JAMMCARD TERMS OF SERVICE
Last revised on: December 18th, 2019
Welcome to Jammcard!
Jammcard is an invite-only social network for music professionals that enables professionals in the music industry to connect with each other, build communities and provide information to such communities about their skills, portfolio of content, and future availability to perform.
The website located at www.Jammcard.com (the “Site”) and the Jammcard-branded mobile application, services, technologies and software (together with the Site, collectively, the “Jammcard Platform”) are copyrighted works belonging to Jammcard (“Jammcard”, “us”, “our”, and “we”). Certain features of the Jammcard Platform may be subject to additional guidelines, terms, or rules, which will be posted on the Jammcard Platform in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into these Terms.
These terms require the use of arbitration (Section 11.2) on an individual basis to resolve disputes, rather than jury trials or class actions, and also limit the remedies available to you in the event of a dispute.
1.1 Account Creation. In order to use certain features of the Jammcard Platform, you must register for an account (“Account”) and provide certain information about yourself as prompted by the account registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Jammcard Platform. Jammcard may suspend or terminate your Account in accordance with Section 9.
1.2 Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Jammcard of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Jammcard cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
2. Access to the Jammcard Platform
2.1 License. Subject to these Terms, Jammcard grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Jammcard Platform solely for your own personal use.
2.2 Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Jammcard Platform, whether in whole or in part, or any content displayed on the Jammcard Platform; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Jammcard Platform; (c) you shall not access the Jammcard Platform in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Jammcard Platform may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Jammcard Platform shall be subject to these Terms. All copyright and other proprietary notices on the Jammcard Platform (or on any content displayed on the Jammcard Platform) must be retained on all copies thereof.
2.3 Modification. Jammcard reserves the right, at any time, to modify, suspend, or discontinue the Jammcard Platform (in whole or in part) with or without notice to you. You agree that Jammcard will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Jammcard Platform or any part thereof.
2.4 No Support or Maintenance. You acknowledge and agree that Jammcard will have no obligation to provide you with any support or maintenance in connection with the Jammcard Platform.
2.5 Ownership. Excluding any User Content that you may provide (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trade marks, and trade secrets, in the Jammcard Platform and its content are owned by Jammcard or Jammcard’s suppliers. Neither these Terms (nor your access to the Jammcard Platform) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 2.1. Jammcard and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.
3. User Content
3.1 User Content. “User Content” means any and all information and content that a user submits to, or uses with, the Jammcard Platform (e.g., content in the user’s profile or postings). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate our Acceptable Use Policy (defined in Section 3.3). You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Jammcard. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Jammcard is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.
3.2 License. You hereby grant (and you represent and warrant that you have the right to grant) to Jammcard an irrevocable, nonexclusive, royalty-free, worldwide license to reproduce, distribute, publicly display and perform, incorporate into other works, and otherwise use your User Content, and to grant sublicenses of the foregoing rights, solely for the purposes of including your User Content in the Jammcard Platform. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
3.3 Acceptable Use Policy. The following terms constitute our “Acceptable Use Policy”:
(a) You agree not to use the Jammcard Platform to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
(b) In addition, you agree not to: (i) upload, transmit, or distribute to or through the Jammcard Platform any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Jammcard Platform unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Jammcard Platform to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Jammcard Platform, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Jammcard Platform (or to other computer systems or networks connected to or used together with the Jammcard Platform), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Jammcard Platform; or (vi) use software or automated agents or scripts to produce multiple accounts on the Jammcard Platform, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Jammcard Platform (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Jammcard Platform for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
3.4 Enforcement. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your Account in accordance with Section 9, and/or reporting you to law enforcement authorities.
3.5 Feedback. If you provide Jammcard with any feedback or suggestions regarding the Jammcard Platform (“Feedback”), you hereby assign to Jammcard all rights in such Feedback and agree that Jammcard shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Jammcard will treat any Feedback you provide to Jammcard as non-confidential and non-proprietary. You agree that you will not submit to Jammcard any information or ideas that you consider to be confidential or proprietary.
4. Booking Services.
(a) The Jammcard Platform’s Booking Service is an application based communications platform which enables connections between Buyers and Music Professionals. “Buyers” are individuals and/or businesses seeking to obtain freelance musician services (“Gigs”) from Music Professionals and are therefore clients of Buyers, and “Music Professionals” are individuals seeking to perform Gigs for Buyers. Buyers and Music Professionals together are hereinafter referred to as “Users.” If you agree on the terms of a Gig with another User, you and such other User form an Independent Music Professional Agreement directly between the two of you as set forth in more detail here.
