PLEASE READ THESE TERMS OF SERVICES (“TERMS”) CAREFULLY. Digital Media Share LLC, an Illinois limited liability company (“Taggable”, “Company”, “we”, “us”, or “our”) offers a platform (the, “Platform”) for you to search for, view, purchase, download, and share photographs and videos (“Digital Media”) taken of you while participating in unique experiences with various tour operators, attractions, concerts, and events (each, an “Experience”). The Platform is accessible via a QR code provided by the operator (each, a “Operator”) of the experience you participated in and via our app or website located at: https://Taggable.com/ (collectively, the “Site”). The Platform and the services offered via the Site and Platform will be referred to as the “Services.”
These Terms set forth the legally binding terms and conditions that govern your use of the SERVICES. BY scanning a qr code linking to the services, CLICKING ON THE “I ACCEPT” BUTTON, CREATING AN ACCOUNT, AND/OR ACCESSING OR USING THE SITE OR SERVICES, you (“USER” OR “YOU”) are accepting these Terms, and you represent and warrant that you have the right, authority, and capacity to enter into these Terms. If you do not agree with all of these Terms do not access and/or use THE SITE OR SERVICES.
Summary of Terms. These Terms govern your use Taggable’s Services and you should read these terms in their entirety; however, below are a few provisions we want to highlight for you:
- To purchase photos and videos, you need to create an Account.
- Using the Services requires that (i) you provide your name, email address, phone number, date of birth, zip code, and any other information we request, and (ii) you will need to consent to have your face scanned by facial recognition software.
- We only use the data from the facial recognition scan to provide the Services, and we do not save, share, or otherwise use such data. We also delete such data after we find your photos and videos in our database.
- By using the Services, you are granting a license to Taggable to share your name, email address, phone number, date of birth, zip code and any other information you provide us, including Account information, with Operators, and for such Operators to use such information for publicity and marketing purposes.
- We will grant you a broad irrevocable license to the photos and/or videos you purchase from us.
- All sales are final, and we do not provide refunds.
- These Terms are subject to change by Taggable, in its sole discretion, at any time.
- THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
PLEASE BE AWARE THAT SECTION 11.1 OF these terms, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF these terms. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR ACCESS AND/OR USE OF THE SITE OR Services WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF Illinois CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM these terms.
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 these Terms or will be presented to you for your acceptance when you sign up to use the supplemental Services. If these Terms are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Services. The Supplemental Terms are incorporated by reference into these Terms.
PLEASE NOTE THAT The Terms are subject to change by Company in its sole discretion at any time. When changes are made, Company will make a new copy of the Terms available at the Site. We will also update the “Last Updated” date at the bottom of the Terms. If we make any material changes, and you have registered with us to create an Account (defined in Section 1.1 below) we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms. Any changes to the Terms will be effective immediately for new users of the Services and Site visitors and will be effective thirty (30) days after posting notice of such changes on the Site for existing users, provided that any material changes shall be effective for users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Site or thirty (30) days after dispatch of an e-mail notice of such changes to existing users. Company may require you to provide consent to the updated Terms in a specified manner before further use of the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Site and/or the Services. Otherwise, your continued use of the Site and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE SITE TO VIEW THE THEN-CURRENT TERMS.
- Services and Accounts
- How Services Operate. During Experiences, you may request and/or consent that Operators take videos and photographs of you (“Guest Media”). If you wish to purchase such Guest Media the Operator will provide you a QR code which you can scan on your mobile device. The QR code will send you to our Platform. You will need to register for an account (“Account”) and provide certain information about yourself as prompted by the account registration process. In creating an Account, we ask that you provide complete and accurate information about yourself. Certain features of the Services will prompt you to take a photograph of yourself, and consent to your face being scanned by facial recognition software. If you do not consent to Taggable’s facial recognition scan of your face you may not use the Platform. Registering for an Account is required for use of certain aspects of the Services including purchasing Guest Media. You represent and warrant that: (a) all required registration information you submit is truthful and accurate and (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by emailing support@Taggable.com. Company may suspend or terminate your Account in accordance with Section 10. By using the Services, you hereby grant Taggable the right to send certain information you provide to us, including your name, email, phone number, zip code, and date of birth (excluding your picture, unless you have given us permission) and other information you have provided us, including your Account information, to the Operator who submitted Guest Media to Taggable, for such Operator’s marketing and publicity purposes.
