DragonFruit Terms of Service
As of December 2, 2015
Please Read This Document Carefully
DragonFruit, Inc. (“Project DragonFruit,” “we,” or “us”) operates the DragonFruit mobile app and related website (which app and website may hereinafter be referred to as “DragonFruit” when referring to the app, website, both, or any service currently provided by Project DragonFruit). By using DragonFruit in any manner, you accept these Terms of Service (“Agreement”). If you do not wish to be bound by this Agreement, do not use DragonFruit.
- By accessing or using the Service, you accept this Agreement and agree to the terms, conditions and notices contained or referenced herein and consent to have this Agreement and all notices provided to you in electronic form. To withdraw this consent, you must cease using the Service and terminate your account. Please print a copy of this Agreement for your records. To receive a non-electronic copy of this Agreement, please contact us. This Agreement may be modified by the Company from time to time, such modifications to be effective upon posting by the Company in the Service.
Who May Use DragonFruit
You must be 18 years old or older to use DragonFruit. By using DragonFruit, you represent and assume that you have the authority and capacity to enter into this agreement and to abide by all the terms listed in this Agreement. If you use DragonFruit, you represent that you have never been convicted of a felony and that you are not required to register as a sex offender with any government entity.
License to Use DragonFruit
Project DragonFruit grants you a limited, non-exclusive license to access and use DragonFruit for your own personal use and not for commercial purposes. This license is personal to you and may not be assigned or sublicensed to anyone else.
You cannot reproduce, redistribute, sell, create derivative works, or disassemble DragonFruit unless expressly permitted by Project DragonFruit in writing. You may also not take any action to interfere with or damage DragonFruit. All rights are reserved by Project DragonFruit unless expressly granted in writing.
- Information we collect
- How we use your information
- Use of your information by others
- Children’s Privacy
- Information from others outside the United States
- Links to other websites or services
- Steps we take to protect your privacy
Registration and Accounts
Although you may register as a member of the service for free, if you wish to access certain and various additional features of the service you must become a subscriber and pay the fees that are set out in our price list, which is part of this agreement. Project DragonFruit reserves the right to change any fees or charges for using the service at any time. To become a member, you must register for the service. When registering to become a member, you agree to provide accurate, current and complete information about yourself as prompted by our registration form (“Registration Data”), and to maintain and update your information to keep it accurate, current and complete. You agree that we may rely on your registration data as accurate, current and complete. You acknowledge that if your registration data is untrue, inaccurate, not current or incomplete in any respect, we may terminate this agreement to the extent provided under the heading “Termination” of this agreement, and your use of the service and, in such event, you shall not be entitled to a refund of any unused subscription fees. Although we aim to verify the accuracy of the information provided by our members, we do not verify information in profiles, and we have no control over, do not guarantee, and are not responsible for the quality, truth, accuracy, legality or safety of our members.
Communications and Test Profiles.
You agree and consent to receive email messages from us. These emails may be transactional or relationship communications relating to services provided by Project DragonFruit, such as administrative notices and notices regarding changes to services, or emails containing commercial offers, promotions or special offers from us or third party partners. From time to time, employees of Project DragonFruit may create profiles for the purpose of testing the functionality of our service and website and mobile app. You further understand that telephone calls between you and our customer care representatives may be recorded for quality assurance purposes.
Terms and Termination of Account
This Agreement begins on the date you use DragonFruit for the first time and continues until terminated in accordance with this Agreement. This Agreement will remain in full force and effect while you use the websites, app, or the service generally and/or are a member, and after you have ended use of the websites, apps, or the service generally and/or ceased to be a member
Project DragonFruit may suspend, disable, or delete your account if Project DragonFruit determines that you have violated any provision of this Agreement or that your conduct or content would tend to damage Project DragonFruit’ reputation or goodwill or limit, interfere with, or generally hinder the use of the service by other members. If Project DragonFruit deletes your account any reasons of misconduct, you may not re-register under a different name.
