Terms of Service
Updated October 11, 2017
Arbitration NOTICE. Except for certain kinds of disputes described in Section 17, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND HIGHTHERE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 17).
You may receive a copy of these Terms by emailing us at: info@HighThere.com, Subject: Terms of Service Agreement.
- You must be at least 18 years old to use the Services. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Services; and (c) your registration and your use of the Services is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
- MODIFICATION OF THIS AGREEMENT. We reserve the right to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you may be required to accept the modified Terms in order to continue to use the Services. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
- There is no substitute for acting with caution when communicating with any stranger who wants to meet you. Never include your last name, e-mail address, home address, phone number, place of work, or any other identifying information in your profile on the Services or initial messages. Stop communicating with anyone who pressures you for personal or financial information or attempts in any way to trick you into revealing it. If you choose to have a face-to-face meeting with another User, always tell someone in your family or a friend where you are going and when you will return. Never agree to be picked up at your home. Always provide your own transportation to and from your meeting and meet in a public place with many people around. Anyone who is able to commit identity theft can also falsify a dating profile.
- BACKGROUND CHECKS. HighThere does not conduct background checks on Users. WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICE. HOWEVER, HIGHTHERE RESERVES THE RIGHT TO CONDUCT ANY CRIMINAL BACKGROUND CHECK OR OTHER SCREENINGS, AT ANY TIME AND USING AVAILABLE PUBLIC RECORDS.
- OWNERSHIP; PROPRIETARY RIGHTS. The Services are owned and operated by HighThere. The App, content, visual interfaces, information, graphics, design, compilation, computer code, products, software, services, including, but not limited to, the mobile device applications, and all other elements of the Services (collectively, the “Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international laws and conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Materials contained in the Services are the property of HighThere or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names displayed on the Services are proprietary to HighThere or its affiliates and/or third-party licensors. Except as expressly authorized by HighThere under these Terms, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials.
- YOU ARE PROHIBITED FROM DOING THE FOLLOWING IN CONNECTION WITH YOUR USE OF THE SERVICES:
- using the Services or any location information displayed within the Services to “stalk”, harass, abuse, defame, threaten or defraud other Users, or collect, attempt to collect, or store location or personal information about other Users;
- using the Services to distribute, buy, obtain, solicit or sell illegal substances;
- posting any content on the Services that violates federal, state or local laws, including any applicable rules, regulations or ordinances;
- including offensive or pornographic materials or materials that are harmful to minors in your Services personal profile page;
- using the Services for any commercial or non-private use;
- using the Services for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing the sale or distribution of controlled substances, solicitation, data protection and privacy, and import or export control;
- making unsolicited offers, advertisements, proposals, or send junk mail, to other Users. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures, surveying or requests to participate in surveys or studies;
- impersonating any person or entity, falsely claiming an affiliation with any person or entity, or accessing the Services accounts of other Users;
- misrepresenting the source, identity or content of information transmitted via the Services;
- displaying the App or profile data on any external display or monitor or in any public setting;
- removing, circumventing, disabling, damaging or otherwise interfering with security-related features of the Services, features that prevent or restrict use or copying of any content accessible through the Services, or features that enforce limitations on use of the Services;
- interfering with or damaging operation of the Services or any User’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code;
- posting, storing, sending, transmitting, or disseminating any information or material which a reasonable person could deem to be objectionable, defamatory, libelous, offensive, obscene, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically or otherwise offensive to any group or individual, intentionally misleading, false, or otherwise inappropriate, regardless of whether this material or its dissemination is unlawful;
- posting, storing, sending, transmitting, or disseminating any information or material which infringes any patents, trademarks, trade secrets, copyrights, or any other proprietary or intellectual property rights;
- using the Services with any products, systems, or applications installed or otherwise connected to or in communication with vehicles, or otherwise capable of vehicle navigation, positioning, dispatch, real time route guidance, fleet management, or similar applications;
- using the Services in connection with hazardous environments requiring fail-safe performance or any application in which the failure or inaccuracy of that application or the Services could lead directly to death, personal injury, or severe physical or property damage;
- attempting to gain unauthorized access to the Services, or any part of it, other accounts, computer systems or networks connected to the Services, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; and
- using any robot, spider, scraper or other automated means to access the Services for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Services or modify the Services in any manner or form, nor to use modified versions of the Services, including (without limitation) for the purpose of obtaining unauthorized access to the Services.
