BY CLICKING “I ACCEPT,” OR OTHERWISE ACCESSING OR USING THE SERVICES, OR ANY PORTION THEREOF, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT (ON BEHALF OF YOURSELF AND, AS APPLICABLE, THE ENTITY THAT YOU REPRESENT). IF THE INDIVIDUAL ENTERING INTO THIS AGREEMENT OR OTHERWISE ACCESSING OR USING THE SERVICES IS DOING SO ON BEHALF OF, OR WITHIN HIS OR HER CAPACITY AS A REPRESENTATIVE, AGENT, OR EMPLOYEE OF AN ENTITY, SUCH INDIVIDUAL AND SUCH ENTITY: (i) AGREE THAT THE TERMS “YOU” AND “YOUR” AS USED HEREIN APPLY TO SUCH ENTITY; AND (ii) REPRESENT AND WARRANT THAT THE INDIVIDUAL ENTERING INTO THIS AGREEMENT HAS THE POWER, RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ENTITY.
YOU MAY NOT ACCESS OR USE THE SERVICES OR ACCEPT THIS AGREEMENT IF YOU ARE AN INDIVIDUAL THAT IS NOT AT LEAST 16 YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES.
IF YOU PURCHASE A SUBSCRIPTION (AS DEFINED BELOW) TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN YOUR SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT CONTINUUM’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU OPT OUT OF THE AUTO-RENEWAL / DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 7.4 BELOW.
PLEASE BE AWARE THAT SECTION 12 OF THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING ARBITRATION. UNLESS YOU OPT OUT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE, CLAIM, OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
1.1. Account Creation.
In order to use certain features of the Services, you must register for an account (“Account”). You promise that: (a) all required information you submit in connection with your registration of an Account is truthful and accurate; and (b) you will maintain the accuracy of such information. Continuum may suspend or terminate your Account in accordance with Section 11 below.
1.2. Account Responsibilities.
You are responsible for all activities that occur under your Account. You agree to immediately notify Continuum of any unauthorized use or suspected unauthorized use, of your Account or any other breach of security. Continuum will not be liable for any loss or damage arising from your failure to comply with the above requirements. You may not share your Account or password with anyone. You agree not to create an Account or use the Services if you have been previously removed by Continuum.
2. ACCESS TO THE SERVICES.
2.1. Access and Use.
Subject to this Agreement, Continuum grants you a limited, non-exclusive, revocable, limited, nontransferable, non-assignable, non-sublicensable, and “as is” right to use and access the Services solely for your own personal use, subject to any use limitations.
2.2. App License.
Subject to your compliance with the Agreement, Continuum grants you a limited non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable, and “as is” license to download, install and use a copy of the App on mobile devices that you own or control and to run such copy of the App solely for your own personal use in connection with accessing and using the Services.
2.3. Acceptable Use Policy.
You agree not to: (i) upload, transmit, or distribute to or through the Services any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Services 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) abuse other users’ personal information that you receive through the Services, such as 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 Services, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Services (or to other computer systems or networks connected to or used together with the Services), whether through password mining or any other means; (vi) interfere with any other user’s use and enjoyment of the Services; (vii) request or offer to perform a request that is illegal or violates any of the terms set forth herein; (viii) impersonate any person or entity, including any employee or representative of Continuum; or (ix) use software or automated agents or scripts to produce multiple Accounts on the Services, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Services (provided, however, that we may conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Continuum website 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).
Continuum may in its sole discretion, but is not obligated to, monitor or review your use of the Services at any time. If Continuum becomes aware of any possible violations by you of any provision of the Agreement, Continuum may investigate such violations, and, at its sole discretion, immediately suspend or terminate your license to use the Services without prior notice to you.
While we aim to communicate any significant changes to our users, we nonetheless reserve the right to modify, update, suspend, or discontinue the Services (in whole or in part) at any time with or without notice to you. You agree that Continuum is not liable to you or to any third party for any modification, update, suspension, or discontinuation of the Services. You may need to update third-party software from time to time in order to use the Services.
2.6. Third-Party Materials.
As a part of the Services, you may have access to materials that are hosted by another party, as made available by another user. You agree that it is impossible for Continuum to monitor such materials and that you access these materials at your own risk.