- Why and How We Use Facial Recognition Software.
- Quickly Identify Guest Media and Provide Personalized Service. We utilize the data from facial recognition scans to quickly filter through all the Digital Media we received from Operators to identify only those photographs and videos that contain images of you. This ensures that you will only spend time reviewing photographs and videos of you and not of other users.
- Safe and Secure Environment. We also utilize facial recognition scans to provide a safe and secure environment for you to review and purchase Guest Media. You will only be permitted to review and purchase Digital Media that our scans conclude contain images of you. Not only does this greatly reduce the time it takes you to review and select photos and videos for purchase, it also provides a safe, secure, and personalized review process by preventing third parties from reviewing and purchasing images of you.
- Account Responsibilities. Company prohibits the creation of, and you agree that you will not, create an Account for anyone other than yourself or for your own personal purposes. You may not impersonate someone else or provide an email address other than your own. You are responsible for all activities that occur under your Account. You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Company will not be liable for any loss or damage arising from your failure to comply with the above requirements.
- Age Requirements. You must be at least 18 years old to use the Services.
- Access to the Services
- Grant of Rights. Subject to these Terms, Company grants you a non-transferable, non-sublicensable, non-exclusive, revocable, limited right to access the Site and to use the features and functionality of the Services to browse and purchase Guest Media and other items displayed on the Site or Services solely for your own personal use.
- Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site or Services, whether in whole or in part, or any content displayed on the Site or Services by Company; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or Services; (c) you shall not access the Site or Services in order to build a similar or competitive website, product, or service; and (d) 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. Unless otherwise indicated, any future release, update, or other addition to functionality of the Site or Services shall be subject to these Terms. All copyright and other proprietary notices on the Site or Services (or on any content displayed on the Site or Service) must be retained on all copies thereof.
- Changes to the Services. Company is constantly changing and improving the Services. We may also need to alter or discontinue the Services, or any part of it, in order to make performance or security improvements, change functionality and features, make changes to comply with law, or prevent illegal activities on or abuse of our systems. These changes may affect all users, some users or even an individual user. Whenever reasonably possible, we will provide notice when we discontinue or make material changes to our Services that will have an adverse impact on the use of our Services. However, you understand and agree that there will be times when we make such changes without notice, such as where we feel we need to take action to improve the security and operability of our Services, prevent abuse, or comply with legal requirements.
- Excluding your User Content and Purchased Media (each defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Services and its content are owned by Company or Company’s suppliers. Neither these Terms (nor your access to and/or use of the Site or Services) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 2.1. Company and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms. Using the Services does not give you ownership of or rights to any aspect of the Services, including any content displayed on the Site or Services by other users or Company.
- Open-Source. Some software used in our Services may be offered under an open source license that we make available to you. There may be provisions in an open source license that expressly override some of these terms, so please be sure to read those licenses.
- You hereby grant to Company a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback you provide relating to the Services (“Feedback”). Company will treat any Feedback you provide to Company as non-confidential and non-proprietary. You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary.
- What information we may collect about you;
- What we use that information for; and
- With whom we share that information.
- Content and Guest Media
- User Content
- “User Content” means any and all information and content that a user makes available in connection with their use of the Services, including, but not limited to, text (such as comments), messages, and any videos, audio, graphics, photos, text, and other materials made available in connection therewith. You are solely responsible for your User Content. You assume all risks associated with use of your User Content. You represent and warrant that your User Content does not violate our Acceptable Use Policy.
- Removing User Content. You must remove your User Content if you no longer have the rights required by these Terms. If we reasonably believe that any of User Content is in breach of these Terms or may cause harm to Company, our users, or third parties, we may remove or take down that User Content in our discretion. We will use reasonable efforts to notify you with the reason for any such removal or take down unless we reasonably believe that to do so: (i) would violate the law or the direction of a legal enforcement authority or would otherwise risk legal liability for Company; (ii) would compromise an investigation or the integrity or operation of the Services; or (iii) would cause harm to any user, other third party, or Company.
