Terms of Service
IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE "INITIAL TERM"), THEN THE INITIAL TERM WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT COMPANY'S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE TERMS SET FORTH HEREIN. YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME AS FURTHER DESCRIBED BELOW.
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
Your use of, and participation in, certain Services may be subject to additional terms ("Supplemental Terms"), and such Supplemental Terms will either be listed in this Agreement or will be presented to you for your acceptance when you sign up to use the supplemental Service. The Supplemental Terms shall be governed by the terms of this Agreement. If this Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service.
Note for Children. Use of the Service by anyone under the age of 18 is prohibited. By using the Service, you represent and warrant that are you at least 18 years of age.
We may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time. Changes will be effective: (i) thirty (30) days after the we provide notice of the Changes, whether such notice is provided through the Service user interface, is sent to the e-mail address associated with your account or otherwise; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first.
We grant you a limited license to access and use the Site for your personal use, and to copy, distribute and transmit the content of this Site only to the extent that such copying, distribution and transmission is automatically done through your browser software incidentally to using the Site for your personal use.
The sale or linking of our products on or to any third-party e-commerce site, marketplace or mobile application without our specific written consent is expressly prohibited.
Further, (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Site or Services, (b) you shall not frame or utilize framing techniques to enclose any of our trademarks, logos, or other intellectual property (including images, text, page layout or form); (c) you shall not use any metatags or other "hidden text" using our name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Site except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to "scrape" or download data from any web pages contained in the Site (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Site. Any future release, update or other addition to the Site shall be subject to this Agreement. We, our suppliers and service providers reserve all rights not granted in this Agreement. Any unauthorized use of the Site or Services automatically terminates the license granted by us under this Agreement.
To create an account and/or make purchases through the Site, you will be asked to submit certain information, which may include your name and/or a username, email address, and password. Each time you use your password or identification (“Credentials”), you will be deemed to be authorized to access and use the Site in a manner consistent with this Agreement and we have no obligation to investigate the authorization or source of any such access or use of the Site.
In order to access certain features of the Services, you may be required to link your account with a social networking site or other third party account, such as Facebook ("SNS" and each such account, a "Third-Party Account") by allowing us 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 have the right to grant us 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 requiring us to pay any fees or subjecting us to any usage limitations imposed by such third-party service providers. By granting us access to any Third-Party Accounts, we may access, make available and store (if applicable) any photographs, information, data, text, software, graphics, video, messages, tags and/or other materials accessible through the Site ("Content") that you have provided to and stored in your Third-Party Account ("SNS Content") so that it is available on and through the Site via your account. You may also share Content obtained or accessed through the Services with such Third-Party Account. You have the ability to disable the connection between your account and your Third-Party Accounts at any time by accessing the "Settings" section of the Site. PLEASE NOTE THAT 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 WE WILL HAVE NO LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO US 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 we are not responsible for any SNS Content.
YOU WILL BE SOLELY RESPONSIBLE FOR ALL ACCESS TO AND USE OF THIS SITE BY ANYONE USING YOUR CREDENTIALS WHETHER OR NOT SUCH ACCESS TO AND USE OF THIS SITE IS ACTUALLY AUTHORIZED BY YOU, INCLUDING WITHOUT LIMITATION, ALL COMMUNICATIONS AND TRANSMISSIONS AND ALL OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, FINANCIAL OBLIGATIONS) INCURRED THROUGH SUCH ACCESS OR USE.
You are solely responsible for protecting the security and confidentiality of your Credentials. You shall immediately notify us of any unauthorized use of your Credentials or any other breach or threatened breach of the Site's security.
4. SUBSCRIPTION PROCESS, RENEWAL AND CANCELLATION
Currently, we only ship to addresses within the United States. If you purchase a journaling subscription to Silk and Sonder through our Site, every thirty (30) days, we will send you a shipment of a Silk and Sonder journal from us. In an effort to provide the best possible service, your first subscription order might be queued as follows:
- Thus, if you place a first order (subscription or gift) between the 26th and the 16th of the pre-preceding and preceding month, we hold your order and ship it with the intent of it arriving before the 1st of the month. While we do our best to guarantee the date of delivery, we do not assume any responsibility due to unplanned shipping or carrier delays, of which we cannot control.
