Effective Date: May 1, 2018
Last Updated Date: April 20, 2018
Welcome, and thank you for your interest in OnboardIQ, Inc. (“Fountain,” “We,” or “Us”). These terms of service (“Terms”) establish the terms and conditions that apply to you when you use the Services (as defined below).
AS DESCRIBED BELOW, THESE TERMS PROVIDE FOR 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. YOU CAN OPT-OUT OF THIS AGREEMENT TO ARBITRATE BY CONTACTING [email protected] WITHIN 30 DAYS OF FIRST ACCEPTING THESE TERMS AND STATING THAT YOU (INCLUDE YOUR FIRST AND LAST NAME) DECLINE THIS ARBITRATION AGREEMENT.
1. Use of the Services
- The “Services” collectively refers to Fountain’s website, mobile application, API, and any other online services offered by Fountain, its affiliates, or subsidiaries, as each may be updated, relocated, or otherwise modified from time to time, and all intellectual property contained therein. The Services allow individuals seeking employment opportunities (“Prospective Hires”) to connect with organizations seeking to fill employment openings (“Employers”). The Service also provides functionality to assist Employers in processing job applications. Any person who accesses and/or uses the Service, whether as an Employer or Prospective Hire, or on his or her own behalf or on behalf of any third party, will be referred to herein as a “Fountain User.”
- Your Fountain membership is personal to you and you cannot share discount codes with, or transfer or gift classes to third parties, including other Fountain participants. Also, Fountain may not be used for commercial purposes. To use the Site, you must have access to the Internet.
- Subject to the terms and conditions of these Terms, Fountain hereby grants you a limited revocable, non-exclusive, non-transferable license to access and use the Services solely for your own internal use or for the internal use of the entity on whose behalf you are authorized to act. Fountain reserves the right at all times and without notice to: (i) restrict, deactivate, and/or terminate your access to the Services (or any portion thereof); and (ii) modify or discontinue providing the Services (or any portion thereof). You agree that Fountain will not be liable to you or any third party for any termination or modification to the Services regardless of the reason for such termination or modification. You acknowledge that your only right with respect to any dissatisfaction with any modification or discontinuation of Services made by us is to terminate your use of the Services.
2. Registration, Accounts, Passwords, and Security
- Fountain Users. In order to become a Fountain User, you must complete the registration process by providing Fountain with current, complete and accurate information, as prompted by the applicable registration form.
- Accuracy of Information. You acknowledge that in the event you provide any information to Fountain which is untrue, inaccurate, not current or incomplete, Fountain may terminate these Terms and your continued access and use of the Services.
i. You represent and warrant that you are at least 18 years of age and that you have not been previously suspended or removed from the Services. THE SERVICES ARE NOT FOR PERSONS UNDER THE AGE OF 18 OR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICES BY FOUNTAIN. IF YOU ARE UNDER 18 YEARS OF AGE, PLEASE DO NOT USE OR ACCESS THE SERVICES AT ANY TIME OR IN ANY MANNER.
ii. If you are using the Services on behalf of an individual, company, entity, or organization (each, an “Organization”), you represent and warrant that (A) you are an authorized representative of such Organization with the authority to bind such Organization to these Terms, (B) agree to be bound by these Terms on behalf of such Organization, and (C) your Organization meets the eligibility requirements for the Services, as set forth in these Terms. Further, you will be solely responsible for ensuring your Organization complies with these Terms.
- Credentials. As part of the registration process, you will be asked to select a username and password. You are entirely responsible for maintaining the security and confidentiality of your account and password. You agree to notify Fountain immediately of any unauthorized use of your account or any other breach of security. To notify us, contact us at [email protected] You are responsible for all use of the Services occurring under your user name and all content posted in your profile or with your account elsewhere on the Services. You are responsible for keeping your password confidential and for notifying us if your password has been hacked or stolen. Fountain will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. You may be held liable for any losses incurred by Fountain or another party due to someone else using your account or password.
