Fanbooster by Traject Terms of Service

Last Updated: September 9, 2020

THESE TERMS OF SERVICE (“TERMS”) GOVERN YOUR USE OF OUR SERVICE. IF YOU REGISTER FOR A FREE TRIAL OF OUR SERVICE, THESE TERMS WILL ALSO GOVERN THAT FREE TRIAL.

 Acceptance of Terms

Fanbooster.com (“Fanbooster”, “We” or “Our”) provides its Service (as defined below) to You through its web site located at www.fanbooster.com (the “Site”), subject to these Terms.

By accepting the Terms, or by accessing or using the Service or Site, You represent and acknowledge that You have read, understood, and agree to be bound by these Terms, and that the information You provide in registering to the Service is accurate, complete, and is Yours or within Your right to use. If You are entering into these Terms on behalf of a company or another legal entity, You represent that You have the authority to bind such entity and its affiliates to these Terms, in which case the terms “You,” “Your” or related capitalized terms herein shall refer to such entity and its affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not use the Service.

You acknowledge that these Terms constitute a contract between You and Fanbooster, even though it is electronic and is not physically signed by You and Fanbooster. You further acknowledge that these Terms govern Your use of the Service and, except for written addendums signed by the parties that specifically modify these Terms, these Terms supersede any other agreements between You and Fanbooster.

Availability of the Site

You acknowledge that there may be interruptions in service or events that are beyond our control. While we use reasonable efforts to keep the Site accessible, the Site may be unavailable from time to time for any reason including, without limitation, routine maintenance. You understand and acknowledge that due to circumstances both within and outside of our control, Site access may be interrupted, suspended or terminated. You further understand that there may be interruptions in service or events on third-party sites, including, but not limited to, Facebook, Twitter, etc., that will affect your use of the Service (defined below) and that are beyond our control to prevent or correct. Interruptions in the Service that are beyond our control shall not serve as a basis to terminate your subscription or demand a full or partial refund of any prepaid fees.

Description of Service

The “Service” includes (a) the Site, (b) the Fanbooster Mobile Applications, and (c) the other services provided to You through the Site based on the plan purchased, including all software, data, text, images, sounds, videos, and other content made available through the Site (collectively, “Content”). Any new features added to or augmenting the Service are also subject to these Terms. Certain new features made generally available at no cost to all subscribing customers will be made available to You at no additional charge. However, the availability of some new features may require the payment of additional fees, and Fanbooster will determine at its sole discretion whether access to any other such new features will require an additional fee.

The Service may also include basic or expanded services based on the Service plan purchased. Fanbooster will use commercially reasonable efforts to make the Service available as detailed in the applicable Service plan, except for: (a) planned downtime, or (b) any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, or technical failures beyond Our control.

Fanbooster may offer Free Trial accounts where you may use the Service free of charge for a specified time period. Upon expiration of this time period, your access to the Service will be terminated unless you choose to pay the applicable subscription fee and become a subscriber. You understand that only a single Free Trial account will be granted for a given email address. The provision, maintenance and termination of Free Trial accounts are within the sole discretion of Fanbooster. Fanbooster has no obligation or liability related to the provision, maintenance and termination of Free Trial accounts.

Mobile Applications

Fanbooster makes Mobile Applications to access the Service via a mobile device. To use the Mobile Application You must have a mobile device that is compatible with the mobile service. We do not warrant that the Mobile Application will be compatible with Your mobile device. Fanbooster hereby grants to You a non-exclusive, non-transferable, revocable license to use an object code copy of the Mobile Application for one registered account on one mobile device owned or leased solely by You, for Your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Application, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Application to any third-party or use the Mobile Application to provide time sharing or similar services for any third-party; (iii) make any copies of the Mobile Application; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Application, features that prevent or restrict use or copying of any content accessible through the Mobile Application, or features that enforce limitations on use of the Mobile Application; or (v) delete the copyright and other proprietary rights notices on the Mobile Application. You acknowledge that We may from time to time issue upgraded versions of the Mobile Application, and may automatically electronically upgrade the version of the Mobile Application that You are using on Your mobile device. You consent to such automatic upgrading on your mobile device, and agree that these Terms will apply to all such upgrades. The foregoing license grant is not a sale of the Mobile Application or any copy thereof, and Fanbooster and its third-party licensors or suppliers retain all right, title, and interest in and to the Mobile Application (and any copy of the Mobile Application). Standard carrier data charges may apply to Your use of the Mobile Application.

The following additional terms and conditions apply with respect to any Mobile Application that Fanbooster provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”):

  • You acknowledge that these Terms are between You and Fanbooster only, and not with Apple, Inc. (“Apple”).
  • Your use of the iOS App must comply with Apple’s then-current App Store Terms of Service.
  • Fanbooster, and not Apple, is solely responsible for the iOS App and the services and content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the iOS App.
  • You agree that Fanbooster, and not Apple, is responsible for addressing any claims by You or any third-party relating to the iOS App or your possession and/or use of the iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to us as provider of the iOS App.
  • You agree that Fanbooster, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to the iOS App or Your possession and use of the iOS App.
  • You 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.
  • You agree to comply with all applicable third-party terms of agreement when using the iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
  • You agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as they relate to your license of the iOS App. 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 they relate to Your license of the iOS App as a third-party beneficiary thereof.