- You retain ownership rights in your User Content. However, we do require you to grant certain rights to Company, as described below. By making available User Content in connection with your use of the Services, you grant to Company a worldwide, non-exclusive, royalty-free, sublicensable, and transferable license to use your User Content (including to reproduce, distribute, prepare derivative works, display and perform it) for the purposes of promoting, operating, providing, and improving the Services to and for you and our other users. The licenses granted by you continue for a commercially reasonable period of time after you remove or delete your User Content from the Services. You understand and agree, however, that Company may retain, but not display, distribute, or perform, server copies of your User Content that have been removed or deleted.
- Purchased Media and Licenses.
- Purchased Media. If you decided to purchase Guest Media from Taggable, subject to your compliance with these Terms (including payment of all applicable fees), Taggable hereby grants to you an irrevocable, nonexclusive license to reproduce, distribute, create derivative works of, perform, and display such Guest Media (“Purchased Media”). The Platform will permit you download any Purchased Media for up to thirty (30) days after your purchase. After such thirty-day period, Taggable may delete the Purchased Media from its databases unless you have purchased media storage from Taggable. You acknowledge and agree that images of you may be in the background of other user’s Purchased Media.
- Publicity Release. After a completed sale of Purchased Media, we may send you an email requesting that you grant us and the Operator a release to use your Purchased Media for any lawful purpose, including publicity and marketing purposes. If you agree to a publicity release (in response to the email or otherwise), the following applies:
You hereby irrevocably grant to Taggable, its affiliates, and each of their successors, designees, licensees, and assigns, a royalty-free, worldwide, non-exclusive, perpetual, transferable, sub-licensable (including to Operators) license to use, copy, create derivative works of, distribute, publicly perform, and publicly display your image, photograph, videos, name, likeness, voice, or recording of any Purchased Media (“Licensed Media”) and any portion thereof in connection with Taggable’s and or sublicensee’s (including Operators) marketing, promotion, advertisement, publication, and/or merchandising purposes, and other lawful purposes; throughout the world, through multiple levels of sublicensees, in any and all formats, and media, now known and hereafter devised. You understand that you will not have any right of approval or receive any compensation as a result of any use of the Licensed Media as described in this release. You waive any moral rights, rights of privacy and rights of publicity that exist now or that may be created in the future with regard to the Licensed Media and any derivative works thereof. No use of Licensed Media shall be the basis of any claim of any kind against Taggable or its employees, officers, directors, agents, successors, licensees and assigns, nor shall this release be made the basis of any such claim. This release shall be binding on you, your heirs, representatives, successors and assigns. You hereby represent and warrant that you have read and fully understands the terms of this release, and have the full right and authority to enter into this release.
- Deletion of Guest Media. Taggable may delete all Guest Media we have in our possession, including Purchased Media, thirty (30) days after your purchase of any Guest Media. If you do not choose to purchase any Guest Media, all such Guest Media will be deleted thirty (30) days after it was submitted to Taggable by the applicable Operator.
- Acceptable Use Policy. The following terms constitute our “Acceptable Use Policy”:
- You agree not to use the Services in any manner that (i) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) is harmful to minors in any way; or (iv) is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
- You agree not to: (i) upload, transmit, or distribute to or through the Services any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) use the Services to harvest, collect, gather or assemble information or data regarding other users; (iii) interfere with, disrupt, or create an undue burden on servers or networks connected to the Services, or violate the regulations, policies or procedures of such networks; (iv) attempt to gain unauthorized access to the Services (or to other computer systems or networks connected to or used together with the Services), whether through password mining or any other means; (v) use software or automated agents or scripts to produce multiple accounts on the Services, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Services; or (vii) misuse any reporting, flagging, complaint, dispute, or appeals process made available via the Services, including by making groundless, vexatious, or frivolous submissions.