3. Your Responsibilities.
You may use the Services solely for lawful purposes, as intended through the provided functionality of the Services. You may not use the Services in any manner that could damage, disable, overburden, or impair our servers or networks, or interfere with any other party’s use and enjoyment of the Services. You may not attempt to gain unauthorized access to the Services, user accounts, or computer systems or networks, through hacking, password mining or any other means. Without limiting any of the foregoing, you expressly agree that you will not (and you agree not to allow or assist any third party to):
- modify, alter, reproduce, or distribute the Services;
- rent, lease, lend, sell, redistribute, or sublicense the Services;
- copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of any portion of the Services, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or the terms of any Third Party Service (as defined below));
- attempt to disable or circumvent any security or other technological measure designed to protect the Services or any content available through the Services;
- remove or alter any copyright, trademark or other proprietary rights notices contained in or on the Services or in or on any content or other material obtained through the Services or the use of the Services;
- create user accounts by automated means or under false or fraudulent pretenses;
- use any robot, spider, screen or database scraper, site search or retrieval application, or other automated device, process or means to access, retrieve or index any portion of the Services;
- probe, scan, or test the vulnerability of any system or network or breach any security or authentication measures;
- reformat, mirror, or frame any portion of the web pages that are part of the Services;
- post or transmit (i) any content or information that is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, contains offensive language (e.g., words that are customarily considered “curse words”), or nudity, (ii) any material, non-public information about individuals or companies without the authorization to do so, (iii) any trade secret of any third party, and/or (iv) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities, or other unsolicited commercial communication (except as otherwise expressly permitted by us), or engage in spamming or flooding;
- transmit any software or other materials that contain any virus, worm, time bomb, Trojan horse, or other harmful or disruptive component; use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Services or its contents;
- harvest or collect information about other users without their prior written consent;
- otherwise engage in activities that could violate the privacy rights of others;
- harass, abuse, harm or advocate or incite harassment, abuse or harm of another person or group, including Fountain employees and other users;
- create a new account with Fountain, without Fountain’s express written consent, if Fountain previously disabled an account of yours;
- violate any applicable federal, state or local laws, regulations or these Terms; nor
- use or access the Services to build a competing service.
We may take any legal action and implement any technical remedies to prevent the violation of these provisions and to enforce these Terms.
4. Consent to Electronic Communications and Text Messaging
- SMS Text Messages and Push Notifications. When you register with Fountain, Fountain will send you an SMS text message containing a 4-digit code in order to verify your phone number and will send SMS text messages and push notifications (“Messages and Notifications”) in order to keep you informed about the Services. By using the Services, you agree to receive Messages and Notifications regarding your use of the Services. SMS text messages are for informational purposes only. While Messages and Notifications are intended to enhance your use of the Services, you may (i) disable push notifications on your device, and/or (ii) reply “STOP” to remove yourself from our text message database. Depending on your current carrier plan, you may incur charges for these Messages and Notifications and agree to not hold Fountain liable for any charges incurred. You acknowledge that any terms between you and any third-party provider (such as, for example, Apple®, Android™, or Verizon) create no obligation or responsibility on the part of Fountain, and that Fountain is not responsible for any failure of warranty by any such third party. Fountain cannot control certain factors relating to message delivery. You acknowledge that, depending on your mobile carrier’s service, it may not be possible to transmit a text message to you successfully. We have no liability for transmission delays or message failures.
5. User Content
- User Content Generally. Certain features of the Services permit Fountain Users to upload content to the Services, including comments, photos, video, images, data, text, and other types of works ("User Content") and to publish User Content on the Services. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Services.
- Limited License Grant to Fountain. By posting or publishing User Content, you grant Fountain a worldwide, perpetual, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any and all media or distribution methods (now known or later developed) in accordance with the settings on your account and the features of the Services you elect to utilize. However, Fountain may use that User Content for other purposes provided that it does not specifically identify you as the source of that content.