The following additional terms and conditions apply with respect to any Mobile Application that Fanbooster provides to you designed for use on an Android-powered mobile device (an “Android App”):

  • You acknowledge that these Terms are between you and Fanbooster only, and not with Google, Inc. (“Google”).
  • Your use of the Android App must comply with Google’s then-current Android Market Terms of Service.
  • Google is only a provider of the Android Market where you obtained the Android App. Fanbooster, and not Google, is solely responsible for the Android App and the services and content available thereon. Google has no obligation or liability to You with respect to the Android App or these Terms.
  • You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to the Android App.

Third Party Services

External Sites. The Service may contain links to, or otherwise may allow You to connect to and use certain third party products, services or software under separate terms and conditions (collectively, “Third-party Services”) in conjunction with Our Service. If You decide to access and use such Third-party Services, be advised that Your use of such Third-party Services is governed solely by the terms and conditions of such Third-party Services, and We do not endorse, are not responsible for, and make no representations as to such Third-party Services, their content or the manner in which they handle Your data. Please review the terms of service on each Third-party Services You decide to connect. Here you can find the YouTube Terms of Service. Fanbooster is not liable for any damage or loss caused or alleged to be caused by or in connection with Your access or use of any such Third-party Services, or Your reliance on the privacy practices or other policies of such Third-party Services.

Integration. The Service may contain features that enable various Third-party Services (such as social media services like Facebook and Twitter) to be directly integrated into your Fanbooster account. To take advantage of these features, You will be required to register for or log into such Third-party Services on their respective websites. By enabling third party services within the Service, You are allowing Fanbooster to pass Your log-in information to these Third-party Services for this purpose.

Billing, Plan Modifications and Payments

Billing and Payments. Unless otherwise agreed to in writing by Fanbooster, the Service is made available on a pay-as-you-go basis and is charged at the start of Your elected subscription term (generally monthly or annually). If You do not provide Your credit card or other payment information to Fanbooster before the expiration of any applicable free trial period, Your account will be suspended until payment information and charge authorization are provided. You will be promptly billed and, if applicable, any trial period will terminate. Unless You cancel Your subscription prior to the expiration of its current subscription term, We will automatically renew Your subscription based on Your plan’s renewal cycle and will charge Your credit card with the applicable renewal subscription fees. Subscriptions must be cancelled at least 3 days prior to expiration thereof to avoid automatic renewal. You may cancel your subscription by visiting the Billing page in Fanbooster (under the gear icon in the upper right hand corner) and clicking on Deactivate My Account. This will prevent any further payments from occurring.

The Service provides an interface for the account owner to change credit card information (e.g., upon card renewal).

Modifying Your Subscription. If You choose to upgrade Your plan or number of users during Your elected subscription period, any incremental cost will be prorated over the remaining term of the subscription period and charged to Your account. You will be charged the adjusted rate on subsequent billing cycles. If your payments for the Service are made by credit card, your credit card will be billed the prorated charge at the time your account is modified. Except as provided in Section 11, regardless of Your billing cycle, there are no refunds or credits for partial months of Service, plan downgrades, or refunds for unused time if You close Your account before the end of Your subscription period. Downgrading Your plan level may cause the loss of content, features, or capacity of Your account and Fanbooster does not accept any liability for such loss.

Authorization to Charge Your Credit Card. By becoming a subscriber of the Service and submitting your credit card information to Fanbooster, you authorize Fanbooster to store your payment card information and to charge the billing source you have provided for your account according to the subscription plan you selected until your account is terminated.

Overdue charges. If You fail to pay your subscription fee on time, or if Your credit card payment information is entered in error or does not go through for processing and You do not update payment information upon Our request, your entire subscription may be suspended or cancelled. Even after your subscription is suspended or cancelled, You will still have access to the Site, and you will be able to access your account information to restore your access to the Service by providing a proper billing source. After your subscription is terminated, we will keep your current account settings on file for 90 days. After that time, Fanbooster reserves the right to remove such settings from our servers with NO liability or notice to you.

Billing Privacy. Fanbooster uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain, or use Your billing information except to process Your credit card information for Fanbooster. For more information about Our billing practices and Your personal information please visit Our Privacy Policy.

Taxes. Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes except those assessable against Fanbooster based on its income. We will invoice You for such Taxes if we believe we have a legal obligation to do so.

Intellectual Property Rights

Fanbooster retains all rights, title and interest in and to all patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”) related to the Service. The rights granted to You to use the Service under these Terms do not convey any additional rights in the Service, or ownership of any Intellectual Property Rights associated therewith.

