End User License Agreement
Last Updated: December 28, 2020
Please read this End User License Agreement (the “Agreement”) carefully. Your use of the App or Website (each as defined below) constitutes your consent to this Agreement.
This Agreement is between you and Live, Give, Save, Inc., d/b/a Spave (“LGS,” “Spave,” “Company,” or “we” or “us”) concerning your use of (including any access to) the Spave® mobile application (together with any materials and services available therein, and successor app(s) thereto, the “App”) and Company’s website, located at https://www.spave.us (the “Website”). This Agreement hereby incorporates by this reference any additional terms and conditions posted by Company through the App or on our Website, or otherwise made available to you by Company.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH IN SECTION 26 BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OF ANY KIND.
- Your Use of the Services. In order to use most aspects of the App, you must register for and maintain an active account (“Account”). Account registration requires you to submit certain personal information, such as your name and e-mail address, address, social security number, date of birth, and other personally-identifiable information. You also must provide current and accurate information regarding your bank and financial institution accounts, to the extent you wish to use our App’s primary functionality. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access and use the App and its related services. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times.
- Changes. We may amend, modify or replace this Agreement from time to time by notifying you of such changes by any reasonable means, including by posting a revised Agreement on the App or on the Website. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Agreement incorporating such changes, or otherwise notified you of such changes; however, your use of the App following any changes to this Agreement will constitute your acceptance of such changes. The “Last Updated” legend above indicates when this Agreement was last changed. We may, at any time and without liability, modify or discontinue all or part of the App (including access to the App via any third-party links) or offer opportunities to some or all App users.
- Jurisdictional Issues. The App and the Website are controlled and operated from the United States and are not intended to subject Company to any non-U.S. jurisdiction or law. The App, the Website, and/or certain products or services available through the App, may not be appropriate or available for use in non-U.S. jurisdictions. Any use of the App, the Website, or any such products or services is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the App’s or the Website’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
- No Financial, Investment, Legal, Accounting or Tax Advice. The App and Website are intended solely for general informational purposes, and to provide you a tool in your financial management and charitable giving. The App and Website, however, do not, and should not be construed to, constitute or provide any financial, investment, legal, accounting, tax or other advice. Although we may from time-to-time provide you with insights and analysis into your spending trends or suggest financial-type products, you should not rely upon or otherwise use the App or the Website in connection with making any decisions or evaluating any financial, investment, legal, accounting, tax or other issues. We encourage you to consult financial, investment, legal, accounting and tax advisors with respect to any such issues. In addition, please note that nothing available through the App or Website is an offer to sell, or a solicitation of any offer to buy, any financial products, nor should any such content be used as the basis of any investment or other financial decision.
- Access Requirements and Conduct. The App and Website not available for use by persons under the age of 13, and you must be at least 13 years of age to obtain an Account. You may not authorize third parties to use your Account, and you may not allow persons under the age of 13 to access the App and Website or use our services. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when using the App and Website, and you may only use the App and Website for lawful purposes. In certain instances, you may be asked to provide proof of identity to access or use the App and Website, and you agree that you may be denied access to or use of the App and Website if you refuse to provide proof of identity.
- Network Access and Devices. You are responsible for obtaining the data network access necessary to use the App. Your mobile network’s data and messaging rates and fees may apply if you access or use the App from a wireless-enabled device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the App. Spave does not guarantee that the App, or any portion thereof, will function on any particular hardware or device. In addition, the App may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
- Rules of Conduct. You represent, warrant, and agree that in connection with the App and the Website, you must not:
- Post, transmit or otherwise make available through or in connection with the App any materials that are or may be: (a) threatening, harassing, degrading, hateful or intimidating, or otherwise fail to respect the rights and dignity of others; (b) defamatory, libelous, fraudulent or otherwise tortious; (c) obscene, vulgar, indecent, pornographic or otherwise objectionable; (d) false, inaccurate or misleading; or (e) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the applicable owner.
- Post, transmit or otherwise make available through or in connection with the App any virus, worm, Trojan horse, time bomb, spyware or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment (each, a “Virus”).
- Use the App for any commercial purpose, or for any purpose that is fraudulent or otherwise tortious or unlawful.
- Harvest or collect information about users of the App.
- Interfere with or disrupt the operation of the App or the servers or networks used to make the App available, including by hacking or defacing any portion of the App; or violate any requirement, procedure or policy of such servers or networks.
- Restrict or inhibit any other person from using the App or the Website.
- Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the App except as expressly authorized herein, without Company’s express prior written consent.