- If you place a first order (subscription or gift) after the 16th and before the 26th of the pre-preceding month, we will process your order but do not guarantee that it will arrive by the 1st of the month. We do, however, try to ship orders in a timely basis to ensure satisfactory customer experience.
- Last, if you place a first order (subscription or gift) after the 26th of the pre-preceding month, we hold your order. You may wish to receive a journal earlier, even if it arrives into that month. We accommodate these requests if we have extra inventory. Please email email@example.com or visit our FAQs.
Our subscription term is thirty (30) days.
Your subscription will continue, and you will be charged, every thirty (30) days, until you choose to cancel. However, please note that all fees for the Services are non-refundable, so if you cancel your subscription, we will send you any outstanding supply of journals but will not refund you any amounts for shipments not received as of the date of cancellation. There is no subscription fee associated with your subscription. You will only be charged for the cost of the product and the cost of shipping and handling. After your initial thirty (30) day subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a "Renewal Commencement Date") and continue for an additional thirty (30) day period, at our then-current price for such subscription. You agree that your account will be subject to this automatic renewal feature unless you cancel your subscription at any time prior to the Renewal Commencement Date by logging into and going to the "Change/Cancel Membership" page of your "Account Settings" page.
If you do not wish your account to renew automatically, or if you want to cancel your subscription, please log in and go to the "Change/Cancel Membership" page on your "Account Settings" page. By subscribing, you authorize us to charge your payment METHOD now, and again at the beginning of any subsequent subscription period. We will send you an email reminder prior to charging your payment provider each subscription period. If you choose to cancel your subscription at any time, your subscription will terminate automatically and we will not charge your payment provider for the subsequent subscription period. You agree that the we may either terminate or suspend your subscription for any reason at any time in our sole discretion.
5. BILLING AND PAYMENTS
We accept (through our Payment Processor (as defined below)) the bank or credit cards accepted by our Payment Processor at the time of your purchase, which is currently Visa, MasterCard, American Express and Discover. We also accept Silk and Sonder gift cards. If you purchase or use any Silk and Sonder gift cards, you agree to the terms of the Silk and Sonder Gift Card Terms and Conditions, which are incorporated herein by reference. If you do not agree to the Silk and Sonder Gift Card Terms and Conditions, you may not use or purchase Silk and Sonder gift cards.
You may be charged local tax, if applicable. If your payment method is declined, we will attempt to process your charge until the transaction is approved. If we are unable to complete the transaction, we may contact you directly to update your account information.
By authorizing a purchase and/or signing up for any subscription and providing your payment information, you agree to pay us (and authorize our Payment Processor to charge you) the recurring and/or nonrecurring fees as displayed to you at the time you make such purchase or sign up for such subscription and as may be modified from time to time as described in this Agreement, as well as any other fees you expressly choose to incur in connection with your use of the Service. Unless otherwise specified upon enrollment, for subscription products or services, your payment method will be authorized for up to a month for the applicable Service account type and on a monthly basis thereafter until you cancel the subscription. You acknowledge and agree that the payment method provided by you will be automatically charged the fees you incur in connection with your use of the Service, and represent and warrant that you have all necessary rights relating to such payment instrument to authorize us to make such charges. Your subscription may be suspended if we are unable to charge such payment instrument for any reason or if your account is otherwise past due. The fees applicable to your account may be subject to modification from time to time pursuant to notice (which may be given via e-mail) provided by us at least thirty (30) days in advance of the payment date for which the modification would be effective. You may at any time cancel your account as set forth above if you do not agree to any modified fees. All fees must be paid in U.S. dollars (or such other currency(ies) which may be accepted by us from time to time, as indicated at the time of payment) and are non-refundable. If you have any issues, please contact firstname.lastname@example.org.