As between You and Fanbooster You own the information you provide Fanbooster or input on third-party websites through the Service. You grant Fanbooster a nonexclusive, revocable, worldwide, perpetual, unlimited fully paid up and royalty-free right to us to use copy, prepare derivative works of, distribute, publish, remove, retain, add, process, or analyze the foregoing described information for the sole purpose of providing the Service to You and Your Users (as defined below). By providing information to us or to third-parties through the Service, You represent and warrant that You are entitled to and authorized to submit the information and that the information is accurate, not confidential, and not in violation of any contractual restrictions or other third party rights. Licensee may not upload, post or otherwise make available through the Service any material protected by copyright, trademark, or any other proprietary right without first having obtained all rights, permissions and consents necessary (a) to make such content available on or through the Service, and (b) to grant Fanbooster the limited rights to use the content as set forth in this Agreement. The burden of determining whether any content is protected by any such right is on You.

Fanbooster shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback (“Feedback”) We receive from You. You understand and agree, however, that Fanbooster is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and You have no right to compel such use, display, reproduction, or distribution.

Fanbooster, and Fanbooster’s other product and service names, and logos used or displayed on the Service are registered or unregistered trademarks of Fanbooster (collectively, “Marks”), and You may only use such Marks to identify yourself as a customer and user of the Service; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Fanbooster, its services or products.

All rights, title and interest in and to the Service and its components, including all related intellectual property rights, will remain with and belong exclusively to Fanbooster and its third-party vendors.

Upon subscribing to the Service and subject to Your compliance with the terms and conditions of these Terms, Fanbooster grants you a non-exclusive, non-transferable, non-sublicenseable, revocable license to access and use the Service (for the particular subscription purchased) and the Site, strictly in accordance with this Agreement and subject to all the limitations set forth in this Agreement. If applicable to the plan for which you have subscribed, you may create separate logins under your account for as many end user clients (each a “User”) as your plan permits.

Account Registration

Subject to the terms and conditions of these Terms, You agree to access and use the Service only for Your internal business purposes as contemplated by these Terms. In order to use the Service, you are required to register for our service for which you will pay a subscription fee for use of the Service following the expiration or termination of any Free Trial accounts. The subscription fee, following the expiration or termination of any Free Trial accounts, must be prepaid in order to use the Service.

If You add Users to your account, You must contractually bind each of such User to these Terms and, as between You and Fanbooster you will be solely liable for any breach of these Terms by Your Users. By adding any User to your account, You represent and warrant that: (i) You have obtained all necessary authorizations, consents, and licenses from such User to bind it to this Agreement. You are at all times fully responsible and liable for all acts and omissions by Your Users and You agree to indemnify Fanbooster for all claims and losses related to any such acts and/or omissions.

To be eligible to use the Service, you must meet the following criteria and represent and warrant that you: (1) are 18 years of age or older; (2) are not currently restricted from the Service, or not otherwise prohibited from having a fanbooster.com account, (3) are not a competitor of Fanbooster or are not using the Service for reasons that are in competition with Fanbooster; (4) have full power and authority to enter into this Agreement and doing so will not violate any other agreement to which you are a party; (5) will not violate any rights of Fanbooster, including intellectual property rights such as copyright or trademark rights; and (6) agree to provide at Your cost all equipment, software, and internet access necessary to use the Service.

Use of the Service

You shall not, and shall not permit, induce or encourage any third party (including, without limitation, any User) (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as expressly permitted by these Terms; (b) use the Service to process data on behalf of any third party, (c) modify, adapt or hack the Service to falsely imply any sponsorship or association with Fanbooster, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks; (d) use the Service in any unlawful manner, including but not limited to violation of any persons privacy rights, infringing any person’s intellectual property rights, or sending spam or otherwise duplicative or unsolicited messages in violation of applicable law, (e) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (f) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Service; (g) use the Service to knowingly post, upload, link to, send or store any content that is unlawful, racist, hateful, obscene, discriminatory, or contains any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; (h) attempt to use any method to gain unauthorized access to any paid features of the Site; (i) unless otherwise explicitly agreed to in writing by Fanbooster, use the Site or any content obtained from it to develop, as a component of, any information, storage and retrieval system, database, information base, or similar resource (in any media now existing or hereafter developed), that is offered for commercial distribution of any kind, including through sale, license, lease, rental, subscription, or any other commercial distribution mechanism; (j) use automated scripts to collect information from or otherwise interact with the Site or the Service; (k) deep-link to the Site for any purpose (other than Fanbooster’s home page), unless expressly authorized in writing by Fanbooster; (l) impersonate any other user of the Service; or (m) try to use, or use the Service in violation of these Terms.

You are responsible for all information, data, text, messages or other materials that You or Your Users post or otherwise transmit via the Service. You are responsible for maintaining the confidentiality of Your login and account, and are fully responsible for any and all activities that occur under or in connection with Your login or account. You agree and acknowledge that Your login may only be used by one (1) person, and that You will not share a single login among multiple people. You agree that You will not sell, trade or otherwise transfer Your login or account to another party and that you will not, unless otherwise specifically agreed to in writing by Fanbooster, charge anyone for access to any portion of the Site, or any information therein. You agree that you are responsible for anything that happens through your account, including the acts or omissions of your Users.