Either you or we may terminate your membership by removing your profile, at any time, for any reason, with or without explanation, effective upon sending written or email notice to the other party. Upon such termination by us without cause, we shall refund, pro rata, any unused portion of any subscription payments that we have received from You. If we should terminate your membership and remove your profile with cause, you will not receive any such refund.
Upon termination, all licenses granted by Project DragonFruit will terminate. In the event of account deletion for any reason, content that you submitted may no longer be available and Project DragonFruit is not be responsible for the loss of such content.
Disclaimers and Limitation of Liability
You are solely responsible for your actions and interactions with other DragonFruit users. By using DragonFruit, you understand that Project DragonFruit does not conduct criminal background checks and does not verify or inquire into the background of its users. Project DragonFruit makes no representations or warranties as to the conduct of current or future users. Project DragonFruit makes no warranties in regard to the compatibility of its users and their interactions. Project DragonFruit reserves the right to conduct criminal background checks or any other screenings at anytime and reserves the right to use available public records. In no event will Project DragonFruit be liable for any damages, whether direct, indirect, general, special, consequential, and/or incidental, arising out or relating to the conduct of you or anyone else in connection with the use of the service, including without limitation bodily injury, death, emotional distress, and or any other damages or otherwise resulting from communication or meeting with other users of the DragonFruit service or person you meet through DragonFruit. You agree to take reasonable precautions in all interactions with other users of the service, particularly if you decide to meet in person. Project DragonFruit reserves the right to modify DragonFruit. You are responsible for providing your own access to DragonFruit. Project DragonFruit has no obligation to screen or monitor any content and does not guarantee that any content available on DragonFruit complies with this Agreement or is suitable for all users.
Project DragonFruit provides DragonFruit on an “as is” and “as available” basis. Therefore, you use DragonFruit at your own risk. Project DragonFruit disclaims any and all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, non-infringement, and any other warranty that might arise under any law. Without limiting the foregoing, Project DragonFruit makes no representations or warranties:
- That DragonFruit is permitted in your jurisdiction;
- That DragonFruit service will be uninterrupted or error-free;
- Concerning any content submitted by any user;
- With regard to any third party’s use, including use by other DragonFruit members, of content that you submit;
- That any content you submit will be made available on DragonFruit or will be stored by Project DragonFruit;
- That Project DragonFruit will continue to support any particular feature of the DragonFruit service;
- With regard to any content posted, whether blog articles, links, message board posting, or any other content made available by Project DragonFruit, Project DragonFruit’s, or any of its owners, employees, affiliates, subsidiaries, members, successors in interest, or otherwise, views on any given topic, regardless of any implications or otherwise;
- Concerning sites and resources outside of DragonFruit, even if linked to from DragonFruit, including the accuracy of any information contained therein.To the extent any disclaimer or limitation of liability does not apply, all applicable express, implied, and statutory warranties will be limited in duration to a period of thirty (30) days after the date on which you first used DragonFruit, and no warranties shall apply after such period.
Code of Conduct and Prohibited Activities
You will use the Service in a manner consistent with any and all applicable laws and regulations. You will not include in Your profile any telephone numbers, street addresses, last names, URL’s or email addresses, other than in response to Our prompts in the personal or general information sections of the Websites. You will not engage in advertising to, or solicitation of, other members to buy or sell any products or services through the Service. You will not transmit any chain letters or junk email to other members. To protect Our members against such conduct, depending on the Website, We currently limit the number of messages that any member may send in a day. We reserve the right to change this number, at our sole discretion, at any time. You are solely responsible for Your interactions with other members. We reserve the right, but have no obligation, to monitor and/or mediate disputes between You and other members.In using DragonFruit, you must behave in a civil and respectful manner at all times. Further you will not:
- Harass or stalk any other person;
- Harm or exploit minors;
- Act in a deceptive manner by, among other things, impersonating any person;
- Collect information about others;
You will not express or imply that any statements you make are endorsed by Project DragonFruit without our specific prior written consent. You will not distribute spam, and will not use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Service or its contents. You will not post, distribute or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior consent of the owner of such proprietary rights. You will not interfere with or disrupt the services or the site or the servers or networks connected to the services or the site. You will not post, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
Project DragonFruit has the right, but not the obligation, to monitor all conduct on and content submitted to DragonFruit, and reserves the express, absolute right to remove any content posted by any member for any or no reason whatsoever, in Project DragonFruits sole discretion, including but not limited to photographs, messages, profile content, images, posts, or any other material.