- Limited License Grant to Other Users. By posting or sharing User Content with other users of the Services, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Services.
- Restrictions; Data Retention. You agree that Fountain will have no responsibility or liability with respect to any User Content that is processed, transmitted, disclosed, or stored in connection with the Services. Fountain is not responsible for performing, and is not liable for any failure to perform, any back-up of any User Content provided, processed, or stored in or through the Services. Fountain recommends that you perform regular exports and back-ups of your User Content.
- User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:
i. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Fountain and other Fountain Users of the Services to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by Fountain, the Services, and these Terms; and
ii. Your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (A) infringe, violate, or misappropriate 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; (B) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person or organization; or (C) cause Fountain to violate any law or regulation.
- User Content Disclaimer. We are under no obligation to edit or control User Content that you or other Fountain Users post or publish, and will not be in any way responsible or liable for User Content. Fountain may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Services you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Fountain with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Fountain does not permit copyright-infringing activities on the Services.
- Publicity. If you are an entity or organization, you agree that Fountain may list your entity or organization as a customer of Fountain and use your entity or organization name and logo for marketing or promotional purposes and in other communication with existing or potential Fountain customers, resellers, or investors. You may revoke this consent at any time by sending an email to [email protected]
- Sending Messages. The Services may allow Fountain Users to exchange messages (“Messages”) with each other. Harmful, obscene, or offensive communications are not welcome in any Messages. If a user sends you an objectionable Message, please notify us by sending an e-mail to [email protected] You should exercise discretion, good sense, and sound judgment when sending a Message. You are solely responsible for the content of any Message you send. You agree that Fountain 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 transfer to the intended recipient through the Services and for such other purpose as Fountain may deem appropriate in its sole discretion.
Fountain may provide contests on the Services. The rules, regulations, and procedures governing such contests (“Contest Rules”) will be accessible through a hypertext link displayed on the web page where the contest or game may be located. By entering or participating in any of our contests or games, you agree to be subject to those rules, regulations and procedures as well as the terms and conditions of these Terms. In the event of a conflict between any Contest Rules and these Terms, the applicable Contest Rules will govern.
7. Term and Termination
- Effect of Termination. The following Sections of these Terms will survive termination or expiration of the Agreement: 1.d, 2.c, 3, 5, 7.b, 8, 9 - 13, 15 - 24.
- Proprietary Information. You acknowledge and agree that: (i) the Services, including, without limitation, any Content, modifications, enhancements and updates, and any originals and copies thereof, in whole or in part, and all intellectual property rights therein (collectively, “Proprietary Information”), is owned by Fountain and its licensors, as applicable; (ii) the Proprietary Information contains valuable copyrighted and proprietary material of Fountain; (iii) the Proprietary Information is licensed, rather than sold, to you pursuant to these Terms; and (iv) you have no rights in the Proprietary Information, other than the rights and licenses specifically granted to you pursuant to these Terms.
- Trademarks. You acknowledge that Fountain has acquired, and is the owner of, trademark rights in the name and word mark "Fountain"™ and in the other marks and design marks displayed on the Services. You acknowledge that this name and these marks are famous and internationally known. You will not, at any time or for any reason, challenge the validity of, or Fountain’s ownership of, the foregoing name and marks, and you waive any rights you may have at any time to do so. All use of the foregoing name and marks by you will inure exclusively to the benefit of Fountain. All marks shown on the Services but not owned by Fountain are the property of their respective owners.