Data Privacy and Security

In providing You the Service We shall maintain appropriate administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Your data and the personal data of Your end-users. These safeguards include encryption of Your data in transmission (using SSL or similar technologies), except for external third party integrations that do not support encryption, which You may link to the Service at Your choice. We agree to promptly notify You in the event that Fanbooster learns or has reason to believe that any person or entity has breached Fanbooster’s measures, or gained unauthorized access to Your data (“Information Security Breach”). Upon any such discovery, We will: (a) investigate, and mitigate the effects of the Information Security Breach, (b) use Our best efforts to ensure that such Information Security Breach will not recur, and (c) assist You in remediation of the Information Security Breach. We shall use commercially reasonable efforts to promptly and properly deal with inquiries and requests from You in relation to the processing of Your data.

You agree that Fanbooster can access Your account information in order to respond to Your service requests and/or as necessary, in Our sole discretion, to provide You with the Services. We will not disclose such data except if compelled by law, permitted by You, or pursuant to the terms of the Fanbooster Privacy Policy, which is available at www.Fanbooster.com and is incorporated into these Terms. We agree to store, use and process Your business contact information, including names, business phone numbers, and business e-mail addresses only to the extent necessary to provide You the Services. We will not disclose such business contact information to third parties except if permitted by You in writing.

The Privacy Policy governs our treatment of any information, including personally identifiable information, you submit to us. Please note that certain information, statements, data, and content which You may submit to or through the Service may reveal your gender, ethnic origin, nationality, age, and/or other personal information about You. You acknowledge that Your submission of any information, statements, data, and content to Us is voluntary on Your part. The Privacy Policy is incorporated into this Agreement by reference.

For Your personal data or personal information (collectively, “Your personal data”) received by Fanbooster from the European Union (EU) in any form or format with respect to any identified or identifiable person covered by the European Union Privacy Directive, Fanbooster agrees to comply as follows: (i) when acting in the capacity of a data processor, Fanbooster only acts on Your instructions and does not control or share Your personal data without direction from You and (ii) when acting in the capacity of a data controller, Fanbooster will adhere to the EU Safe Harbor Privacy Principles regarding the collection, use and retention of personal information from European Union member countries.

Cancellation and Termination

You may cancel your account with Fanbooster at any time; however, unless Fanbooster is in breach of this Agreement and does not cure said breach within thirty (30) days of receiving written notice from You of an actual breach, identifying specifically the nature of the breach, You are not entitled to any refunds. We may suspend or cancel Your account without notice or refund to You if you violate this Agreement. If your account is cancelled, Fanbooster reserves the right to remove Your account information along with any account settings from our servers with NO liability or notice to You. Once Your account information and account settings are removed, You will not be able to recover this data and You will lose access to all of Your content (except that content stored/published to third-party websites, that data will remain on said third-party websites pursuant to those website’s terms and conditions). If You cancel the Service before the end of Your current paid-up subscription period, Your cancellation will take effect immediately and You will not be charged again.

Fanbooster reserves the right to (i) modify or discontinue, temporarily or permanently, the Service (or any part thereof) and (ii) refuse any/all current and future use of the Service, suspend or terminate your account or any part thereof (or Your use of the Service), and remove and discard any of Your content within the Service if We believe that You have violated these Terms. Fanbooster will use reasonable efforts to contact You directly via email to warn You prior to suspension or termination of Your account. Any suspected fraudulent, abusive, or illegal activity may be grounds for immediate termination of Your use of Service, and may be referred to law enforcement authorities. Fanbooster shall not be liable to You or any third party for any modification, suspension or discontinuation of the Service.

Disclaimer of Warranties and Liability

THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND FANBOOSTER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

FANBOOSTER DOES NOT REPRESENT OR WARRANT THAT THE SERVICE, CONTENT OR MATERIALS FROM OR RELATED TO THE SERVICE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT THE SITE OR THE SERVICE, SERVERS, OR ANY PLATFORM APPLICATIONS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THEREFORE, YOU SHOULD EXERCISE CAUTION IN THE USE AND DOWNLOADING OF ANY SUCH SOFTWARE, CONTENT OR MATERIALS AND USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES. ALL RESPONSIBILITY OR LIABILITY FOR ANY DAMAGES CAUSED BY VIRUSES CONTAINED WITHIN THE ELECTRONIC FILE CONTAINING A FORM OR DOCUMENT IS DISCLAIMED. WITHOUT LIMITING THE FOREGOING, YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN CONTENT, MATERIAL, DATA OR SOFTWARE (INCLUDING ANY MOBILE CLIENT) FROM OR THROUGH THE SITE, THE SOFTWARE, OR ANY PLATFORM APPLICATIONS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR YOUR USE THEREOF AND ANY DAMAGES TO YOUR MOBILE DEVICE OR COMPUTER SYSTEM, LOSS OF DATA OR OTHER HARM OF ANY KIND THAT MAY RESULT.