- Reverse engineer, decompile or disassemble any portion of the App or the Website, except where such restriction is expressly prohibited by applicable law.
- Remove any copyright, trademark or other proprietary rights notice from the App or the Website.
- Frame or mirror any portion of the App or the Website, or otherwise incorporate any portion of the App or the Website into any product or service, without Company’s express prior written consent.
- Systematically download and store App or Website content.
- Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather App or Website content, or reproduce or circumvent the navigational structure or presentation of the App or the Website, without Company’s express prior written consent.
Violation of any one or more of the foregoing rules may result in Spave withdrawing your ability to access or use the App.
- Products. The App and the Website may suggest, promote or make available listings, descriptions and images of goods or services (collectively, “Products”), as well as references and links to Products. Such Products may be made available for any purpose, including general information purposes. The availability through the App or the Website of any listing, description or image of a Product does not imply our endorsement of such Product or affiliation with the provider of such Product. 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 therein). Such information and the availability of any Product (including the validity of any associated coupon or discount) is subject to change at any time without notice. It is your responsibility to ascertain and obey all applicable local, state, federal and foreign laws (including minimum age requirements) regarding the possession, use and sale of any Product.
WE HAVE NO RESPONSIBILITY OR LIABILITY TO USERS OF THE APP OR THE WEBSITE FOR ANY SUCH THIRD-PARTY PRODUCTS, EXCEPT AS EXPRESSLY ACCEPTED HEREIN.
- Third-Party Services. Your use of the services provided through the App require you to accept the terms and services of our third-party service providers. These providers make available to us certain functionalities critical to our services. In particular, we have engaged the following providers:
- Plaid. Spave uses Plaid, Inc. (“Plaid”) to gather your data from financial institutions and check the balance of your funding account before initiating any transfers of funds. By using our service, you grant Company and Plaid the right, power, and authority to act on your behalf to access and transmit your personal and financial information from the relevant financial institution. You agree to your personal and financial information being transferred, stored, and processed by Plaid in accordance with its user terms and conditions, available at https://plaid.com/legal/.
- MakeMyDonation. MakeMyDonation is a donation processing service that we use to ensure that donations made by our users are 100% tax-deductible. MakeMyDonation is, essentially, an intermediary between your financial institution and the charities you select. As such, by setting up your account to provide for charitable contributions, you grant us the right to share your information with MakeMyDonation. You would also authorize MakeMyDonation to carry out charitable contributions on your behalf, in accordance with its user Terms and Conditions, available at https://makemydonation.org/terms-and-conditions/.
- Payment Authorization. You authorize Company to instruct financial institution partners (such as banks and credit unions), to automatically deduct via ACH direct debit any amount you designate in the App from your linked bank account. This authorization will remain in effect until cancelled by either (a) your election to alter or remove payments from within the App, or (b) by contacting Company at Support@spave.us with specific instructions regarding your updated preferences. Company may require up to three (3) business day prior notice in order to cancel any payment authorization. Should you have insufficient funds available in your linked bank account at the time of any debit initiated in accordance with your instruction by financial institution partners or other such bank partners, you may be charged an insufficient funds (“NSF”) fee by the financial institution partners or other such bank partners, subject to applicable law. In the event of an NSF fee, Company will have no obligation as it relates your unpaid liabilities, if any, and any resulting repercussions, including but not limited to penalties, interest, or cancellations, will be your responsibility and not the responsibility or liability whatsoever of Company. You authorize Company to electronically debit or credit your linked bank account to correct any erroneous debit or credits.
- Transactions. The App may allow you to enter into transactions with third parties, including in connection with Products. ANY SUCH TRANSACTIONS ARE SOLELY BETWEEN YOU AND SUCH THIRD PARTY AND COMPANY HAS NO RESPONSIBILITY OR LIABILITY TO USERS OF THE APP WITH RESPECT TO ANY SUCH TRANSACTIONS, INCLUDING WITH RESPECT TO THE PROCESSING OF ANY PAYMENTS FOR SUCH TRANSACTIONS.
- License/User Content. You retain ownership of any content you create and contribute to any interactive features of the App or the Website (your “Submissions” or “Content”). For each Submission, however, you hereby grant to us a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sub-licensable (through multiple tiers) license, without additional consideration to you or any third party, to reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify and otherwise use, analyze and exploit the Content thereof, in any format or media now known or hereafter developed, and for any purpose (including promotional purposes, such as testimonials).
In addition, if you provide to us any ideas, proposals, suggestions or other materials (“Feedback”), whether related to the App or otherwise, such Feedback will be deemed a Submission, and you hereby acknowledge and agree that such Feedback is not confidential, and that your provision of such Feedback is gratuitous, unsolicited and without restriction, and does not place Company under any fiduciary or other obligation.