You are solely responsible for the content that you publish or display (hereinafter, “post”) on the service, or transmit to other members. You will not post on the service, or transmit to other users, any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, racially offensive, or ill material, or any material that infringes or violates another party’s rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity). You will not provide inaccurate, misleading or false information to Project DragonFruit or to any other user. If information provided to Project DragonFruit or another user, subsequently becomes inaccurate, misleading or false, you will promptly notify us of such change. The following is a partial list of content you may not upload, post, or transmit (collectively, “submit”) materials that:
- are patently offensive to the online community, such as content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
- harasses or advocates harassment of another person;
- promotes information that is false, misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
- provides material that exploits people under the age of 18 in a sexual or violent manner, or solicits personal information from anyone under the age of 18;
- contains sexually explicit content;
- provides instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses;
involves the transmission of “junk mail”, “chain letters,” or unsolicited mass mailing or “spamming”;
- promotes an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated images, audio or video, or links to pirated images, audio or video files;
- solicits passwords or personal identifying information for commercial or unlawful purposes from other users;
- engages in commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes;
- infringes any third party’s copyrights or other rights (e.g., trademark, privacy rights, etc.).
Your use of the Service, including but not limited to the content you post on the service, must be in accordance with any and all applicable laws and regulations.
You may not include in your user profile any telephone numbers, street addresses, last names, URLs or email addresses.
Licenses Granted by You
You grant Project DragonFruit and its affiliates a worldwide, perpetual, irrevocable, non-exclusive, royalty-free license and right to copy, transmit, distribute, publicly perform and display (through all media now known or hereafter created), use in general, and make derivative works from your content. In addition, you waive any so-called “moral rights” in your content. You further grant all users of DragonFruit permission to view your content for their personal, non-commercial purposes.
If you make suggestions to Project DragonFruit on improving or adding new features to DragonFruit, Project DragonFruit shall have the right to use your suggestions without any compensation to you whatsoever. This paragraph shall apply to such items including, but not limited to, suggestions, improvements, features, code, blog posts, promotions for events, merchandise, giveaways, promotions, etc.
You are responsible for maintaining the confidentiality of the username and password you designate during the registration process, and you are solely responsible for all activities that occur under your username and password. You agree to immediately notify Project DragonFruit of any disclosure or unauthorized use of your username or password or any other breach of security, and ensure that you log out from your account at the end of each session.
Representations and Warranties, Proprietary information
You represent and warrant to us that the information posted in your profile, including your personal information and your photograph, and any other photographs, has been posted by you only and that you are the exclusive author of your profile and the exclusive owner of your photographs. You assign to us, to the extent possible under the law and with full title guarantee, all copyright in your profile, your photographs posted, and any additional information sent to us at any time in connection with your use of the service. You waive absolutely any and all moral rights to be identified as author of your profile and owner of your photographs and any similar rights in any jurisdiction in the world. In addition, other members might post copyrighted information, which has copyright protection, whether or not it is identified as copyrighted. Except for that information which is in the public domain or for which you have been given express written permission, you will not copy, modify, publish, transmit, distribute, perform, display, or sell any such proprietary information. By posting information, photographs or content on any service, you automatically grant, and you represent and warrant that you have the right to grant, to us and other members, free of charge, an irrevocable, perpetual, non-exclusive, royalty-free, fully-paid, worldwide license to use, copy, perform, display, promote, publish and distribute such information, content and photographs and to prepare derivative works of, or incorporate into other works, such information and content, and to grant and authorize sub-licenses of the foregoing.