2.7. Storage Limitations.
Unless expressly agreed to by Continuum in writing elsewhere, Continuum may set limitations on the amount of User Content that you can Make Available on the Services. Continuum has no responsibility or liability for the deletion or accuracy of any User Content, including Your Content as defined in Section 4.2; the failure to store, transmit or receive transmission of User Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. You agree that Continuum retains the right to create reasonable limits on Continuum’s use and storage of the User Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Services and as otherwise determined by Continuum in its sole discretion.
2.8. Digital Wallet.
You may be able to connect a compatible third-party digital wallet (“Digital Wallet”) to your Account on the Services. You may be required to download a supported bridge extension in order to connect and unlock your digital wallet through the Services. Whether a particular Digital Wallet is accepted as a payment method by Continuum or otherwise compatible with the Service is subject to change at any time in Continuum’s sole discretion.
2.9. Continuum NFTs.
You may be able to unlock certain benefits associated with non-fungible tokens issued by Continuum and hosted on the Ethereum blockchain (“Continuum NFTs”) using a Digital Wallet connected to the Services. The then-current owner of a Continuum NFT who has linked their Digital Wallet to their Account may be entitled to access certain limited or members-only features on or through the Services, in each case in accordance with the then-current functionalities of such Services and as may be modified by Continuum from time to time in Continuum’s sole discretion. CONTINUUM NFTS ARE NOT EXCHANGEABLE OR REDEEMABLE FOR FIAT CURRENCY OR ANY OTHER CURRENCY THROUGH THE SERVICES. CONTINUUM DOES NOT AND CANNOT GUARANTEE THAT YOU WILL BE ABLE TO REDEEM ANY CONTINUUM NFTS FOR ANY SPECIFIC BENEFITS, FEATURES, OR PRIVILEGES AT ANY TIME. Once you redeem Continuum NFTs for certain benefits, features, or privileges, those privileges may not be returnable, exchangeable, or refundable.
3. IP RIGHTS IN THE SERVICES.
You acknowledge that we or our suppliers own all right, title, and interest, including all intellectual property rights, in and to the Services. Except for the limited access rights expressly set forth in Sections 2.1 and 2.2, you are not granted any rights with respect to the Services and there are no implied licenses granted by Continuum under this Agreement.
We welcome any and all feedback to help us build a better service. If you provide Continuum with any feedback or suggestions regarding the Services (“Feedback”), you acknowledge that we can freely use such Feedback in any manner. Feedback you provide is not confidential or proprietary to you. So, please do not provide Continuum any information or ideas that you consider to be confidential or proprietary.
Some areas of the Services allow users to post, publish, submit, upload, transmit, or otherwise make available on the Services (“Make Available”) content such as profile pictures or information, photos, images, music, videos, information, comments, questions, messages, works of authorship and other content or information (any such materials that a user does Make Available is referred to as “User Content”). You retain ownership of your User Content.
4.2. Responsibility for Content.
You acknowledge that all information, data, text, photographs, messages, tags, and other content or materials accessible through the Services, whether publicly posted or privately transmitted, are the sole responsibility of the party from whom such User Content originated. This means that you, and not Continuum, are entirely responsible for all User Content that you Make Available through the Services (“Your Content”).
4.3. Limited License Grant to Continuum.
You hereby grant Continuum a fully paid, royalty-free, worldwide, non-exclusive right (including any moral rights) and license to use, sublicense, distribute, reproduce, modify, adapt, and display, Your Content (in whole or in part) for the purposes of (i) providing the Services, including making Your Content available to other users in accordance with your elections on the Services; (ii) improving the Services; and (iii) and monitoring and analyzing User Content usage of the Services in order to derive and share insights based on User Content and usage of the Services for research purposes. Except with respect to Your Content, you agree that you have no right, title, or interest in or to any User Content that appears on or in the Services.
4.4. License Grant to other Users.
You also hereby grant each user of the Services a non-exclusive license to access Your Content through the Services, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Services and under this Agreement.
4.5. Deleting Your User Content.
If the features of the Services allow you to remove or delete User Content from the Services, the licenses granted by you in Your Content hereunder terminate within a commercially reasonable time after you remove or delete such User Content from the Services. Notwithstanding the foregoing, you understand and agree that Continuum may retain, but not display, distribute, or perform, server copies of User Content that have been removed or deleted provided that in certain cases the above licenses granted by you with respect to such User Content will not terminate and such User Content may continue to be used, displayed, distributed, and performed indefinitely in accordance with the functionality of the Services and the User Content.