We are not responsible for any fees or charges that your bank or credit card issuer may apply.
The Site and Services may make available listings, descriptions, and images of certain products to be purchased in connection with a subscription or otherwise. We make no representations as to the completeness, accuracy, reliability, validity, or timeliness of such listings, descriptions, or images (including any features, specifications, and prices contained on the Site and Services). Such information and the availability of any product are subject to change at any time without notice.
We have made efforts to accurately display the attributes of products, including the applicable colors. However, as the actual colors you see will depend on your monitor, we cannot guarantee that your monitor's display of any color will accurately reflect actual product color or finish. In addition, certain weights, measures, and similar descriptions are approximate and are for convenience only. Products are intended for sale to adults.
If you find a product is not as described, your sole remedy is to return it in unused condition (excluding products that are not eligible for return), in accordance with our return policy. It is your responsibility to ascertain and obey all applicable local, state, federal, and foreign laws (including minimum age requirements) regarding the purchase, possession, and use of any product.
We reserve the right, including without prior notice, to limit the quantity of items purchased per person, per household, or per order for any reason. We will attempt to notify you should such limits be applied. We also reserve the right, at our sole discretion, to prohibit sales to dealers or resellers. For purposes of this Agreement, “reselling” will be defined as purchasing or intending to purchase any product(s) through the Site or Services for the purpose of engaging in a commercial sale of the same product(s) to a third party.
We cannot confirm the price or availability of a product until after your order is placed. Pricing or availability errors may occur on the Site or Services. The receipt of an order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product. We reserve the right to cancel any orders containing pricing or availability errors, with no further obligations to you, even after your receipt of an order confirmation or shipping notice from Silk and Sonder. We may, at its discretion, either contact you for instructions or cancel your order and notify you of such cancellation.
Promotional codes are limited in nature and may expire or be discontinued with or without notice. Promotional codes are void where prohibited by law. Promotional codes may not be copied, sold, or otherwise transferred. They are not redeemable for cash and are subject to cancellation or change at any time for any reason without notice. We reserve the right in our discretion to impose conditions on the offering of any promotional code.
We will ship to an address designated by you, if applicable, so long as such address is complete and complies with the shipping restrictions contained on the Site and Services. Risk of loss and title for products will pass to you upon delivery of the products to the carrier. Estimated delivery times are determined based on the method of shipping chosen when products are purchased and the destination of the products.
If you would like to receive a refund for any reason, please contact us at email@example.com. Refunds may be issued by us in our sole discretion.
7. PRODUCT REVIEWS
Silk and Sonder reserves the right to refuse to post or remove any material submitted or posted in any Review. Notwithstanding the foregoing, you acknowledge that Silk and Sonder is under no obligation to edit or modify any information available in any Reviews or decide any dispute or disagreement between the posters and shall have no liability to you for any content posted in a Review. Silk and Sonder does not assume liability for Reviews or for any claims for economic loss resulting from such ratings and reviews. Because we expect users to maintain a high level of integrity with respect to ratings and reviews posted through the Services, you agree: (i) to base any rating or review you post only on your first-hand experience with the product you are reviewing; (ii) you will not submit a rating or Review in exchange for payment or other benefits from any individual or entity; and (iii) your review will comply with the terms set forth herein. If Silk and Sonder determines, in our sole discretion, that any rating or review could diminish the integrity of the ratings and reviews, we may exclude such Review without notice. Further, Silk and Sonder may remove any Reviews in the event it determines, in its sole discretion, that a Review:
- Is false, unlawful, misleading, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing (or advocates harassment of another person), threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
- Is patently offensive to the online community, such as that which promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
- Would constitute, encourage, promote or provide instructions for conduct of an illegal activity, a criminal offense, give rise to civil liability, violate the rights of any party in any country of the world, or that would otherwise create liability or violate any local, national or international law, including, without limitation, the regulations of the U.S. Securities and Exchange Commission (SEC) or any rules of any securities exchange, including but not limited to, the New York Stock Exchange (NYSE) and/or the NASDAQ;
- Provides instructional information about illegal activities such as making or buying illegal weapons, violating someone's privacy or providing or creating computer viruses;
- May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
- Constitutes mass mailings or "spamming", "junk mail", "chain letters" or "pyramid schemes";
- Impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity, including Silk and Sonder;
- Is private information of any third party, including, without limitation, addresses, phone numbers, email addresses, social security numbers and credit card numbers;
- Include or are intended to facilitate viruses, corrupted data or other harmful, disruptive or destructive files;
- Is unrelated to the topic of the Reviews or products in which such Review is posted; or
- (i) is otherwise objectionable, (ii) restricts or inhibits any other person from using or enjoying the Services, or (iii) may expose Silk and Sonder or its users to any harm or liability of any type.