You represent and warrant that you have all rights necessary to grant the licenses granted in this section, and that your Submissions, and your provision thereof through and in connection with the App, are complete and accurate, and comply in full with the Rules of Conduct set forth above. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding each Submission that you may have under any applicable law under any legal theory.
We reserve the right to remove any Content from Website or App at any time, in our sole discretion, including (without limitation) because we believe it may infringe another party’s rights. When we discover or become aware of a rights violation or any of our terms or policies (including, without limitation, the Rules of Conduct stated above), we may remove your Content from the Website or App, in whole or in part, or make it inaccessible to others. We reserve the right to terminate your Account and your use of our products and services if you violated this policy.
- Provide our products and services to you and others;
- Develop, monitor and improve our products and services;
- Conduct routine security inspections and prevent unauthorized use of the App or Website, as well as other channels through which we may provide services; and
- Collect, develop, create, extract or generate statistics and compile, synthesize and analyze such statistical data.
- Your Limited Rights. The App is licensed (not sold) to end users. Subject to your compliance with this Agreement, and solely for so long as you are permitted by Company to use the App, we hereby permit you, on a limited, non-exclusive, revocable, non-transferable, non-sub-licensable basis, to install and use the App on a mobile device that you own or control, solely for your personal, noncommercial use. If you fail to comply with any of the terms or conditions of this Agreement, you must immediately deactivate your Account, cease using the App and remove (that is, uninstall and delete) the App from your mobile device. We may cancel the license granted under this paragraph and discontinue your access to the App at any time, for any reason.
- Company’s Proprietary Rights. We own the Website and the App, which are protected by proprietary rights and laws. Our trade names, trademarks and service marks include LIVE.GIVE.SAVE., SPAVE and any associated logos. All trade names, trademarks, service marks and logos on the App not owned by us are the property of their respective owners. You may not use our trade names, trademarks, service marks or logos in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Nothing contained on the Website or the App should be construed as granting any right to use any trade names, trademarks, service marks or logos without the express prior written consent of the owner.
- Copyright Infringement. We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with Digital Millennium Copyright Act (“DMCA”) and are submitted in accordance with the policy set forth in this section. If you believe any materials accessible on or from the App or Website infringe your copyright, you may request removal of those materials (or access thereto) from the App or Website by submitting written notification to our copyright agent (designated below), which notice must include substantially the following:
- Identification of the copyrighted work that you claim has been infringed;
- Identification of the material that you claim is infringing and needs to be removed, including a description of where it is located on the App or Website so that our copyright agent can locate it;
- Your address, telephone number, and e-mail address, so that the copyright agent may contact you about your complaint; and
- A signed statement that the above information is accurate; that you have a good faith belief that the identified use of the material is not authorized by the copyright owner, its agent, or the law; and, under penalty of perjury, that you are the copyright owner or are authorized to act on the copyright owner’s behalf in this situation.
Our designated copyright agent to receive notices is:
Live, Give, Save, Inc.
Attn: Copyright Agent
1307 W. 6th Street,
Red Wing, Minnesota 55066
You should direct DMCA notices, as described above, to us via e-mail at firstname.lastname@example.org.
We reserve the right to disable access to or remove any content posted, submitted or uploaded by users to the Website or the App, including because it does or may infringe another party’s rights. Upon receipt of a DMCA notice of infringement that complies with this section, Spave will promptly disable access to or remove the content that is the subject of the notice.
If you believe Content you posted or shared on the Website or App was removed or that access to it was disabled by mistake, misidentification, malice or any other reason, you may file a counter-notice under the DMCA with us by emailing email@example.com. It is our policy to provide a copy of any DMCA counter-notice to the person who filed the original DMCA infringement notice. Under the DMCA, we may restore the removed or disabled content if the person who submitted the DMCA infringement notice does not file a court action against you within ten (10) business days of receiving your counter-notice.
- Third Party Materials; Links. The App may grant you access to information, products, services and other materials made available by third parties, including Submissions and Products (“Third Party Materials”), or allow for the routing or transmission of such Third Party Materials, including via links. By using such functionality, you are directing us to access, route and transmit to you the applicable Third Party Materials. We neither control nor endorse, nor are we responsible for, any Third Party Materials, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness or safety of Third Party Materials, or any intellectual property rights therein. Certain Third Party Materials may, among other things, be inaccurate, misleading or deceptive. Nothing in this Agreement shall be deemed to be a representation or warranty by Company with respect to any Third Party Materials. We have no obligation to monitor Third Party Materials, and we may block or disable access to any Third Party Materials (in whole or part) through the App at any time. In addition, the availability of any Third Party Materials through the App does not imply our endorsement of, or our affiliation with, any provider of such Third Party Materials, nor does such availability create any legal relationship between you and any such provider.