You agree not to Make Available any User Content or take any action using the Services that: (i) may create a risk of, glorify, encourage, or threaten violence, harm, physical or mental injury, emotional distress, death, disability, disfigurement, self-harm, or any other loss or damage to you or any other person or to any animal or to any property; (ii) may discriminate against, degrade, shame, or harass, encourage, glorify, or promote violence toward any person or any groups of persons; (iii) contains or depicts sexual acts or sexually explicit or pornographic material; (iv) seeks to harm, exploit, or groom children by exposing them to inappropriate content or soliciting personally identifiable details or otherwise; (v) may constitute, contribute to, depict, or encourage, a crime, illegal activity, or a violation or infringement of any third party’s rights; (vi) solicits or seeks to obtain or discloses the personal information of any other person; (vii) you do not have the right to Make Available or to take under any law or under contractual or fiduciary relationships; (viii) deceptively impersonates another person or entity or contains information that is fraudulent or that you know is not correct and current; (ix) we deem to be otherwise unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; or (x) we deem in violation of the Acceptable Use Policy in Section 2.3.
4.7. No Obligation to Pre-Screen Content.
Continuum may, but is not obligated to pre-screen, refuse or remove any User Content for any reason, including if User Content violates the Agreement or is otherwise objectionable. Continuum has no responsibility or liability for the deletion or accuracy of any User Content. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, video, or voice communications.
4.8. Representations and Warranties.
You represent and warrant that you have all necessary right, title, interest, authorizations, and permissions to: (i) Make Available all of Your Content; and (ii) grant the rights, licenses, and permissions granted hereunder with respect to any data, content, information, or feedback, including Your Content.
5. DMCS POLICY.
It is Continuum’s policy to terminate membership privileges of any user of the Services who repeatedly infringes copyright upon prompt notification to Continuum by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information:
5.1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
5.2. a description of the copyrighted work that you claim has been infringed;
5.3. a description of the location on the Services of the material that you claim is infringing;
5.4. your address, telephone number and e-mail address;
5.5. a written 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; and
5.6. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Contact information for Continuum’s Copyright Agent for notice of claims of copyright infringement is as follows:
345 Grove Street, 2nd Floor
San Francisco, CA 94102
6. THIRD-PARTY LINKS.
The Services may contain links to third-party websites and services (“Third-Party Links”). Such Third-Party Links are not under the control of Continuum, and Continuum is not responsible for any Third-Party Links. Continuum provides access to these Third-Party Links only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links. You use all Third-Party Links 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, 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.
7. FEES AND PURCHASE TERMS.
7.1. Fees; Pricing.
All pricing and payment terms for Items are as indicated at point of sale or otherwise on the Services, and any payment obligations you incur are binding at the time of purchase. You may not substitute any other currency, whether cryptocurrency or fiat currency, for the currency in which you have contracted to pay at the time of purchase. For clarity, no fluctuation in the value of any currency, whether cryptocurrency or otherwise, shall impact or excuse your obligations with respect to any purchase. Whether or not Continuum accepts a particular currency or payment method is subject to change at any time in Continuum’s sole discretion. Continuum may add new products and services for additional fees and charges, or amend fees and charges for existing products and services, at any time in its sole discretion. Any increased fees for existing Subscriptions (as defined below) will apply solely on a forward-looking basis beginning on your next billing period.
You may be required to provide or the App Store or marketplace from which you downloaded the App (e.g. Apple App Store, Google Play store, etc., hereinafter the “App Store”) with a valid credit card, PayPal account, or other permitted payment method (“Payment Provider”) as a condition to purchase any products or services on the Services. You may also provide your payment information on the Continuum website. By providing Continuum or the App Store with your credit card number and associated payment information, you agree that Continuum or the App Store, as applicable, is authorized to immediately invoice your Account for all charges due and payable hereunder and that, except as required under applicable law, no additional notice or consent is required, including any charges in connection with any renewals of a Subscription. You agree to immediately notify the Continuum or App Store, as applicable, of any change in your billing address or other payment information. We may change the prices and billing methods for the Services on a going forward basis, either immediately upon posting on the Services or by e-mail. Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement to determine your rights and liabilities thereunder.