- ACCOUNTS; REFUSAL OR SUSPENSION OF SERVICE.
- You acknowledge that some of the Services may be accessed by downloading the Services to a mobile device without the need to register an account. You are responsible for the security on the mobile device on which the Services are installed. If you elect to register for an account with HighThere (“User Account”), you represent and warrant that: (i) all required registration information you submit is truthful and accurate; and (ii) you will maintain the accuracy of such information. You are responsible for maintaining the confidentiality of your User Account login information and the security of your mobile device, and are fully responsible for all activities that occur under your User Account. You agree to immediately notify HighThere of any unauthorized use, or suspected unauthorized use of your User Account or any other breach of security. HighThere cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. HighThere reserves the right to claim or reclaim any username, even if you have already registered it.
- HIGHTHERE RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO MONITOR ANY USER’S USE OF THE SERVICES, INCLUDING A USER’S REGISTRATION OR INVITE-A-FRIEND ATTEMPTS, AS WELL AS A USER’S USE OF OR ACCESS TO THE LOCATION INFORMATION AND PROFILES OF OTHER USERS.
- You alone are responsible for your interactions with other Users. You agree that HighThere will not be responsible for any loss or damage incurred as the result of any such interactions.
- USER SUBMISSIONS. The Services allow Users to submit content and other materials (such as pictures, ideas, notes, concepts, or creative suggestions) (“User Submissions”). User Submissions are owned by the User who submitted them, subject to HighThere’s license to such User Submissions under these Terms.
- You understand that when using the Services you will be exposed to User Submissions from a variety of sources, and that HighThere is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent or objectionable.
- HighThere assumes no responsibility whatsoever in connection with or arising from User Submissions. HighThere assumes no responsibility for actively monitoring User Submissions for inappropriate content. If at any time HighThere chooses, in its sole discretion, to monitor User Submissions, HighThere nonetheless assumes no responsibility for the content of the User Submissions, no obligation to modify or remove any inappropriate User Submissions, and no responsibility for the conduct of the User submitting User Submissions. Further, HighThere does not endorse and has no control over the content of User Submissions submitted by other Users. HighThere makes no warranties, express or implied, as to the content of User Submissions or the accuracy and reliability of any User Submissions. Nonetheless, HighThere reserves the right to prevent you from submitting User Submissions and to edit, restrict or remove User Submissions for any reason at any time.
- You hereby grant to HighThere a nonexclusive, royalty-free and fully paid-up, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of and otherwise use your User Submissions in order to include your User Submissions in the Services. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Submissions. We may also use your User Submissions in advertising and marketing materials, with your permission.
- You are solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with your User Submissions, you affirm, represent, and warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use, and authorize HighThere to use, all intellectual property and any other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Services and these Terms; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the User Submission to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Submissions in the manner contemplated by the Services and these Terms.
If you provide HighThere any feedback or suggestions regarding the Services (“Feedback”), you hereby assign to HighThere all rights in the Feedback and agree that HighThere will have the right to use such Feedback and related information in any manner it deems appropriate. HighThere will treat any Feedback you provide to HighThere as non-confidential and non-proprietary. You agree that you will not submit to HighThere any information or ideas that you consider to be confidential or proprietary.
- SENDING MESSAGES; INVITING FRIENDS
- The Services allow Users to send messages (“Messages”) to other Users. Sending Messages is a privilege, not a right, and HighThere may terminate such privileges of any User at any time and for any reason, without any liability to such User. If a User sends you an objectionable Message, then please notify us by sending an e-mail to email@example.com. You agree that HighThere may monitor Messages for compliance with these Terms, and therefore, Messages should not be considered confidential or proprietary. You hereby grant us an assignable, sublicensable, irrevocable license to reproduce and transmit your Messages in connection with facilitating transmission to the intended recipient through the Services and for such other purpose as HighThere may deem appropriate in its sole discretion.