For each piece of content that you submit, you represent and warrant that: (i) you have the right to submit the content to Project DragonFruit and grant the licenses set forth above; (ii) Project DragonFruit will not need to obtain licenses from any third party or pay royalties to any third party; (iii) the content does not infringe any third party’s rights, including intellectual property rights and privacy rights; and (iv) the content complies with this Agreement and all applicable laws. You understand and acknowledge that any material you post which infringes on the copyright of any entity may be removed by Project DragonFruit without any form of prior notice whatsoever as outlined below.
Use of Service
You are solely responsible for the content or information you publish or display (hereinafter, “post”) on the service, or transmit to other members. You will not post on the service, or transmit to other members or to us or our employees, any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, racially offensive, or illegal material, or any material that infringes or violates another party’s rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity). You will not include in your profile any offensive language, including but not limited to offensive anatomical or sexual references, or offensive sexually suggestive or connotative language, and you will not post any photos containing nudity or personal information. We reserve the right, but we have no obligation, to reject any profile or photo. We reserve the right to refuse service to anyone, at our sole discretion.
You will use the service in a manner consistent with any and all applicable laws and regulations. You will not include in your profile any telephone numbers, street addresses, last names, URL’s or email addresses, other than in response to our prompts in the personal or general information sections of the Websites. You will not engage in advertising to, or solicitation of, other members to buy or sell any products or services through the service. You will not transmit any chain letters or junk email to other members. To protect our members against such conduct, we may limit the number of messages that any member may send in a day. We reserve the right to change this number, at our sole discretion, at any time. You are solely responsible for your interactions with other members. We reserve the right, but have no obligation, to monitor and/or mediate disputes between you and other members. Project DragonFruit reserves the right to refer any abusive user to the Police in that user’s local jurisdiction should they be in violation of any criminal law. To this extent, Project DragonFruit may provide any materials posted to DragonFruit by the member to such Authorities. However, Project DragonFruit has no obligation to so refer any abusive user to Police, and may only do so at its own discretion.
You will not harass or impersonate any person or entity. You will not use any manual or automatic device or process to retrieve, index, data mine, or, in any way reproduce or circumvent the navigational structure or presentation of the service or its contents. You will not express or imply that any of your statements are endorsed by us, without our specific prior written consent. You will not interfere with or disrupt any service or any Website or app, servers or networks connected to any service or Website or app. You will not post, distribute or reproduce, in any way, any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights. You will not remove any copyright, trademark or other proprietary rights notices contained in the service or forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the service. You will not use meta tags or code or other devices containing any reference to us or the service or the website or apps connected to the service in order to direct any person to any other website for any purpose. You will not modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the service or any software used on or for the service or cause or enable others to do so. You will not post, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, harm or limit the functionality of any computer software or hardware. You will not copy the any of the designs of this service, you will not create a facsimile that is intended to deceive others that you are a member of DragonFruit or otherwise use any portion of the website, app, or copyrighted or trademarked materials of Project DragonFruit for any purpose whatsoever without the prior express written consent of Project DragonFruit.
You will indemnify, defend, and hold harmless Project DragonFruit and its owners, affiliates, directors, officers, employees, subsidiaries, successors in interest, affiliates, and agents and assigns, from and against any and all third party actions that: (i) arise from your activities on DragonFruit; (ii) assert a violation by you of any term of this Agreement; or (iii) assert that any content you submitted to DragonFruit violates any law or infringes any third party right, including any intellectual property or privacy right. This list is not inclusive but not exhaustive.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOSS OF PROGRAMS, COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR SERVICE INTERRUPTIONS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US FOR THE SERVICE DURING THE TERM OF YOUR MEMBERSHIP TO THE MAXIMUM EXTENT PERMITTED BY LAW. WE DO NOT CONDUCT BACKGROUND CHECKS ON MEMBERS REGISTERING FOR THE SERVICE IN ANY WAY. ANY ATTEMPT BY PROJECT DRAGONFRUIT TO SCREEN MEMBERS IS NOT A GUARANTEE OF SAFETY ON THE WEBSITE. YOU ARE RESPONSIBLE FOR YOUR OWN SAFETY ON THE WEBSITE AND WHEN MEETING OTHER MEMBERS IN PERSON. WE WILL NOT BE LIABLE FOR ANY DAMAGES, DIRECT, INDIRECT, INCIDENTAL AND/OR CONSEQUENTIAL, INCLUDING BY NOT LIMITED TO PHYSICAL DAMAGES, BODILY INJURY OR EMOTIONAL DISTRESS, ARISING OUT OF THE USE OF THIS SERVICE, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING OUT OF YOUR COMMUNICATIONS WITH AND/OR INTERACTIONS WITH ANY OTHER MEMBER OF THE SERVICE, OR ANY INDIVIDUAL YOU MEET VIA THE SERVICE. COMPLAINTS: To resolve a complaint regarding the Service, you should first contact our customer service department at the following email address: firstname.lastname@example.org.