NO INFORMATION OR ADVICE OBTAINED FROM FANBOOSTER OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. FANBOOSTER DISCLAIMS ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION OR ERRORS IN THE FUNCTIONING OF THE WEBSITE, EXCEPT AS OTHERWISE EXPRESSLY SETFORTH HEREIN. FURTHERMORE, FANBOOSTER DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE SERVICE DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, USER COMMUNICATIONS, PROBLEMS RELATED TO THE SERVICE OR ITS USE, LOSS OF PERSONAL CONTENT ON THE SITE, LOST OR UNDELIVERABLE EMAIL, AND FOR ANY OTHER REASON. UNDER NO CIRCUMSTANCES WILL FANBOOSTER BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING, BUT NOT LIMITED TO PERSONAL INJURY OR DEATH, RESULTING FROM USE OF THE SITE OR THE SERVICE, OR ANY INTERACTIONS BETWEEN USERS OF THE SITE OR THE SERVICE, WHETHER ONLINE OR OFFLINE.

Fanbooster provides the platform for the Service. Fanbooster does not control or vet user generated content for accuracy. Although We provide rules for user conduct and postings, We do not control and We are not responsible for what users post, transmit or share on or through the Site or any other website (even if such content is published on or through the Site). Furthermore, we are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content You may encounter on the Site. Fanbooster is not responsible for the conduct, whether online or offline, of any user of the Site or the Service. Further, Fanbooster is not responsible or liable in any manner for any 3rd party applications, software, viruses, etc. that are uploaded or posted on the Site, caused by users of the Site, or that are related to the use of the Service by third parties, or caused by any third parties’ use of the equipment or programming associated with or utilized in the Site or the Service.

FANBOOSTER CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SITE AND/OR THE SERVICE.

We do not monitor content published through the Service and We are not responsible for content published through the Service. Notwithstanding the foregoing, Fanbooster reserves the right to delete, move, or edit messages or materials, including, but not limited to, advertisements, public postings, and messages, that we, in our sole discretion, deem necessary to be removed.

Limitation of Liability

NO CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL FANBOOSTER, ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE YOU, YOUR USERS OR ANY OTHER THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICE, REGARDLESS OF WHETHER FANBOOSTER HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.

LIMITS ON MONETARY DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, FANBOOSTER’S (INCLUDING ANY OF ITS AFFILIATES) AGGREGATE LIABILITY FOR DAMAGES (MONETARY OR OTHERWISE) UNDER THESE TERMS SHALL BE LIMITED TO THE PAYMENTS MADE BY YOU FOR THE SERVICE DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 13.2. IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF FANBOOSTER WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.

Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, FANBOOSTER’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

Indemnification

You agree to defend, indemnify, and hold harmless Fanbooster from and against any claims, actions or demands, including, without limitation, reasonable legal and professional services fees, arising or resulting from Your or Your Users’ breach of these Terms, or Your and Your Users’ access to, use, misuse or illegal use of the Service. Fanbooster will provide You notice of any such claim, suit, or proceeding. Fanbooster reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, in which case You agree to cooperate with any reasonable requests to assist Fanbooster’s defense of such matter.

Assignment

You may not assign these Terms or any of your rights under these Terms, without the prior written consent of Fanbooster. Subject to the foregoing restrictions on assignment, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. Any assignment in violation of this Section will be void. These Terms shall be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties hereto.

Entire Agreement; Amended Terms

This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, all previous understandings whether oral or written having been merged herein. No representations or warranties have been made other than those expressly set forth herein. Without limiting the foregoing, the parties have not relied on any oral statements that are not included in the Terms. Except as otherwise provided in these Terms, the Terms may not be changed, modified, renewed, extended, or discharged or any covenant or provision hereof waived except by an agreement in writing signed by both parties. These Terms supersede prior versions of these Terms.

We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You of such changes and direct You to the latest version. Upon notice of modification of these Terms, except such modifications required by law, You may notify us within two weeks of Our sending You notice of the amended Terms that You are exercising Your right to terminate Your subscription to the Service. Upon termination of your Subscription under this Section, any prepaid fees will be prorated and returned to You. If You do not notify use within two weeks or if you continue using the Service after we have provided notice of any changes to these Terms, you will be deemed to have accepted the revised Terms.

Severability

If any provision of these Terms, or the application thereof under certain circumstances, is held to be invalid or unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms, or the application of such provision under other circumstances, shall remain in full force and effect.

Export Control

Your use of Service, including our software, is subject to export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the United States Department of Commerce and sanctions programs maintained by the Treasury Department’s Office of Foreign Assets Control. You shall not — directly or indirectly — sell, export, re-export, transfer, divert, or otherwise dispose of any Service or software to any end-user without obtaining the required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving US origin products, including services or software.

Relationship; Independent Contractor

Nothing herein contained shall be so construed as to constitute the parties as principal and agent, employer and employee, partners or joint venturers, nor shall any similar relationship be deemed to exist between the parties. Neither party shall have any power to obligate or bind the other party, except as specifically provided herein.