9. Disclaimer of Warranty
- TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES IS PROVIDED “AS IS” WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. YOU ACKNOWLEDGE THAT, BECAUSE OF THE NATURE OF THE INTERNET, MOBILE NETWORKS, AND THE DEVICES WHICH ACCESS THE INTERNET AND/OR MOBILE NETWORKS, THE SERVICES MAY NOT BE ACCESSIBLE WHEN NEEDED, AND THAT INFORMATION, DATA, AUDIO AND VIDEO TRANSMITTED OVER THE INTERNET AND/OR MOBILE NETWORKS MAY BE SUBJECT TO INTERRUPTION OR THIRD PARTY INTERCEPTION AND MODIFICATION. TO THE FULLEST EXTENT PERMITTED BY LAW, FOUNTAIN DISCLAIMS ANY AND ALL WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, AND ABSENCE OF VIRUSES AND DAMAGING OR DISABLING CODE. TO THE FULLEST EXTENT PERMITTED BY LAW, NONE OF FOUNTAIN, ITS AFFILIATES OR SERVICE PROVIDERS, FOUNTAIN’S CONTENT PROVIDERS AND/OR THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES NOR THE EMPLOYEES, AGENTS AND/OR CONTRACTORS (COLLECTIVELY, THE “FOUNTAIN PARTIES”) WARRANT THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE SERVICES. FOUNTAIN CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY LOSS, DAMAGES OR LIABILITIES ARISING FROM THE FAILURE OF ANY TELECOMMUNICATIONS INFRASTRUCTURE, OR THE INTERNET OR FOR YOUR MISUSE OF ANY OF CONTENT AND INFORMATION ACCESSED THROUGH THE SERVICES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES AND YOUR RELIANCE UPON ANY OF THE RESPECTIVE CONTENT IS AT YOUR SOLE RISK.
10. Limitation of Liability
- TO THE FULLEST EXTENT PERMITTED BY LAW, EACH FOUNTAIN USER IS SOLELY RESPONSIBLE FOR (I) HIS OR HER USE OF THE SERVICES, AND (II) ANY DAMAGES INCURRED BY HIM OR HER OR ANY THIRD PARTY THAT ARISE FROM OR ARE RELATED TO THE SERVICES. THE AGGREGATE LIABILITY OF THE FOUNTAIN PARTIES FOR ANY DAMAGES, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, WILL BE LIMITED TO ACTUAL DAMAGES PROVED, AND NOT TO EXCEED THE AMOUNT PAID BY YOU TO FOUNTAIN FOR THE SERVICES. TO THE FULLEST EXTENT PERMITTED BY LAW, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, NONE OF THE FOUNTAIN PARTIES WILL BE LIABLE FOR ANY PUNITIVE, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF FOUNTAIN OR ITS CONTENT PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- TO THE FULLEST EXTENT PERMITTED BY LAW, NONE OF THE FOUNTAIN PARTIES WILL HAVE ANY LIABILITY WHATSOEVER FOR ANY LOSSES; COSTS OR DAMAGES OF ANY KIND INCURRED OR SUFFERED BY YOU AS A RESULT OF SERVICES PROVIDED BY ANY OF OTHER FOUNTAIN USER PURSUANT TO THE SERVICES.
- YOU REPRESENT THAT YOU HAVE INDEPENDENTLY INVESTIGATED THE ADVISABILITY OF USING THE SERVICES AND THE POSSIBLE RISKS INVOLVED IN USING THE SERVICES. YOU AGREE TO MAINTAIN YOUR OWN INSURANCE COVERING SUCH RISKS AND WILL LOOK SOLELY TO SUCH INSURANCE FOR REIMBURSEMENT OF ANY RESULTING DAMAGES.
11. Third Party Disputes
FOUNTAIN IS NOT AFFILIATED WITH ANY OTHER FOUNTAIN USER, CARRIER, SERVICE PROVIDER, OR THIRD-PARTY SERVICE, AND ANY DISPUTE YOU HAVE WITH ANY OTHER FOUNTAIN USER, CARRIER, SERVICE PROVIDER, THIRD-PARTY SERVICE OR OTHER THIRD PARTY ARISING FROM YOUR USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, YOUR EMPLOYER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE FOUNTAIN (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES, AND EMPLOYEES) FROM ANY AND ALL 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.