Third Party Copyrights and Other Rights Copyright Policy
Project DragonFruit respects the intellectual property of others, and we ask our users to do the same. Each user is responsible for ensuring that the materials they upload to DragonFruit do not infringe any third party copyright.
Project DragonFruit will promptly remove materials in accordance with the Digital Millennium Copyright Act (“DMCA”) if properly notified that the materials infringe a third party’s copyright. In addition, Project DragonFruit may, in appropriate circumstances, but may for any reason and at any time, terminate the accounts of repeat copyright infringers. For removal procedures pursuant to DMCA, please see below.
NOTICE OF PROCEDURE FOR MAKING A CLAIM OF COPYRIGHT INFRINGEMENT. If you believe that any content on the Web Sites constitute work that is owned by you or a third party, and is displayed on the Web Sites or apps without proper authorization, please send the following information to the attention of the Copyright Agent noted below:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on this Web Sites;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Dragon Fruit, Inc.
85 Broad Street, 18th Floor
New York, New York 10004
This Agreement shall be governed by the laws of the State of Delaware, United States of America, without regard to principles of conflicts of law. The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods shall not apply.
If You have a dispute with one or more of our members, you release us (and our owners, officers, directors, agents, subsidiaries, joint ventures, successors in interest, and employees) from any claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute.
Any action arising out of or relating to this Agreement or your use of DragonFruit must be commenced in the state or federal courts located in New York County, New York, United States of America (and you consent to the jurisdiction of those courts). In any such action, you irrevocably waive any right to a trial by jury.
INTERPRETATION; SEVERABILITY; WAIVER; REMEDIES:
Headings are for convenience only and shall not be used to construe the terms of this Agreement. If any term of this Agreement is found invalid or unenforceable by any court of competent jurisdiction, that term will be severed from this Agreement. No failure or delay by Project DragonFruit in exercising any right hereunder will waive any further exercise of that right. Project DragonFruit’ rights and remedies hereunder are cumulative and not exclusive.
- If for whatever reason Project DragonFruit does not enforce any term, right, obligation, or any other part of this agreement, it shall not constitute a waiver.
- Nothing in this Statement shall prevent us from complying with any laws to the extent the same is possible in situations of conflicting law.
- Project DragonFruit reserve all rights not expressly granted to you.
SUCCESSORS; ASSIGNMENT; NO THIRD PARTY BENEFICIARIES:
This Agreement is binding upon and shall inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. You may not assign this Agreement without Project DragonFruit’ prior written consent. No third party shall have any rights hereunder.
You consent to receive all communications including notices, agreements, disclosures, or other information from Project DragonFruit electronically. Project DragonFruit may provide all such communications by email or by posting them on DragonFruit. Support-related inquiries or notices of a legal nature (such as a subpoena) may be sent to us at support@DragonFruit.com or the following address:
85 Broad Street, 18th Floor
New York, New York 10004
MODIFICATION; ENTIRE AGREEMENT:
This Agreement may not be modified except by a revised Terms of Service posted by Project DragonFruit on DragonFruit or a written amendment signed by an authorized representative of Project DragonFruit. A revised Terms of Service will be effective as of the date it is posted and such a revised Terms of Service may be issued at any time by Project DragonFruit or DragonFruit. This Agreement constitutes the entire understanding between Project DragonFruit and you concerning the subject matter hereof and supersedes all prior agreements and understandings regarding the same.