- Fees and Payments
- Orders. Users are responsible for the payment of all applicable fees for any orders placed via the Services via our Payment Processors (defined in Section 5.3 below) in accordance with the fees, charges, and billing terms in effect at the time an order is placed. You must provide the applicable Payment Processor with a valid credit card (e.g., Visa or MasterCard) or other accepted payment method (e.g., Apple Pay) (each provider of such a payment method, a “Payment Provider”). Your Payment Provider agreement governs your use of the designated payment method, and you must refer to that agreement and not these Terms to determine your rights and liabilities. By providing the applicable Payment Processor with your payment method and associated payment information, you agree that such Payment Processor is authorized to charge your payment method for all orders placed via the Service.
- Order Terms. Operators may offer you promotions or discounts to be applied to your purchase of Guest Media. We will only honor such discounts and/or promotions that we have formally agreed to with the Operator. You should contact the applicable Operator if you have any questions regarding a promotion or discount before purchasing Guest Media. All sales are final, and we do not offer refunds.
- Company’s fees are net of any applicable Sales Tax, and if any Services, or payments for any Services, under these Terms are subject to Sales Tax in any jurisdiction Company may add such Sales Tax to your purchase. If Sales Taxes are added to your purchase you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Company 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. For purposes of this Section 5.2, “Sales Tax” will mean any sales or use tax, and any other tax measured by sales proceeds, that Company is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax. You agree to make all payments of fees to Company free and clear of, and without reduction for, any withholding taxes.
- Payment Processing. Company currently uses and reserves the right to continue using third party payment providers (“Payment Processors”). Your making of any electronic payment through any Payment Processor is also governed by the applicable Payment Processor’s terms of service. You must provide accurate and complete payment information and you authorize us to share this information with the applicable Payment Processor and authorize Company and the Payment Processors to share any information and payment instructions you provide to the extent required to complete the payment services. All payment information is sent directly to and stored with the applicable Payment Processor using their security protocols. Company does not store your payment information on its systems and shall not have any responsibility for the safety or security of that information. We may change or add other Payment Processors at any time with or without notice to you, and your use of payment services via such Payment Processors may be subject to additional terms or conditions.
- To the extent permitted by applicable law, you agree to indemnify and hold Company (and its officers, directors, employees, and agents) harmless, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from (a) your use of or access to the Site and/or Services, (b) your User Content, (c) your violation of these Terms; or (d) your violation of applicable laws, rules or regulations. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
- Third-Party Links; Other Users; No Solicitation; and Release
- Operators and Release. The Services can be used to purchase Guest Media taken/recorded by Operators; however, Company makes no warranties or representations whatsoever with regard to any goods or services provided by Operators. If you have a dispute with an Operator you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release, you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
OTHER THAN AS EXPRESSLY STATED IN THESE TERMS OR AS REQUIRED BY LAW, THE SITE AND SERVICES ARE PROVIDED “AS IS” AND COMPANY AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY REPRESENTATIONS, WARRANTIES, OR GUARANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. COMPANY AND OUR SUPPLIERS MAKE NO WARRANTIES ABOUT: (A) THE CONTENT PROVIDED THROUGH THE SERVICES (INCLUDING DIGITAL MEDIA); (B) THE SPECIFIC FEATURES OF THE SITE OR SERVICES, OR THEIR ACCURACY, RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS; (C) THAT ANY USER CONTENT YOU SUBMIT WILL BE ACCESSIBLE ON THE SERVICES; OR (D) THAT THE SERVICES WILL BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
- Limitation on Liability
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL THE COMPANY (OR ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS) BE LIABLE FOR ANY LOSS OF ANTICIPATED SAVINGS, LOSS OR CORRUPTION OF DATA, OR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SITE AND/OR SERVICES OR THESE TERMS, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ON ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY.
COMPANY’S TOTAL LIABILITY TO YOU FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SITE AND/OR SERVICES OR THESE TERMS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS (U.S. $50), AND (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
- Account Suspension and Termination
- Termination by You. You may stop using the Services at any time. You may delete your Account at any time, for any reason, by emailing support@Taggable.com, which may involve the removal of all data in your Account.