Survival

Sections 1 (Acceptance of Terms), 6 (Billing, Plan Modifications and Payments), 7.A-D. (Intellectual Property Rights) 11 (Cancellation and Termination), 12 (Disclaimer of Warranties and Liability), 13 (Limitation of Liability), 14 (Indemnification), 15 (Assignment), 16 (Entire Agreement; Amended Terms), 17 (Severability), 18 (Export Compliance and Use Restrictions), 19 (Relationship; Independent Contractor), 21 (Governing Law), 22 (Arbitration of Disputes), and 25 (No Waiver) will survive any termination of these Terms.

Governing Law

The validity, interpretation and performance of these Terms shall be governed by the laws of the State of New York without giving effect to the conflicts of laws provisions or principals thereof.

Arbitration of Disputes

If we cannot amicably resolve any legal dispute or damage claim that should arise from your interactions with the Site, the Service, and/or Fanbooster, you agree to resolve any such dispute or damage claim by arbitration. The arbitration proceeding shall be conducted in New York, New York, in accordance with the rules of the American Arbitration Association then in effect with one (1) arbitrator to be selected by mutual agreement of both you and Fanbooster. If we cannot agree on an arbitrator, then the American Arbitration Association shall select an arbitrator from the National Panel of Arbitrators. The laws of the State of New York shall apply to the arbitration proceedings. You agree that the arbitrator cannot award punitive damages to either of us and agree to be bound by the arbitrator’s findings. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction, which shall include, but not be limited to, the courts within Kings Country, New York.

Federal Government End Use Provisions

If you are a U.S. federal government end user, this Service is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, this Service is licensed to you with only those rights as provided under the terms and conditions of these Terms.

Digital Millennium Copyright Act

The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under US copyright law. If you believe in good faith that content or material on this website infringes a copyright owned by you, you (or your agent) may send Fanbooster DMCA agent a notice requesting that the material be removed, or access to it blocked. This request should be sent to: social@bytraject.com; or, alternatively to: Fanbooster, Attn: DMCA Registered Agent, 15400 SE 30th Place, Suite 202, Bellevue, WA 98007.

The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed; (c) identification of the material that is claimed to be infringing or the subject of infringing activity; (d) the name, address, telephone number, and email address of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. Notices and counter-notices with respect to the website should be sent to the address above.

No Waiver

Fanbooster’s failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of these Terms.

Traject Terms of Service

Last Updated: March 12, 2020

These Terms of Service including any additional terms and conditions accompanying our products, services, promotions, trials, or similar offerings (collectively, “Terms”), apply to your access to and use of the websites, mobile applications, and other online products and services including without limitation Grade.us, AuthorityLabs, Cyfe, Fanbooster, Traject Data, and GatherUp (collectively, the “Services”) provided by Grade Us, LLC dba Traject or its affiliates (together, “Traject,” “we,” “our,” and “us”).  By clicking “I Accept” or by using our Services, you agree to these Terms, including the mandatory arbitration provision and class action waiver provision. If you do not agree to these Terms, do not use our Services. 

We may supply different or additional terms in relation to some of our Services (“Other Terms”), and those Other Terms become part of your agreement with us if you use those Services. If there is a conflict between these Terms and the Other Terms, the Other Terms will control to the extent of that conflict, except where expressly stated herein. 

We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Services or updating the date at the top of these Terms.  Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services.

If you have any questions about these Terms or our Services, please contact us at support@bytraject.com.

  1. Other Terms

Among other things, Traject enables you to bundle a suite of tools, products, and services offered by Traject or its affiliates. As mentioned, certain tools, products, and services may be accompanied by Other Terms that supplement these Terms, and, in cases where Other Terms conflict with these Terms, control to the extent of the conflict (except where expressly noted herein).

The Other Terms that govern the use of specific tools, products, or services include, among others, the following for each respective tool, product, or service:

  1. Privacy

For information about how we collect, use, share and otherwise process information about you, please see our Privacy Policy.

  1. Eligibility 

You must be at least 13 years of age to use our Services and not a competitor.  If you are under 18 years of age (or the age of legal majority where you live), you may use our Services only under the supervision of a parent or legal guardian who agrees to be bound by these Terms.  If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of such user in relation to our Services. If you use our Services on behalf of another person or entity, (a) all references to “you” throughout these Terms will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf, and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us.

  1. User Accounts and Account Security

You may need to register for an account to access some or all of our Services. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission.  If you permit others to use your account credentials, you are responsible for the activities of such users that occur in connection with your account. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames. 

  1. User Content 

Our Services may allow you and other users to create, post, store and share content, including messages, text, photos, videos, software and other materials (collectively, “User Content”).  Except for the license you grant below, you retain all rights in and to your User Content, as between you and Traject.

You grant Traject and its affiliates a perpetual, irrevocable, nonexclusive, transferable, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you. When you post or otherwise share User Content on or through our Services, you understand that your User Content and any associated information (such as your username or profile photo) may be visible to others. 

