted and applies to all claims regardless of whether they are based on conduct that occurred prior to, during or after the term of the Agreement and regardless of whether the claims are based in contract, tort, statute, fraud, misrepresentation or any other legal theory. References to the terms “Arryved” “You,” “Your,” “Party,” or “Parties” include all respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns. This arbitration provision survives termination of this Agreement.   The sole exception to this arbitration agreement is that either You or Arryved may, in the alternative, bring claims in a small claims court having competent jurisdiction.

b. Arbitration Procedure. A party who intends to seek arbitration must first send to the other party, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Arryved should be addressed to: Arryved Management Team. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought. If Arryved and You do not reach an agreement to resolve the claim within 30 days after the Notice is received, You or Arryved may commence an arbitration proceeding pursuant to the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement. A single neutral arbitrator will be selected by agreement of the parties. If an agreement cannot be reached, a single neutral arbitrator will be selected according to the AAA’s procedures and the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (“FAA”), and the claims will be resolved pursuant to this Mandatory Dispute Resolution/Class-Arbitration Waiver provision and the AAA Rules in effect when the claim is filed. The AAA Rules are available online at www.adr.org/consumer_arbitration and can also be obtained by calling the AAA at 1-800-778-7879. AAA will administer the arbitration, and You may file a demand for arbitration at www.adr.org. Unless Arryved and You agree otherwise, any in-person arbitration hearings will occur within 100 miles of Your address, with the preference that it occur in the county/parish of Your address. If a claim is for $10,000 or less, the party submitting the claim may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator (“desk arbitration”), through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. The arbitrator conducting a desk arbitration or telephonic hearing may be located anywhere in the United States. If a claim exceeds $10,000, the AAA Rules govern where a hearing occurs. The arbitration will be confidential, but either party may notify any governmental authority of the claim.

c. Arbitrator’s Authority. The arbitrator is bound by the terms of this Agreement, and the arbitrator’s authority is limited to claims between You and Arryved. The arbitrator has no authority to join or consolidate claims unless the parties agree otherwise in writing. The arbitrator, not any court or agency, has exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement including, but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator may award all relief or remedies available in court, including declaratory and injunctive relief, but only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that individual’s claim.

d. Costs of Arbitration. Except as otherwise provided for herein, Arryved will: (a) pay all AAA filing, administration and arbitrator fees for any arbitration initiated in accordance with this arbitration provision; and (b) will not seek an award of its attorney’s fees. If the arbitrator finds that the substance of the claim or the relief sought is frivolous, however, then the AAA Rules will govern the payment of all fees, and Arryved may seek an award of its reasonable attorney’s fees. Furthermore, if You initiate an arbitration seeking more than $75,000 in damages, the AAA Rules govern the payment of all fees. You are responsible for all additional costs that You incur in the arbitration, including but not limited to, fees for attorneys or expert witnesses. Notwithstanding anything to the contrary in this provision, Arryved will pay all fees and costs that it is required to pay under the law.

e. Changes. Notwithstanding any provision in this Agreement to the contrary, You agree that if Arryved makes any future change to this Dispute Resolution Provision (other than a change to the Notice address listed above) during the term of this Agreement, You may reject any such change by sending Arryved written notice within 30 days of the change to the Notice address provided above. By rejecting any future change, You are agreeing that You will arbitrate any dispute between us in accordance with the language of this provision. Changes made to this provision after either party has submitted a Notice will not affect the pending dispute.

 

22. Governing Law and Venue.  The interpretation of the rights and obligations of the parties under this Terms of Service, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of Colorado, U.S.A. as such laws apply to contracts between Colorado residents performed entirely within Colorado without regard to the conflict of laws provisions thereof.  Subject to Section titled Disputes, for claims not subject to arbitration, each party will bring any action or proceeding arising from or relating to this Terms of Service exclusively in a federal or state court in Denver, Colorado, U.S.A., and each party irrevocably submit to the personal jurisdiction and venue of any such courts in any such action or proceeding brought in such courts.

 

23. Notices.  Unless otherwise specified in this Terms of Service, any notices required or allowed under this Terms of Service will be provided to Arryved by postal mail to the address for Arryved listed on the Platform.  Arryved may provide You with any notices required or allowed under this Terms of Service by sending You an email to any email address You provide to Arryved in connection with Your use of the Platform, provided that in the case of any notice applicable both to You and other Users of the Platform, Arryved may instead provide such notice by posting on the Platform.  Notices provided to Arryved will be deemed given when actually received by Arryved. Notice provided to You will be deemed given immediately after posting to the Platform or sending via e-mail, unless (as to email) the sending party is notified that the email address is invalid.