YOUR USE OF THIRD PARTY MATERIALS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY MATERIALS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY MATERIALS).
- DISCLAIMER OF WARRANTIES. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) THE APP AND ANY PRODUCTS AND THIRD PARTY MATERIALS ARE MADE AVAILABLE TO YOU ON AN “AS IS,” “WHERE IS” AND “WHERE AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY; AND (B) COMPANY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE APP AND ANY PRODUCTS AND THIRD PARTY MATERIALS, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH COMPANY AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “AFFILIATED ENTITIES”), AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
While we exercise great care to maintain the timeliness, integrity and security of the App and Website, we do not guarantee that the App or Website are or will remain updated, complete, correct or secure, or that access to the App or Website will be uninterrupted. The App and Website may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the App or Website. If you become aware of any such alteration, contact us at Support@spave.us with a description of such alteration and its location on the App.
- LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) COMPANY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, INCLUDING DAMAGES FOR LOSS OF PROFITS, USE OR DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF SUBMISSIONS (INCLUDING UNAUTHORIZED INTERCEPTION BY THIRD PARTIES OF ANY SUBMISSIONS), EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; (B) WITHOUT LIMITING THE FOREGOING, COMPANY WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE APP OR FROM ANY PRODUCTS OR THIRD PARTY MATERIALS, INCLUDING FROM ANY VIRUS THAT MAY BE TRANSMITTED IN CONNECTION THEREWITH; (C) YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE APP OR ANY PRODUCTS OR THIRD PARTY MATERIALS IS TO STOP USING THE APP; AND (D) THE MAXIMUM AGGREGATE LIABILITY OF COMPANY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE THE GREATER OF (I) THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO COMPANY SOLELY FOR THE RIGHT TO USE THE APP; AND (II) TEN U.S. DOLLARS ($10.00).
ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH COMPANY AND THE AFFILIATED ENTITIES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
- Indemnity. To the fullest extent permitted under applicable law, you agree to defend, indemnify and hold harmless Company and the Affiliated Entities, and their respective successors and assigns, from and against all claims, liabilities, damages, judgments, awards, losses, costs, expenses and fees (including attorneys’ fees) arising out of or relating to (a) your use of, or activities in connection with, the App and Website (including all Submissions); and (b) any violation or alleged violation of this Agreement by you or persons to whom you have granted access to your account.
- Governing Law; Arbitration. The terms of this Agreement are governed by the laws of the United States (including federal arbitration law) and the State of Minnesota, U.S.A., without regard to its principles of conflicts of law, and regardless of your location.
EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND COMPANY, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY AND YOU AGREE THAT COMPANY AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. YOU FURTHER AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION.
The terms and conditions of the foregoing arbitration agreement and class action waiver are set out in Appendix 1 to this Agreement.
- Information or Complaints. If you have a question or complaint regarding the App, Website, or these Terms, please send an email to Support@spave.us. You may also contact us by writing to Live.Give.Save., 1307 W. 6th Street, Red Wing, Minnesota 55066. Please note that e-mail communications will not necessarily be secure; accordingly, you should not include credit card information or other sensitive information in your e-mail correspondence with us. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
- Miscellaneous. This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, or franchisor-franchisee relationship between you and Company. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sub-license any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default under this Agreement will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in this Agreement shall be construed as if followed by the phrase “without limitation.” This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and Company relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Company relating to such subject matter. Notices to you (including notices of changes to this Agreement) may be made via posting to the App or Website or by e-mail (including in each case via links), or by regular mail. Without limitation, a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Company will not be responsible for any failure to fulfill any obligation due to any cause beyond its control.
Appendix 1: BINDING ARBITRATION AND CLASS ACTION WAIVER
The terms of this Appendix 1 (this “arbitration agreement”) are hereby incorporated by reference as part of Section 26 of the Agreement to which they are attached. Capitalized words and phrases used in this arbitration agreement without definition have the meanings given them in the Agreement.
- Governing Law. This arbitration agreement is intended by the parties to be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) (the “FAA”) to the fullest extent permitted by law. The parties mutually agree, in particular but without limitation, that if a court of competent jurisdiction finds that the FAA does not require or provide for enforcement of this arbitration agreement, then the laws of the State of Minnesota regarding enforcement of arbitration provisions shall apply.