RESOLUTION OF DISPUTES:
(a) Arbitration of Any And All Disputes (Other Than Certain Intellectual Property Disputes As Defined Below, And Claims That May Be Adjudicated In Small Claims Court).
This provision shall apply to the resolution of any dispute arising out of or in any way related to the Websites, the Service, the Mobile Apps, this Agreement, any amendments or addenda thereto, and the subject matter hereof, including without limitation any contract, tort, statutory or equity claims between You and Us or Our officers, directors, owners, employees, agents, subsidiaries, or joint ventures (the “Dispute”); provided, however, that any claims specifically described in subparagraph (b) below will not be included in the definition of Dispute. You may also assert claims in small claims court if your claims qualify. In the event of any Dispute, the parties are encouraged to attempt to resolve the Dispute by informal means. If the parties are not able to do so, the Dispute will be resolved only by binding arbitration.
Arbitration is the referral of a dispute to one or more impartial persons for a final and binding determination. Any Dispute shall be subject only to binding arbitration. The parties expressly agree that there shall be no jury trial or right to a jury trial, or right to any other proceeding to resolve any Dispute in any court. In the event of any Dispute, both parties agree that the arbitration provision in this Agreement will be governed, both procedurally and substantively, by the Federal Arbitration Act, 9 U.S.C. sections 1-9 (“FAA”) to the maximum extent permitted by applicable law.
All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties, and any party shall have the right to prevent any actual or threatened breach of this confidentiality provision by temporary, preliminary or permanent injunctive, or declaratory relief in an appropriate court of law. This provision shall not prevent either party from filing a petition in court to confirm an arbitration award.
The parties expressly agree that any Dispute is personal to them, and any Dispute shall only be resolved by an individual arbitration. Neither party agrees to class arbitration, or an arbitration where a person brings a Dispute as a representative of any other person or persons. Neither party agrees that a Dispute can be brought as a class or representative action outside of arbitration, or on behalf of any other person or persons. The parties agree that that a Dispute may only be resolved through an individual arbitration and shall not be brought as a class arbitration, a class action, or any other representative proceeding. If Your agreement to waive any right to a jury trial or to participate in a class action is found to be unenforceable, then the entirety of this arbitration section will be null and void and neither You nor We will be entitled to arbitrate our dispute.
The arbitration of the Dispute will be administered by the American Arbitration Association (“AAA”) or, in the event the AAA declines or is unable to administer the arbitration, by an arbitration forum or arbitrator that You and We mutually agree upon. If, after making a reasonable effort, You and We are unable to agree upon an arbitration forum or arbitrator, the AAA or a court having proper jurisdiction will appoint an arbitration forum or arbitrator. The arbitration will be conducted in accordance with the AAA’s Commercial Arbitration Rules (“Commercial Rules”) and, when deemed appropriate by the arbitration forum or arbitrator, the AAA’s Supplementary Procedures for Consumer-Related Disputes (“Consumer Procedures”), or the appropriate rules of any alternative arbitration forum selected by You and Us or appointed by a court, subject to the following modifications:
- The arbitration will be conducted before a single arbitrator who will be a licensed attorney or a former judge and will have at least five (5) years of legal experience in the resolution of commercial disputes.
- As limited by the FAA, the terms of this Agreement, and the applicable AAA rules, the arbitrator will have the exclusive power and jurisdiction to make all procedural and substantive decisions concerning the Dispute. This does not include the power to conduct a class arbitration or a representative action, which is prohibited by the terms of this agreement as stated above. The arbitrator may only conduct an individual arbitration, and may not consolidate more than one person’s claims and may not preside over any form of representative or class proceeding, or any proceeding on behalf of or involving more than one person or persons.
- The parties may take discovery through interrogatories, depositions and requests for production that the arbitrator determines to be necessary and appropriate.