12. Force Majeure.
Fountain will not be liable for any delay or failure to perform any obligation herein if the delay or failure is due to unforeseen events that are beyond Fountain’s reasonable control, such as strikes, blockade, war, terrorism, riots, natural disasters, epidemic, or governmental action, in so far as such an event prevents or delays Fountain in fulfilling its obligations hereunder.
13. Indemnification and Release
- To the fullest extent permitted by law, you further waive, release and forever discharge the Fountain Parties from any and all responsibility or liability for injuries or damages resulting from any service obtained through the use of the Services, including injuries or damages caused by the negligent act or omission of the Released Parties or in any way arising out of or connected with the Services.
- We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim. You will not, in any event, settle any claim or matter without our written consent.
14. Third-Party Services, Third Party Fees, and Linked Websites
- Access to Third-Party Services. The Services may provide you with access to third-party websites, databases, networks, servers, information, software, programs, systems, directories, applications, or products or services (collectively, “Third-Party Services”).
- No Control Over Third-Party Services. Fountain does not have or maintain any control over Third-Party Services, and is not and cannot be responsible for their content, operation, or use. By linking or otherwise displaying information from or providing access to any Third-Party Services, Fountain does not give any representation, warranty or endorsement, express or implied, with respect to the legality, accuracy, quality, or authenticity of content, information, or services provided by those Third-Party Services.
- Disclaimer of Liability for Third-Party Services. You are solely responsible for taking the precautions necessary to protect yourself from fraud when using Third-Party Services, and to protect your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content and material that may be included on or may emanate from any Third-Party Services. Fountain disclaims any and all responsibility or liability for any harm resulting from your use of Third-Party Services, and you hereby irrevocably waive any claim against Fountain with respect to the content or operation of any Third-Party Services.
- Third-Party Software. The software you download consists of a package of components, including certain third-party software (“Third-Party Software”) provided under separate license terms (the “Third Party Terms”). Your use of the Third-Party Software in conjunction with the Services in a manner consistent with the terms of these Terms is permitted, however, you may have broader rights under the applicable Third Party Terms and nothing in these Terms is intended to impose further restrictions on your use of the Third-Party Software.
15. Dispute Resolution
- Exceptions. Despite the provisions of the Section entitled “Generally” directly above, 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) bring an action in a court pursuant to the California Private Attorneys General Act of 2004, California Labor Code § 2698 et seq.; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
- Arbitrator. Any arbitration between you and Fountain will be governed by the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Fountain. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail or electronic mail within the applicable statute of limitations period (“Notice”). Fountain’s address for Notice is: 275 Sacramento St, 3rd Floor, San Francisco, CA, 94111. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) 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 is received, you or Fountain may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Fountain 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, Fountain will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Fountain in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
- Fees. If you commence arbitration in accordance with these Terms, Fountain will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, 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 San Francisco, California, but if the claim is for $15,000 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 Fountain 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 FOUNTAIN 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 (OTHER THAN ACTIONS UNDER THE CALIFORNIA PRIVATE ATTORNEYS GENERAL ACT OF 2004, CALIFORNIA LABOR CODE § 2698 ET SEQ. WHICH ARE NOT COVERED BY THIS SECTION 15). Further, unless both you and Fountain 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 Fountain makes any future change to this arbitration provision, other than a change to Fountain’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Fountain’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Fountain. If you do not send such written notice, your continued use of the Services following any such change means that you have consented to such change.
- Enforceability. If the Section entitled “No Class Actions” is found to be unenforceable or if the entirety of this Section 15 is found to be unenforceable, then the entirety of this Section 15 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described directly below will govern any action arising out of or related to these Terms or your use of the Services.