- HighThere may offer you the ability to invite your friends to use the Services by sending them a text message from your phone. You represent and warrant you will only send text messages through the Services to people who have given you their express consent to be text messaged, and, to the fullest extent permitted by law, you hereby agree to indemnify and hold HighThere harmless from any and all claims arising out of your sending text messages to any person. You are responsible for all fees and charges associated with such messages.
- THIRD-PARTY SITES, PRODUCTS AND SERVICES; LINKS.
- The Services may include links to other web sites or services (“Third Party Websites”) solely as a convenience to Users. HighThere does not endorse any such Third Party Websites or the information, material, products or services contained on or accessible through Third Party Websites. Furthermore, HighThere makes no express or implied warranties with regard to the information, material, products or services that are contained on or accessible through Third Party Websites. Access and use of Third Party Websites, including information, material, products and services on linked sites or available through Third Party Websites is solely at your own risk.
- By your use of third party applications that connect with the Services (“Third Party Applications”), you acknowledge and agree that HighThere may transmit User Submissions to Third Party Websites or Third Party Applications through application protocol interfaces developed and maintained by those Third Party Websites or Third Party Applications. HighThere is not responsible for the transmission of the User Submissions from the Services to Third Party Websites or Third Party Applications, nor the use of the User Submissions on any Third Party Websites or Third Party Applications. You should review the terms of service and privacy policies of any Third Party Websites or Third Party Applications. HighThere is not responsible for and does not endorse any features, content, or other materials on or available from Third Party Websites or Third Party Applications. HighThere also does not screen, audit, or endorse Third Party Websites or Third Party Applications. Accordingly, if you decide to access Third Party Websites or Third Party Applications, you do so at your own risk and agree that your use of any Third Party Websites or Third Party Applications is on an “as-is” basis without any warranty as to the Third Party Websites or Third Party Applications actions, and that these Terms do not apply to your use of any Third Party Websites or Third Party Applications.
- LICENSE TO YOU.
- Mobile Device. To use the App, you must have a mobile device that is compatible with the Services. HighThere does not warrant that the Services will be compatible with your mobile device. While the HighThere App is free, please be aware your wireless carrier’s standard data and texting rates still apply.
- License Grant. Subject to the terms of these Terms, HighThere hereby grants you a non-exclusive, non-transferable, revocable license to (i) use a compiled code copy of the App for one Services account on one mobile device owned or leased solely by you, for your personal, noncommercial use and (ii) use the Services (other than the App) for your personal, noncommercial use.
- Restrictions. You may not: (i) modify, disassemble, decompile or reverse engineer the App, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the App to any third party or use the App to provide time sharing or similar services for any third party; (iii) make any copies of the App; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the App, features that prevent or restrict use or copying of any content accessible through the App, or features that enforce limitations on use of the App; or (v) delete the copyright and other proprietary rights notices on the App.
- Software Upgrades. You acknowledge that HighThere may from time to time issue upgraded versions of the App, and may automatically electronically upgrade the version of the App that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of these Terms will apply to all such upgrades. You agree that HighThere will not be liable to you for any such modifications.
- Rights Reserved. The foregoing license grant under these Terms is not a sale of the App or any copy thereof and HighThere or its third party partners or suppliers retain all right, title, and interest in the App (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms, is void. HighThere reserves all rights not expressly granted under these Terms.
- Termination. You agree that HighThere may terminate these Terms, any User Account you have with the Services, your use of the Services or any portion thereof and remove and discard all or any part of your User Account or any User Submission, at any time, for any reason. You agree that any termination of these Terms, your access to the Services or any account User Account you may have or portion thereof may be effected without prior notice, and you agree that HighThere will not be liable to you or any third-party for any such termination. Additionally, these Terms will terminate immediately upon your death.
- HIGHTHERE STORE
- Products. HighThere’s ecommerce store (the “Store”) offers a number of products for sale (“Products”). An “Order” is a confirmation of a purchase made by you from the Store that is issued by HighThere and specifies the Products ordered.
- Acceptance of Orders. Shipment of Products will be the sole evidence of HighThere’s acceptance of an Order. HighThere reserves the right, without prior notice, to limit the quantity of any Order and to refuse to complete any Order. HighThere also may request to verify information from you that it deems to be relevant before it ships any Order.