You may not create, post, store or share any User Content that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that your User Content, and our use of such content as permitted by these Terms, will not violate any rights of or cause injury to any person or entity. Although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason with or without notice. 

  1. Prohibited Conduct and Content

You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, and you are solely responsible for your conduct while using our Services or accessing other platforms hosted or sponsored by us. You will not:  

  • Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
  • Use or attempt to use another user’s account without authorization from that user and Traject;
  • Impersonate or post on behalf or any person or entity or otherwise misrepresent your affiliation with a person or entity;
  • Sell, or resell our Services or any content therein;
  • Copy, reproduce, distribute, publicly perform or publicly display all or portions of our Services, except as expressly permitted by us or our licensors; 
  • Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services; 
  • Use our Services other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
  • Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
  • Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Services; 
  • Develop or use any applications that interact with our Services without our prior written consent;
  • Send, distribute or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;
  • Bypass or ignore instructions contained in our robots.txt file; or
  • Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.

You may also post or otherwise share only User Content that is nonconfidential and that you have all necessary rights to disclose.  You may not create, post, store or share any User Content that:

  • Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
  • Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
  • May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
  • Contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
  • Impersonates, or misrepresents your affiliation with, any person or entity;
  • Contains any unsolicited promotions, political campaigning, advertising or solicitations;
  • Contains any private or personal information of a third party without such third party’s consent;
  • Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
  • In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Services, or may expose Traject or others to any harm or liability of any type.

Enforcement of this section is solely at Traject’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances.  In addition, this section does not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by such rules.

  1. Ownership; Limited License

The Services, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by Traject or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and violate our intellectual property rights.

  1. Trademarks

Traject and our logos, our product or service names, our slogans and the look and feel of the Services are trademarks of Traject and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Services are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us. 

  1. Feedback

You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about Traject or our Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including, without limitation, to develop, copy, publish, or improve the Feedback in Traject’s sole discretion. You understand that Traject may treat Feedback as nonconfidential. 

  1. Repeat Infringer Policy; Copyright Complaints 

In accordance with the Digital Millennium Copyright Act and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may notify Traject’s designated agent as follows:

Address: 15400 SE 30th PL, Suite 202

Bellevue, WA 98007

E-Mail Address: support@bytraject.com 

Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to Traject for certain costs and damages.

  1. Third-Party Content

We may provide information about third-party products, services, activities or events, or we may allow third parties to make their content and information available on, through or as part of the Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of, interaction with, or reliance on any Third-Party Content, including without limitation the importing, exporting, or ingestion of such Third-Party Content, is solely between you and the third party. Traject does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk. Traject is not responsible or liable to extent for the Third-Party Content including without limitation its accuracy, legality, functionality or appropriateness. You acknowledge that such Third-Party Content may be subject to additional third-party terms and conditions and agree that compliance with such third-party terms and conditions are your sole responsibility. Additionally, you agree that such third-party terms and conditions are specific to you and that third-party and do not involve us by virtue of being provided, made available or incorporated within the Services.

  1. Payments and Refunds.

The following provisions of this section shall apply to the extent that they do not conflict with Other Terms that are applicable to specific Services. Notwithstanding anything to the contrary in these Terms or any applicable Other Terms (including the foregoing sentence), you agree that Traject may discount any Fees (defined below), costs, and expenses payable by you and may consolidate the total amount you owe for all Services for a given Subscription Period, Renewal Subscription Period, or other similar service period into one bill and payment in its sole discretion.

  1. General. Fees are required for certain paid Services (“Subscriptions”) and are payable in U.S. Dollars. Such Subscriptions may be made available on a one-time, monthly or annual basis (each a “Subscription Period”). For Subscriptions with monthly and annual Subscription Periods, you agree that such Subscription will automatically renew for successive, equivalent Subscription Periods (each a “Renewal Subscription Period”) until you cancel such Subscription(s) in accordance with these Terms. Promotions, trial periods and other similar offerings may be subject to additional terms and conditions. By accessing, using or redeeming such offerings, you agree to those additional terms and conditions.
  2. Fees. By purchasing a Subscription, you agree that Traject may bill you in advance for all applicable fees, taxes and other charges that you may incur in connection with the access and use of that Subscription (collectively, “Fees”). Fees associated with certain Subscriptions are subject to change at Traject’s sole discretion. Such changes will not become effective until your next Renewal Subscription Period. Fees are based on the Subscription and Subscription Period selected on not on actual usage. You expressly authorize us to charge your payment card on file in advance for each Subscription Period and Renewal Period. We require that you keep a valid payment card on file to access your Subscription(s) and You agree to keep your payment card information on file accurate and current. If payment is not received or cannot be charged for any reason (including without limitation as a result of an invalid or expired payment card) in advance of the Subscription Period of Renewal Period, Traject reserves the right to immediately suspend or terminate your access to that Subscription and other Subscriptions affected.
  3. Plan Levels. Certain Subscriptions allow for the plan level to be upgraded or downgraded at your discretion. Upon such upgrade or downgrade in plan level, you authorize us to charge the new prorated amount for the current Subscription Period and to charge the new total amount of each Subscription for each Renewal Period thereafter. Please note that downgrading your Subscription may cause the loss of User Content, data, information, features or other functionality that is associated with your account. You bear all risk from downgrading any Subscription and release Traject from all liability and consequences related thereto.
  4. Cancellation.  You may cancel your Subscription through your account or by contacting customer service at any time. Upon proper submission, the cancellation will become effective immediately, and your access to and use of that Subscription will terminate. Any amounts paid or prepaid for a Subscription Period or Renewal Period will not be refunded as a result of cancellation.
  5. Effects of Cancellation. If your account or Subscription is cancelled or otherwise expires or terminates, Traject may delete all or some of your account information along with any account settings from our servers. Once any account information or account settings are deleted, you will not be able to recover this data and you will lose access to all of your User Content (except that content stored or published to third-party websites, that data may remain on such third-party website(s), subject to the applicable terms and conditions of that third party). We are not responsible for any loss or harm related to your inability to access or use your account or the Services.
  6. Nonrefundable. All Fees are nonrefundable. There are no refunds or credits for a partial Subscription Period or a partial Renewal Period.
  1. Indemnification