- Opt Out. Arbitration is not a mandatory condition of these Terms. If you do not want to be subject to this Dispute Resolution provision, you may opt out of this Dispute Resolution provision by notifying Fountain in writing of your decision by sending, within 30 days of the date you receive these Terms, an electronic message to [email protected], stating clearly your full name and intent to opt out of the Dispute Resolution provision. Should you choose not to opt out of this Dispute Resolution provision within the 30-day period, you and Fountain will be bound by the terms of this Dispute Resolution provision. You have the right to consult with counsel of your choice concerning this Dispute Resolution provision. You understand that you will not be subject to retaliation if you exercise your right to opt out of coverage under this Dispute Resolution provision.
16. Protected Activity Not Prohibited
You should understand that, insofar as permitted by applicable law, nothing in these Terms will in any way limit or prohibit you from filing a charge or complaint with, or otherwise communicating or cooperating with or participating in any investigation or proceeding (“Protected Activity”) that may be conducted by any federal, state or local government agency or commission (“Government Agencies”). You understand that in connection with such Protected Activity, you are permitted to disclose documents or other information as permitted by law, and without giving notice to, or receiving authorization from, Fountain. Notwithstanding, in making any such disclosures or communications, you agree to take all reasonable precautions to prevent any unauthorized use or disclosure of any information that may constitute Fountain confidential information to any parties other than the Government Agencies.
17. Governing Law; Choice of Forum.
The laws of the State of California, excluding its conflicts of law rules, govern these Terms and your use of the Services. Your use of the Services may also be subject to other local, state, national, or international laws; provided, however, that the United Nations Convention on Contracts for the International Sale of Goods will not apply to any provision of these Terms. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action will be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco County and you hereby irrevocably submit to personal jurisdiction in such courts, and waive any defense of inconvenient forum.
If you provide any feedback to Fountain concerning the functionality and performance of the Services (including identifying potential errors and improvements), you hereby assign to Fountain all right, title, and interest in and to such feedback, and Fountain is free to use such feedback without payment or restriction.
19. Entire Agreement; Variation.
These Terms set forth the entire agreement between Fountain and you with respect to the Services. These Terms supersede and govern all previous oral and written communications regarding these matters, all of which are merged into these Terms. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter these Terms. These Terms may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought.
If any provision of these Terms is held invalid, illegal, or unenforceable, such provisions will be modified, or if not possible, severed, to reflect the fullest valid, legal, and enforceable expression of the intent of the parties and the remainder of these Terms will not be affected thereby.
21. Relationship of Parties.
Nothing herein will be deemed to create an employer-employee relationship between Fountain and you, nor any agency, joint venture or partnership relationship between the parties. Neither party will have the right to bind the other to any obligation, nor have the right to incur any liability on behalf of the other.
No delay, omission, or failure to exercise any right or remedy provided herein will be deemed to be a waiver thereof or an acquiescence in the event giving rise to such right or remedy, but every such right or remedy may be exercised, from time to time as may be deemed expedient by the party exercising such remedy or right.
Neither these Terms nor any of the rights granted to you herein may be assigned or transferred by you, whether voluntarily or by operation of law, without the express prior written permission of Fountain and any attempt to do so will be null and void. However, Fountain may assign or transfer these Terms at any time without your permission.
24. Third-Party Beneficiaries.
The provisions of these Terms relating to the rights of Fountain content providers are intended for the benefit of such content providers, and such content providers, as third-party beneficiaries, will be entitled to enforce such provisions in accordance with their terms, irrespective of the fact that they are not signatories to these Terms.
NOTICE REGARDING APPLE. You acknowledge that these Terms are between you and Fountain only, not with Apple, and Apple is not responsible for the Services or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Services. In the event of any failure of the Services to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant Services to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever 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, but not limited to: (i) product liability claims; (ii) any claim that the Services fails to conform to any applicable legal or regulatory requirement; and (iii) 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 or your possession and use of the Services infringes that 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. If Fountain provides a translation of the English language version of these Terms, the translation is provided solely for convenience, and the English version will prevail.