- Termination and Suspension by Company. Company may suspend or terminate your access, your Account, or your Account’s access to all or part of the Site and/or Services if (a) you materially or repeatedly breach these Terms; (b) we are required to do so to comply with a legal requirement or a court order; (c) we believe there has been conduct that creates (or could create) liability or harm to any user, other third party, or Company; or (d) Company believes, in its sole discretion, that provision of the Services to you is no longer commercially viable.
- Notice for Termination or Suspension. We will notify you with the reason for termination or suspension by Company unless we reasonably believe that to do so: (a) would violate the law or the direction of a legal enforcement authority, or would otherwise risk legal liability for Company; (b) would compromise an investigation or the integrity or operation of the Service; or (c) would cause harm to any user, other third party, or Company.
- Effect of Termination or Suspension. If your Account is terminated or your Account’s access to the Services is restricted, you may continue using certain aspects of the Services (such as viewing only) without an Account, and these Terms will continue to apply to such use. If you believe your Account has been terminated in error, you can contact us at support@Taggable.com. You understand that any termination of your Account may involve deletion of your User Content and Guest Media (including any Purchased Media) associated with your Account from our live databases. Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 2.2, 2.4, 2.6, and 4 –11.
- Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Company and limits the manner in which you can seek relief from us.
- Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Site and/or Services or to any aspect of your relationship with Company, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, and (2) you or Company 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). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of these Terms or any prior version of these Terms.
- Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send us a letter requesting arbitration and describing your claim which should be sent to, Attn: Digital Media Share LLC, Attn: Arbitration Request, 321 N Loomis St., Suite 101, Chicago, IL 60607. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Company will pay them for you. In addition, Company will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Company. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these Terms (including the Arbitration Agreement). 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 arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
- Waiver of Jury Trial. YOU AND COMPANY 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 Company are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 11.1(a) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
- Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the state or federal courts located in the State of Colorado. All other claims shall be arbitrated.
- 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 support@Taggable.com within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Company username (if any), the email address you used to set up your Company 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.
- Severability. Except as provided in subsection 11.1(e), 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.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
- Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if Company makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Company at support@Taggable.com.
- International Users. The Site and/or Services can be accessed from countries around the world and may contain references to Services that is not available in your country. These references do not imply that Company intends to announce such Services in your country. The Site and Services are controlled and offered by Company from its facilities in the United States of America. Company makes no representations that the Site and/or Services are appropriate or available for use in other locations. Those who access or use the Site and/or Services from other countries do so at their own volition and are responsible for compliance with local law.
- Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Company agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in the State of Illinois.
- Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of Illinois, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
- The Site and/or Services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.
- Electronic Communications. The communications between you and Company use electronic means, whether you use the Site and/or Services or send us emails, or whether Company posts notices on the Site and/or Services or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in a hardcopy writing. The foregoing does not affect your non-waivable rights.
- Where Company requires that you provide an e-mail address, you are responsible for providing Company with your most current e-mail address. In the event that the last e-mail address you provided to Company is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. Except as otherwise noted, you may give notice to Company at the following address: Digital Share LLC, Attn: Legal – Terms of Service, 321 N Loomis St, Suite 101 Chicago, IL 60607, or email address: support@Taggable.com. Such notice shall be deemed given when received by Company by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address or, with respect to emails, upon confirmation that the email was received.
- Force Majeure. Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, pandemic, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
- Entire Agreement. These Terms constitute the entire agreement between you and us regarding the access to or use of the Site and/or Services. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Company is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Company may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
- Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Site or Services, please contact us at support@Taggable.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
- Copyright/Trademark Information. All trademarks, logos, and service marks (“Marks”) displayed on the Site or within the Services are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
- Consumer Complaints. 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.
- Contact Information:
- Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Company and limits the manner in which you can seek relief from us.
Digital Media Share LLC, dba Taggable
Attn: Legal – Terms of Service
321 N Loomis St, Suite 101
Chicago, IL 60607
Last Updated: March 19, 2021