You may terminate this Agreement at any time, for any reason or for no reason, by deleting your Services account by contacting us at firstname.lastname@example.org. You agree that we, in our sole discretion and for any or no reason, may terminate this Agreement, your account or your use of the Site and Services, at any time and without notice. We may also in our sole discretion and at any time discontinue providing the Site, Services or any products listed hereon, or any part thereof, with or without notice. You agree that we shall not be liable to you or any third-party for any such termination. Sections 2 (third paragraph only), 3 (disclaimers only), 5 (with respect to accrued fees), 7, 8 and 9-17 will survive any termination of this Agreement.
WE DO NOT PROMISE, COVENANT, REPRESENT, WARRANT OR GUARANTEE THAT YOU OR ANY OTHER USER OF THE SITE WILL OBTAIN ANY PARTICULAR OR TANGIBLE RESULT OR GOAL THROUGH THE USE OF THE SITE, OR ANY PRODUCT OR SERVICE MADE AVAILABLE ON OR THROUGH THE SITE.
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED, THE SITE AND THE PRODUCTS OFFERED ON THE SITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WITHOUT WARRANTIES OF ANY KIND, UNLESS SPECIFICALLY SET FORTH OTHERWISE. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES AND GUARANTEES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
WE DO NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED ON THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE DEFECTS WILL BE CORRECTED OR THAT THE SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT MAKE ANY WARRANTIES OR REPRESENTATIONS REGARDING THE USE OF THE MATERIALS ON THE SITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, TIMELINESS, RELIABILITY OR OTHERWISE. APPLICABLE LAW MAY NOT ALLOW LIMITATIONS OR EXCLUSIONS ON WARRANTIES SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR THROUGH THE SITE OR SERVICES, INCLUDING IN CONNECTION WITH THE PRODUCTS, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
NOTICE REGARDING MEDICAL ADVICE.
THIS SITE DOES NOT PROVIDE MEDICAL OR OTHER LICENSED PROFESSIONAL ADVICE. NOTHING STATED OR POSTED ON THIS SITE OR AVAILABLE THROUGH ANY SERVICES ARE INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE. THE SITE MATERIALS, SUCH AS TEXT, GRAPHICS, IMAGES, AND INFORMATION OBTAINED FROM THIS SITE ARE FOR INFORMATIONAL PURPOSES ONLY. THE SITE IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF INFORMATION YOU HAVE OBTAINED THROUGH THIS SITE. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY.
10. LIMITATION OF LIABILITY
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SITE OR SERVICES OR ANY PRODUCTS PROVIDED THROUGH THE SITE OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER SITE USERS, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE SITE OR SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED THROUGH THE SITE; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE; OR (5) ANY OTHER MATTER RELATED TO THE SITE, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
UNDER NO CIRCUMSTANCES WILL WE BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY US AS A RESULT OF YOUR USE OF THE SITE IN THE SUBSCRIPTION PERIOD DURING WHICH YOU FIRST ASSERT A CLAIM. IF YOU HAVE NOT PAID THE COMPANY ANY AMOUNTS IN THE SUBSCRIPTION PERIOD DURING WHICH YOU FIRST ASSERT ANY SUCH CLAIM, COMPANY'S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO FIFTY DOLLARS ($50).