(b) Jammcard will charge a fee, payable by the Music Professional and Buyer, equal to ten (10%) of the aggregate Independent Music Professional Agreement price. Jammcard reserves the right to change the amount of the fee from time to time, and Music Professionals and Buyers will be notified of the amount owed to Jammcard before completing the booking of the Gig and Independent Music Professional Agreement process. After Music Professional and Buyer agree between them to a price for Buyer’s rental of Music Professional’s services, and sign the Independent Music Professional Agreement, the Buyer will make a payment to the Music Professional using the Jammcard Platform payment portal. The Jammcard Platform payment portal utilizes the payment processor Stripe, Inc., a San Francisco limited liability corporation (the “Processor”), which is a technical service provider and may offer the services as an agent of one or more financial institutions in the United States (each, a “Financial Services Provider”). The processing and settlement of your Transactions (as defined below) (“Payment Processing”) are carried out by the Processor and any of the Financial Services Providers under a separate Stripe Connected Account Agreement, including the United States Terms of Service and the applicable Financial Services Terms (collectively, the “Processor Terms”). By accepting these Terms, you are also accepting and agreeing to be bound by the Processor Terms which are a legal agreement between each User of the Jammcard Platform’s Booking Service and the Processor.
(c) Jammcard is not a party to the Processor Terms and is not liable to Buyers or Music Professionals in respect thereof. By accepting these Terms and the Processor Terms each User is agreeing to the creation of an account with the Processor for Payment Processing (the “Processor Account”). We reserve the right to change the Processor, subject to the terms of our agreement with Processor. In the event of any inconsistency between these Terms and the Processor Terms, these Terms shall prevail, except in the event of any inconsistency between these Terms and the Processor Terms concerning Payment Processing or the Processor Account, in which case the Processor Terms shall prevail.
(d) The Processor’s role is to accept and process credit card, debit card and other types of payments (collectively “Cards”) with respect to the processing the price of Gigs between the Buyer and the Music Professional through internet-based transactions (“Card Not Present Transactions” or “CNP Transactions”). If applicable, POS Equipment permits transmission of data to the Processor from in-person, point-of-sale transactions (“Card Present Transactions” or “CP Transactions”) as well as manually entered transactions (“Keyed Transactions”). CNP Transactions, CP Transactions and Keyed Transactions shall be referred to herein, collectively, as “Transactions”.
(e) Each User has the individual responsibility to determine what, if any, taxes (“Taxes”) apply to the sale of your goods and services and/or the payments you receive in connection with your use of the Jammcard Platform Booking Service. It is solely each User’s responsibility to assess, collect, report, or remit the correct tax to the proper tax authority. We are not obligated to, nor will we determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction.
(f) MUSIC PROFESSIONALS ARE INDEPENDENT CONTRACTORS OF BUYERS AND NOT EMPLOYEES, PARTNERS, REPRESENTATIVES, AGENTS, JOINT VENTURERS, INDEPENDENT CONTRACTORS OR FRANCHISEES OF JAMMCARD. JAMMCARD DOES NOT PERFORM GIGS AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM GIGS. USERS HEREBY ACKNOWLEDGE THAT JAMMCARD DOES NOT SUPERVISE, DIRECT, CONTROL OR MONITOR A MUSIC PROFESSIONAL’S WORK AND EXPRESSLY DISCLAIMS ANY RESPONSIBILITY AND LIABILITY FOR THE WORK PERFORMED AND THE GIGS IN ANY MANNER, INCLUDING BUT NOT LIMITED TO A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANTY OR CONDITION OF QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR COMPLIANCE WITH ANY LAW, REGULATION, OR CODE.
(g) The Jammcard Platform only enables connections between Users for the fulfillment of Gigs. Jammcard is not responsible for the performance or communications of Users, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of Gigs, Music Professionals, Buyers, nor of the integrity, responsibility, competence, qualifications, or any of the actions or omissions whatsoever of any Users, or of any ratings provided by Users with respect to each other. Jammcard makes no warranties or representations about the suitability, reliability, timeliness, or accuracy of the Gigs requested or services provided by, or the communications of or between, Users identified through the Jammcard Platform, whether in public, private, or offline interactions or otherwise howsoever.