To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Traject and its affiliates and each of their respective officers, directors, agents, partners and employees (individually and collectively, the “Traject Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of the Services; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Services.  You agree to promptly notify Traject Parties of any third-party Claims, cooperate with Traject Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees). You also agree that the Traject Parties will have control of the defense or settlement, at Traject’s sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Traject or the other Traject Parties.

  1. Disclaimers 

Your use of our Services is at your sole risk. Except as otherwise provided in a writing by us, our Services and any content therein are provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Traject does not represent or warrant that our Services are accurate, complete, reliable, current or error-free. While Traject attempts to make your use of our Services and any content therein safe, we cannot and do not represent or warrant that our Services or servers are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Services.

  1. Limitation of Liability 

To the fullest extent permitted by applicable law, Traject and the other Traject Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits, even if Traject or the other Traject Parties have been advised of the possibility of such damages.

The total liability of Traject and the other Traject Parties for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to $100.

The limitations set forth in this section will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of Traject or the other Traject Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.

  1. Release 

To the fullest extent permitted by applicable law, you release Traject and the other Traject Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”

  1. Transfer and Processing Data

In order for us to provide our Services, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.

  1. Dispute Resolution; Binding Arbitration 

Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Traject and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration agreement. In addition, arbitration precludes you from suing in court or having a jury trial. 

No Representative Actions. You and Traject agree that any dispute arising out of or related to these Terms or our Services is personal to you and Traject and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.

Arbitration of Disputes. Except for small claims disputes in which you or Traject seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Traject seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Traject waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Services resolved in court. Instead, for any dispute or claim that you have against Traject or relating in any way to the Services,  you agree to first contact Traject and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Traject by email at support@bytraject.com or by certified mail addressed to 15400 SE 30th PL, Suite 202, Bellevue, WA 98007. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and Traject cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may submit the dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in King County, Washington, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”).  The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason. 

You and Traject agree that these Terms affect interstate commerce and that the enforceability of this section will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. 

The arbitrator, Traject, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including, but not limited to, all information gathered, prepared and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.

You and Traject agree that for any arbitration you initiate, you will pay the filing fee and Traject will pay the remaining JAMS fees and costs. For any arbitration initiated by Company, Traject will pay all JAMS fees and costs. You and Traject agree that the state or federal courts of the State of Washington and the United States sitting in King County, Washington have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. 

Any claim arising out of or related to these Terms or our Services must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and Traject will not have the right to assert the claim. 

You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this section by contacting Traject at support@bytraject.com or via certified mail addressed to 15400 SE 30th PL, Suite 202, Bellevue, WA 98007.  In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are otherwise agreeing to resolve disputes in accordance with these Terms.

If any portion of this section is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this section or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this section; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this section is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this section will be enforceable. 

  1. Governing Law and Venue

Any dispute arising from these Terms and your use of the Services will be governed by and construed and enforced in accordance with the laws of Washington, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of Washington or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of Washington and the United States, respectively, sitting in King County, Washington. 

  1. Modifying and Terminating our Services

We reserve the right to modify our Services or to suspend or stop providing all or portions of our Services at any time. You also have the right to stop using our Services at any time. We are not responsible for any loss or harm related to your inability to access or use our Services. 

  1. Assignment

You may not assign, transfer or delegate these Terms, the Services or your obligations herein, by operation of law or otherwise, without Traject’s prior written consent. Any attempt by you to assign, transfer or delegate such without consent will be void and have no effect. Traject may assign, transfer or delegate these Terms, the Services or any obligations herein at its sole discretion, without restriction. Subject to the foregoing, these Terms, the Services and each party’s respective obligations will bind and inure to their successors and permitted assignees, transferees or delegates.  

  1. Severability

If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.

  1. Miscellaneous 

The failure of Traject to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. You agree that communications and transactions between us may be conducted electronically. 

 

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