The technology underlying the Site and the entire contents of the Site including, but not limited to, text, graphics, images, audio clips, digital downloads, data compilation or code is copyrighted as a collective work under the United States and other copyright laws, and is the property of Silk and Sonder, Inc. and protected by copyright and other intellectual property or proprietary rights. The collective work includes works that are licensed to Silk and Sonder, Inc. © 2020. Silk and Sonder, Inc. All rights reserved.
All trademarks, service marks and trade names of Silk and Sonder, Inc. on the Site, including the SILK + SONDER mark, are trademarks or registered trademarks of Silk and Sonder, Inc. or their respective owners.
You agree to indemnify, defend and hold harmless Silk and Sonder, Inc., its officers, directors, employees, agents, licensors and suppliers from and against all losses, liabilities, expenses, damages and costs, including reasonable attorneys' fees, resulting from any violation of this Agreement, or any activity related to use of the Site (including negligent or wrongful conduct)by you or any other person accessing the Site using your Internet account, or your ability or inability to use the Site and Services, including any products purchased thereon.
14. THIRD-PARTY LINKS AND SITES
This Site may link to other websites operated by third parties. We have no control over these linked sites, each of which have separate privacy and data collection practices independent of Silk and Sonder, Inc.'s. We are not responsible for and do not endorse or accept any responsibility for the availability, contents, products, services or use of any third party site, any website accessed from a third party site or any changes or updates to such sites. These linked sites are only for your convenience and therefore you access them at your own risk. You acknowledge that you bear all risks associated with access to and use of content provided on a third party site and agree that we are not responsible for any loss or damage you may incur from dealing with such a third party site. You should contact the site administrator for the applicable third party site if you have any concerns regarding such links or the content located on any such third party site.
You agree that submission of any ideas, suggestions, documents, and/or proposals to us through its suggestion, feedback, wiki, forum or similar pages ( "Feedback" ) is at your own risk and that we have no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to us a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with our products and the operation and maintenance of the Site and Services.
16. ARBITRATION AGREEMENT
This Section 16 is referred to herein as the “Arbitration Agreement.” The parties agree that any and all controversies, claims, or disputes between them arising out of, relating to, or resulting from this Agreement, shall be subject to binding arbitration pursuant to the terms and conditions of this Arbitration Agreement, and not any court action (other than a small claims court action to the extent the claim qualifies). The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
This paragraph is the “Class Action Waiver”. THE PARTIES AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures (the “AAA Rules”), as modified by this Arbitration Agreement. If there is any inconsistency between the AAA Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would, including without limitation, the limitation of liability provisions in this Agreement. You may visit http://www.adr.org for information on the AAA and http://www.adr.org/fileacase for information on how to file a claim against us.
The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Silk and Sonder may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on each party, but subject to the arbitrator’s discretion to require an in-person hearing if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by either or both parties unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the state of California, without regard to its conflicts of laws rules, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Services users, but is bound by rulings in prior arbitrations involving you to the extent required by applicable law.
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA’s Rules. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees.
All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court decides that any term or provision of this Arbitration Agreement other than the Class Action Waiver is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court decides that any of the provisions of the Class Action Waiver is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of this Agreement will continue to apply.
This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to this Agreement or the Service that is not subject the Arbitration Agreement shall be filed only in the state or federal courts in California (or a small claims court of competent jurisdiction) and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without our prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
We shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages or delays of transportation or shipping facilities, fuel, energy, labor or materials.
Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
If any portion of this Agreement is held to be invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect. This is the entire agreement between us relating to the subject matter herein and shall not be modified except in a writing, signed by both parties, or by a Change to this Agreement made by us as set forth herein. Under this Agreement, you consent to receive communications from us electronically.
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.