- The prevailing party in any of the following matters (without regard to the Limitation of Liability provisions) shall be entitled to recover its reasonable attorneys’ fees and costs incurred in any of the following circumstances: (i) a motion which any party is required to make in any court to compel arbitration of a Dispute; (ii) any appeal of an arbitration award, whether to the arbitrator or the courts, for the purpose of vacating or modifying the award; or (iii) any action to enforce the confidentiality provisions stated herein
- We will pay the amount of any arbitration costs and fees charged by the AAA for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. In no event will We pay for Your attorneys’ fees unless required by law.
To begin an arbitration proceeding, You must send a letter requesting arbitration and describing your claim to: Dragon Fruit, Inc., 85 Broad Street, New York, New York 10004 Attn: Legal. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. The AAA Commercial Rules and Consumer Procedures, the forms You may need to begin the arbitration proceeding, and other information about the AAA, are available from the AAA, which can be contacted by mail at 1633 Broadway, Floor 10, New York, New York 10019, by telephone at (800) 778-7879, or through its website at www.adr.org.
(b) This Agreement does not require You or Us to submit to arbitration any Dispute involving Our intellectual property rights in and to the Websites or the Service, including without limitation (1) claims of infringement or misappropriation of any United States or foreign copyright, patent, trade secret, trademark, service mark or trade dress, (2) claims alleging violations of Title 17 of the United States Code, Sections 1201 and/or 1202, or of any similar foreign law, or (3) in any matter that involves any of the foregoing claims, for resolution or decision of any question of fact or law required to resolve such claim, including, but not limited to, questions required to decide or rule with respect to the infringement, misappropriation, validity, enforceability or ownership of any copyright, patent, trade secret, trademark, service mark or trade dress or with respect to any remedy or relief at law or in equity for any such infringement or misappropriation or for any violation of such Sections 1201 and/or 1202.
(c) With the exception of the provision above that the enforceability of this section on “Resolution of Disputes” is governed both procedurally and substantively by the FAA to the maximum extent permitted by applicable law, this Agreement otherwise will be construed and enforced in accordance with the laws of the State of California ONLY as applicable to contracts entered into and performed in California to the maximum extent permitted by law (and without giving effect to California’s conflict of law principles). This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. Contracts entered into and performed in all other states shall be governed by the laws of the State of Delaware.
(d) You and We acknowledge and agree that any violation of this “Resolution of Disputes” section of this Agreement may cause the parties irreparable harm, and therefore You and We agree that the parties will be entitled to seek extraordinary relief in court, including but not limited to temporary restraining orders, preliminary injunctions and permanent injunctions without the necessity of posting a bond or other security, in addition to and without prejudice to any other rights or remedies that the parties may have for a breach of the “Resolution of Disputes” section of this Agreement.
(e) With the exception of Your agreement to waive any right to a jury trial or to participate in a class action, if any other provision in this RESOLUTION OF DISPUTES section is held to be illegal, invalid or unenforceable, such provision shall be fully severable, the RESOLUTION OF DISPUTES section shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this section, and the remaining provisions of this section shall remain in full force and effect. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as part of the RESOLUTION OF DISPUTES section a legal, valid and enforceable provision as similar as possible to the former provision.
LIMITATION OF TIME PERIOD TO COMMENCE ANY DISPUTE: Regardless of any statute of limitations or law to the contrary, and to maximum extent permitted by applicable law, any Dispute arising out of or related to the Websites, the Service, or this Agreement must be filed within six (6) months after the date in which the incident giving rise to the Dispute occurred ; provided that, if the substantive law applicable to the arbitration prohibits the parties from agreeing to this limitations period, then the limitations period under the applicable substantive law shall control. The failure of a party to file an arbitration claim within the applicable limitations period shall constitute a waiver by that party of its right to bring such a claim relating to any Dispute in any form, and a complete bar to any claim based on any Dispute, and the arbitrator shall not have jurisdiction to make a determination for a party that has not brought its Dispute for determination within the applicable limitations period.