 

24. Linked Sites.  The Platform and Services may contain links to third party sites or content that are not under the control of Arryved.  If You access a third party site or content from the Platform or Services, then You do so at Your own risk and Arryved is not responsible for any content on any linked site or content.  Unless otherwise instructed by Arryved, You may establish a link from Your own website to the Website or Application, provided that the link does not state or imply any sponsorship or endorsement of Your site by Arryved or any group or individual affiliated with Arryved.  You may not use on Your site any Content or marks appearing on the Website, Application or Platform in establishing the link. You may not frame or otherwise incorporate into another site the content or other materials on the Platform without Arryved’s prior written consent.

 

25. Additional Terms.  Unless otherwise amended as provided herein, this Terms of Service will exclusively govern Your access to and use of the Platform, Content, and Services, and is the complete and exclusive understanding and agreement between the parties, and supersedes any oral or written proposal, agreement or other communication between the parties, regarding Your access to and use of the Platform, Content, and Services.  Except as expressly set forth in this Agreement, this Terms of Service may be amended or modified only by a writing signed by both parties. All waivers by Arryved under this Terms of Service must be in writing or later acknowledged by Arryved in writing. Any waiver or failure by Arryved to enforce any provision of this Terms of Service on one occasion will not be deemed a waiver by Arryved of any other provision or of such provision on any other occasion.  If any provision of this Terms of Service is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. The prevailing party in any lawsuit or proceeding arising from or related to this Terms of Service will be entitled to receive its costs, expert witness fees, and reasonable attorneys’ fees, including costs and fees on appeal.  Neither this Terms of Service nor any rights or obligations of You hereunder may be assigned or transferred by You (in whole or in part and including by sale, merger, consolidation, or other operation of law) without the prior written approval of Arryved. Any assignment in violation of the foregoing will be null and void. Arryved may assign this Terms of Service to any party that assumes Arryved’s obligations hereunder. The parties hereto are independent parties, not agents, employees of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other.  Any reference herein to “including” will mean “including, without limitation.” Upon request from Arryved, You agree to provide Arryved with such documentation or records with respect to Your activities under this Terms of Service as may be reasonably requested for Arryved to verify Your compliance with all applicable Laws and the terms of this Terms of Service.

 

 

Addendum

Supplemental Terms for Apple

Notwithstanding anything set forth above, if You obtained a license to the Application through the Apple App Store, the following additional terms and conditions apply.

  1. Acknowledgement: You acknowledge that this Agreement is between You and Arryved, not Apple, and Arryved, not Apple, is solely responsible for the Application and the content thereof.
  2. Scope of License: For the avoidance of doubt, the license granted herein is solely for Your use on any Apple-branded products that You own or control as permitted by this Agreement and the Usage Rules set forth in the App Store Terms of Service.
  3. Maintenance and Support: You acknowledge that Apple will not have any obligation whatsoever to provide any maintenance or support with respect to the Application.
  4. Warranty: You agree that Arryved shall be solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed in this Agreement. In the event of any failure of the Application to conform to any applicable warranty, You have the right to notify Apple and Apple shall refund the purchase price for the Application to You. You acknowledge that, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Application and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Arryved, to the extent applicable.
  5. Product Claims: Both parties hereto agree that Arryved, not Apple, is responsible for addressing any claims made by You or any third party relating to the Application or Your possession and/or use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation.
  6. Intellectual Property Rights: Both parties hereto acknowledge that in the event of any third party claim that the Application or Your possession and use of the Application infringes such third party’s intellectual property rights, Arryved, not Apple, will solely be responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
  7. Legal Compliance: You represent and warrant that: (i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (ii) You are not listed on a U.S. Government list of prohibited or restricted parties.
  8. Developer Name and Address: Arryved’s contact information for any questions, complaints, or claims with respect to the Application is set forth in this Agreement.
  9. Third Party Terms of Agreement: You must comply with all applicable third party terms of agreement when using the Application, e.g., You must not be in violation of Your wireless data service when using the Application.
  10. Third Party Beneficiary: Both parties acknowledge and agree that Apple and its subsidiaries are third party beneficiaries of this Agreement, and that, upon Your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against You as a third party beneficiary hereof.

Apple Minimum Terms Control: You acknowledge and agree that if any of the terms and conditions of this Agreement are inconsistent or in conflict with Apple’s applicable Instructions for Minimum Terms for Developer’s End User License Agreement, the terms and conditions of Apple’s Instructions for Minimum Terms of Developer’s End User License Agreement shall apply.