- Application; Coverage. This arbitration agreement applies to any and all claims or controversies, past, present or future, arising out of or relating to the Agreement, this arbitration agreement, Company’s provision of services, any payments or money transfers made through the App, the termination of the Agreement, claims of harassment, retaliation, or discrimination and all other aspects of user’s relationship (or the termination of its relationship) with Company or its affiliates, whether arising under federal, state or local statutory and/or common law.
- Service. If either party initiates arbitration, the initiating party must notify the other party in writing via U.S. Mail, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include: (i) the name and address of the party seeking arbitration; (ii) a statement of the legal and factual basis of the claim; and (iii) a description of the remedy sought.
- Class and Collective Action Waivers. The parties mutually agree that by entering into this arbitration agreement, both waive their right to have any covered dispute or claim brought, heard or arbitrated as a class action and/or collective action, and an Arbitrator will not have any authority to hear or arbitrate any class and/or collective claim (“Class Action Waiver”). Notwithstanding any other clause contained in this arbitration agreement or the AAA Rules, as defined below, any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an Arbitrator. The Class Action Waiver will be severable from this arbitration agreement in any case, in which (1) the dispute is filed as a class and/or collective action and (2) there is a final judicial determination that all or part of the Class Action Waiver is invalid, unenforceable, unconscionable, void, or voidable. In such case, the class and/or collective action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration.
- Proceedings. Except as otherwise stated in this arbitration agreement, any arbitration shall be governed by the American Arbitration Association Commercial Arbitration Rules (“AAA Rules”), subject to the following:
- The arbitration shall be heard by one Arbitrator selected in accordance with the AAA Rules. Unless the parties agree otherwise, the Arbitrator shall be an attorney experienced in the law in the underlying dispute and licensed to practice law in the state in which the arbitration is convened or a former judge from any jurisdiction.
- Unless the parties agree otherwise, the arbitration will be conducted within 25 miles of the Spave’s headquarters. If the claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents submitted to the Arbitrator by the parties, unless the Arbitrator determines that a hearing is necessary.
- Unless applicable law provides otherwise, as determined by the Arbitrator, the parties agree that they will equally split all of the Arbitrator’s fees and costs. Each party will pay for its own costs and attorneys’ fees, if any. However, if any party prevails on a claim that affords the prevailing party attorneys’ fees, the Arbitrator may award reasonable fees to the prevailing party as provided by law. If the law (including the common law) of the jurisdiction in which the arbitration is held requires a different allocation of arbitral fees and costs for this arbitration agreement to be enforceable, then such law will be followed, and any disputes in that regard will be resolved by the Arbitrator.
- The Arbitrator is authorized to issue orders (including subpoenas to third parties) allowing the parties to conduct discovery sufficient to allow each party to prepare that party’s claims and/or defenses, taking into consideration that arbitration is intended to be a speedy and efficient method for resolving disputes.
- Except as provided in the Class Action Waiver, the Arbitrator may award all remedies to which a party is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The Arbitrator shall apply the state or federal substantive law, or both, as is applicable and be bound by applicable principles of law.
- The Arbitrator may hear motions to dismiss and/or motions for summary judgment and will apply the standards of the Federal Rules of Civil Procedure governing such motions.
- The Arbitrator’s decision or award shall be in writing with findings of fact and conclusions of law. Judgment may be entered on the Arbitrator’s decision or award in any court of competent jurisdiction.
- Either party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this Section 14 may be rendered ineffectual.
- Administrative Hearings. Regardless of any other terms of this arbitration agreement, claims may be brought before, and remedies awarded by, an administrative agency to the full extent applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate governed by the Federal Arbitration Act (such as the National Labor Relations Board, the U.S. Department of Labor or the Equal Employment Opportunity Commission). This arbitration agreement does not apply to any claim that may not be arbitrated as provided by an Act of Congress.
- References. The AAA Rules referenced herein may be found at www.adr.org or by searching for “AAA Commercial Arbitration Rules” using a service such as www.Google.com or www.Bing.com.
- Miscellaneous. This arbitration agreement is the full and complete agreement relating to the formal resolution of disputes covered by this arbitration agreement. If any portion of this arbitration agreement is deemed unenforceable, the remainder of this arbitration agreement will be enforceable. This arbitration agreement survives indefinitely after the termination of the Agreement and/or after a user disables their Account. Notwithstanding any contrary language, this arbitration agreement may not be modified or terminated absent a writing signed (electronically or otherwise) by both parties.