5. Indemnification. You agree to indemnify and hold Jammcard (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Jammcard Platform, (b) your violation of these Terms, (c) your violation of applicable laws or regulations or (d) your User Content. Jammcard reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Jammcard. Jammcard will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
6. Third-Party Links & Ads; Other Users
6.1 Third-Party Links & Ads. The Jammcard Platform may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Such Third-Party Links & Ads are not under the control of Jammcard, and Jammcard is not responsible for any Third-Party Links & Ads. Jammcard provides access to these Third-Party Links & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Ads.
6.2 Other Users. Each Jammcard Platform user is solely responsible for any and all of its own User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content, whether provided by you or by others. We make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content (although we do encourage you to report any false information you see regarding any User Content on the Jammcard Platform). Your interactions with other Jammcard Platform users are solely between you and such users. You agree that Jammcard will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Jammcard Platform user, we are under no obligation to become involved.
6.3 Release. You hereby release and forever discharge Jammcard (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Jammcard Platform (including any interactions with, or act or omission of, other Jammcard Platform users or any Third-Party Links & Ads). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “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.”
THE Jammcard Platform IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND JAMMCARD (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE Jammcard Platform WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE Jammcard Platform, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
8. Limitation on Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL JAMMCARD (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE Jammcard Platform, EVEN IF JAMMCARD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE Jammcard Platform IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
9. Term and Termination. Subject to this Section, these Terms will remain in full force and effect while you use the Jammcard Platform. We may suspend or terminate your rights to use the Jammcard Platform (including your Account) at any time for any reason at our sole discretion, including for any use of the Jammcard Platform in violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the Jammcard Platform will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our live databases. Jammcard will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion of your User Content. Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 2.2 through 2.5, Section 3 and Sections 5 through 11.
10. Copyright Policy.
Jammcard respects the intellectual property of others and asks that users of our Jammcard Platform do the same. In connection with our Jammcard Platform, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Jammcard Platform who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Jammcard Platform, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
your physical or electronic signature;
identification of the copyrighted work(s) that you claim to have been infringed;
identification of the material on our services that you claim is infringing and that you request us to remove;
sufficient information to permit us to locate such material;
your address, telephone number, and e-mail address;
a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
11.1 Changes. These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our Jammcard Platform. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Jammcard Platform. These changes will be effective immediately for new users of our Jammcard Platform. Continued use of our Jammcard Platform following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
11.2 Dispute Resolution. Please read this Arbitration Agreement carefully. It is part of your contract with Jammcard and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by Jammcard that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and Jammcard, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
(b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Jammcard should be sent to: c/o Mitchell Silberberg & Knupp LLP, 2049 Century Park East, 18th Floor, Los Angeles, California 90067; Attn: Eric J. German, Esq. After the Notice is received, you and Jammcard may attempt to resolve the claim or dispute informally. If you and Jammcard do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(c) Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that Jammcard made to you prior to the initiation of arbitration, Jammcard will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
(d) Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
(e) Time Limits. If you or Jammcard pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
(f) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Jammcard, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Jammcard.
(g) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Jammcard in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND JAMMCARD WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
(i) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(j) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
(k) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
(l) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Jammcard.
(m) Small Claims Court. Notwithstanding the foregoing, either you or Jammcard may bring an individual action in small claims court.
(n) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
(o) Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
(p) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Los Angeles County, California, for such purpose
11.3 Export. The Jammcard Platform may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Jammcard, or any products utilizing such data, in violation of the United States export laws or regulations.
11.4 Disclosures. Jammcard is located at the address in Section 11.8. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
11.5 Electronic Communications. The communications between you and Jammcard use electronic means, whether you use the Jammcard Platform or send us emails, or whether Jammcard posts notices on the Jammcard Platform or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Jammcard in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Jammcard provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
11.6 Entire Terms. These Terms constitute the entire agreement between you and us regarding the use of the Jammcard Platform. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Jammcard is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Jammcard’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Jammcard may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
11.7 Copyright/Trademark Information. All trademarks, logos and service marks (“Marks”) displayed on the Jammcard Platform are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
11.9 Contact Information:
Christopher Marks, Founder and CEO
Address: 7119 W. Sunset Blvd., #725
Los Angeles, California 90046
* * *