- Delivery. HighThere will use commercially reasonable efforts to meet reasonable delivery dates reflected in the Order; provided, however, that any such delivery dates are estimates only, are subject to change, and are not of the essence. HighThere will not be liable under any circumstances for its failure to meet the estimated delivery dates.
- Packing and Shipment. All Products will be shipped to the destination specified in the Order. Unless otherwise agreed to in writing by the parties, HighThere will select the carrier. Each partial shipment made under any Order will be treated as a separate transaction and payment therefor will be made accordingly.
- Title and Risk of Loss. Title and risk of loss to the Products will pass to you immediately upon delivery to the carrier. All freight, insurance and other shipping expenses will be paid by you.
- Payment Processor.
- General. HighThere uses a third-party payment processor for electronic commerce. HighThere’s third-party payment processor accepts payments through methods detailed on the applicable payment screen. Only those payment methods accepted by HighThere’s third-party payment processor can be used to pay for Products. Use of third-party payment services is subject to their terms and conditions of use. Those third parties may charge fees to process payments, and HighThere is not responsible for any fees charged by them. Without limiting anything in these Terms, HighThere disclaims all liability with regard to any fees or problems you have with third-party payment processors.
- Pre-Authorization. When you provide billing information to HighThere to pay for any Products, HighThere, through its third-party payment processor, may seek pre-authorization of your account prior to a purchase to verify the account is valid and/or that you have the necessary funds or credit available to cover the applicable purchase. These pre-authorizations may reduce your available balance by the authorization amount until it is released or reconciled with the actual charge.
- Fees. You agree to pay the purchase price for the Products as set forth in the Order, or if not specified, at HighThere’s then-current list price for the Products, plus all applicable sales, use, revenue, excise or other tax, fee, or charge of any nature imposed by any government or public authority applicable to the Products, or the manufacture, sale, delivery, shipment or use thereof, but excluding taxes payable by HighThere that are measured by its income (“Fees”). All Fees must be paid in US dollars.
- Returns. Certain Products are eligible for returns. You may return any unworn apparel within 30 days of your Order date. To be eligible for a refund, the original tags must still be affixed. Refunds will be made within a commercially reasonable time after HighThere receive the returned Product.
- Disclaimers. The inclusion of any Products on the Store does not imply or warrant than those Products will be available at any particular time. Products may be unavailable or may have different attributes or prices than those listed. The actual color of Products you see will depend in part on your computer system, and we cannot guarantee any color or texture or detail of actual Products will display accurately. Nothing in these Terms or any area of the Store will be construed as a representation or guarantee with respect to any Products. We do not guarantee the accuracy, completeness or usefulness of any descriptions or other content. In addition, we may make changes to information about price, availability or other Product attributes without notice.
- Compliance With Laws. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased from the Store. By placing an Order, you represent that the Products ordered will be used only in a lawful manner, in accordance with all applicable laws, rules and regulations.
- To the fullest extent permitted by law, you are responsible for your use of the Services, and you will defend and indemnify HighThere and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “HighThere Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your use of the Services or Products in a manner not authorized by these Terms; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
- DISCLAIMERS; NO WARRANTIES.
- TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES, PRODUCTS AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, HIGHTHERE DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICES, PRODUCTS, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES, INCLUDING: (I) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (II) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. HIGHTHERE DOES NOT WARRANT THAT THE SERVICES, PRODUCTS OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICES, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND HIGHTHERE DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES (INCLUDING THE STORE) OR HIGHTHERE ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE HIGHTHERE ENTITIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICES AND YOUR DEALING WITH ANY OTHER USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICES AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICES) OR ANY LOSS OF DATA, INCLUDING USER SUBMISSIONS.
- highthere does not disclaim any warranty or other right that highthere is prohibited from disclaiming Under law.
- LIMITATION OF LIABILITY AND DAMAGES.
- TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE HIGHTHERE ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICES, PRODUCTS OR ANY MATERIALS OR CONTENT ON THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY HIGHTHERE ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
- EXCEPT AS PROVIDED IN SECTION d(iii) AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE HIGHTHERE ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICES OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO HIGHTHERE FOR ACCESS TO AND USE OF THE SERVICES (INCLUDING FOR PRODUCTS) IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
- EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 15 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- DIGITAL MILLENNIUM COPYRIGHT ACT COMPLIANCE
- It is HighThere’s policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act. In addition, HighThere will promptly terminate without notice the accounts of Users that are determined by HighThere to be “repeat infringers.” A repeat infringer is a User who has been notified by HighThere of infringing activity violations more than twice and/or who has had a User Submission removed from the Services more than twice.
- If you are a copyright owner or an agent thereof, and you believe that any content hosted on any Services infringes your copyrights, then you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing HighThere’s Designated Copyright Agent with the following information in writing:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of the material that you claim is infringing and where it is located on the Services;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the use of the materials on the Services of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
- a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
- HighThere’s Designated Copyright Agent to receive notifications of claimed infringement can be reached as follows:
Green Mile Holdings, LLC
5550 Glades Road
Boca Raton, Florida 33431
- For clarity, only DMCA notices should go to the HighThere Designated Copyright Agent. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
- Generally. In the interest of resolving disputes between you and HighThere in the most expedient and cost effective manner, and except as described in Section b, you and HighThere agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND HIGHTHERE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Exceptions. Despite the provisions of Section a, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law in aid of arbitration; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
- Arbitrator. Any arbitration between you and HighThere will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at adr.org, by calling the AAA at 1-800-778-7879, or by contacting HighThere. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
- Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). HighThere’s address for Notice is: Green Mile Holdings, LLC, 5550 Glades Road, Suite 414, Boca Raton, FL 33431or firstname.lastname@example.org. The Notice of Arbitration must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or HighThere may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or HighThere must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, HighThere will pay you the highest of the following: (A) the amount awarded by the arbitrator, if any; (B) the last written settlement amount offered by HighThere in settlement of the dispute prior to the arbitrator’s award; or (C) $10,000.
- Fees. If you commence arbitration in accordance with these Terms, HighThere will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Miami-Dade County, Florida, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse HighThere for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions. YOU AND HIGHTHERE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and HighThere agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications to this Arbitration Provision. If HighThere makes any future change to this arbitration provision, other than a change to HighThere’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to HighThere’s address for Notice of Arbitration, in which case your account with HighThere will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
- Enforceability. If Section f is found to be unenforceable or if the entirety of this Section 0 is found to be unenforceable, then the entirety of this Section 17 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 18.a will govern any action arising out of or related to these Terms.
- Governing Law. These Terms are governed by the laws of the State of Florida without regard to conflict of law principles. You and HighThere submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Miami-Dade County, Florida for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Services from our offices in Florida, and we make no representation that any materials included in the Services are appropriate or available for use in other locations.
- Severability, Waiver. If any provision of these Terms is deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of these Terms will in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of these Terms will not be construed as a continuing waiver of other breaches of the same or other provisions of these Terms.
- Assignment. These Terms and any rights and licenses granted hereunder, may not be transferred or assigned by you. HighThere may at any time, for any reason transfer or assign this agreement and the obligations contained in these Terms to a third party, but may be assigned or transferred by HighThere without restriction.
- Survival. Sections 5, a, 7.c, 8.b, 8.d, 8.e, 12.i, and 13 – 18 survive any termination of these Terms or any termination of your use of or subscription to the Services.
- Export Restrictions. You agree to comply with all applicable export and re-export control laws and regulations applicable to the products, software, technology and documentation received from HighThere under these Terms, including the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations maintained by the U.S. Department of State.
- Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
- Contact. The services hereunder are offered by Green Mile Holdings, LLC, 5550 Glades Road, Suite 414, Boca Raton, FL 33431. General Inquiries: info@HighThere.com.
- NOTICE REGARDING APPLE. This Section 19 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and HighThere only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Services or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Services. If the Services fail to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Services. Apple is not responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Services, including: (a) product liability claims; (b) any claim that the Services fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Services and/or your possession and use of the Services infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Services. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.