7.3. Payment Processor.
In certain circumstances, Continuum accepts payments of fiat currency through the Services. Payment processing in such instances will be performed by Continuum’s third-party payment processor. As of the date set forth above, Continuum uses Stripe, Inc. (“Payment Processor”) as the third party service provider for payment services (e.g., card acceptance, merchant settlement, and related services). Your use of the Service and the payment processing provided by the Payment Processor is subject to the Stripe Connected Account Agreement that includes the Stripe Services Agreement, as may be modified by the Payment Processor from time to time (collectively, the “Payment Processor Agreement”). As a condition of using the Payment Processor’s payment processing, you must provide accurate and complete information, and you authorize us to share this information with the Payment Processor and to charge your payment method for all amounts that may become due under this Agreement. All bank, credit card, or other payment information is sent directly to and stored with the Payment Processor using its security protocols. Continuum does not store your payment information on its systems and shall not have any responsibility for the safety or security of that information. Your use of the Payment Processor’s payment processing is conditioned upon your compliance with the Payment Processor Agreement, and if the Payment Processor Agreement is terminated by the Payment Processor, you may not be able to use the Services, or you may have your use of the Services suspended or terminated. In may add or change any payment processing services at any time. Such services may be subject to additional terms or conditions. Whether a particular cryptocurrency is accepted as a payment method by Continuum is subject to change at any time in Continuum’s sole discretion.
Certain products or services offered on or through the Services may be provided for a fee or other charge, including services or features for which access and use is purchased on a time limited basis (each a “Subscription”). You agree to pay all fees or charges to your Account, including fees for Subscriptions, in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The fee for a Subscription will be billed by Continuum or the App Store at the start of your Subscription or, if applicable, at the end of any free trial period, and at regular intervals in accordance with your elections at the time of purchase. The timing of billing may change at any time. Your Subscription will continue to automatically renew indefinitely, including if you terminate your Account, until your Subscription is canceled in accordance with the Agreement. After your initial Subscription period, and again after any subsequent Subscription period, your Subscription will automatically renew on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period at Continuum’s then-current price for such Subscription. You agree that your Account will be subject to this automatic renewal feature (even if you otherwise terminate your Account) unless you cancel your Subscription prior to the Renewal Commencement Date in accordance with any terms between you and the App Store. If you cancel your Subscription, such cancellation will be effective as of the end of your then-current Subscription term, and your Subscription will not be renewed thereafter. By purchasing a Subscription, you authorize Continuum or the App Store, as applicable, to charge your Payment Provider in accordance with your selected Subscription. Upon renewal of your Subscription, if Continuum or the App Store, as applicable, does not receive payment via your Payment Provider, (i) you agree to pay all amounts due on your Account upon demand and/or (ii) you agree that the App Store or Continuum may either cancel or suspend your Subscription and continue to attempt to charge your Payment Provider until payment is received.
7.5. Free Trials and Other Promotions.
Certain Subscription offerings may be available on a free trial basis (a “Free Trial”), the period of which will be communicated to you via the Services. Unless otherwise expressly set forth, your use of any such Subscription offerings will expire at the end of the Free Trial, and any further use of such offerings is prohibited unless you purchase a Subscription to such offerings. To Unless otherwise expressly stated, any free trial or other promotion that provides a registered user access to the Services must be used within the specified time of the trial.
7.6. No Refunds.
THERE ARE NO REFUNDS FOR ANY PRODUCTS OR SERVICES PURCHASED ON OR THROUGH THE SERVICES AND WE ARE NOT OBLIGATED TO PROVIDE ANY CREDITS FOR PARTIALLY USED PERIODS.
7.7. Financial Transactions with App Stores.
The payments required under Section 7.1 do not include any Sales Tax that may be due in connection with the Services provided under this Agreement. If Continuum determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, Continuum shall collect such Sales Tax in addition to the payments required under Section 7.1. If any Services, or payments for any Services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Continuum, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Continuum for any liability or expense Continuum may incur in connection with such Sales Taxes. Upon Continuum’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
7.9. Third-Party Advertising.
Continuum reserves the right to display third-party advertising and other content before, after, or in conjunction with User Content posted on the Services, and you acknowledge and agree that Continuum has no obligation to you in connection therewith (including, without limitation, any obligation to share any revenue received by Continuum in connection with such content).
You agree to indemnify and hold Continuum (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any loss, claim, or demand arising out of: (i) your use of the Services; (ii) your violation of this Agreement; (iii) your violation of applicable laws or regulations; (iv) Continuum’s use in accordance with this Agreement of any data, content, information, or feedback, including Your Content, that you Make Available to Continuum; or (v) your violation, or Your Content’s violation, of any rights of another party, including any users. We may 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 for which you may have an indemnification obligation hereunder without the prior written consent of Continuum. Continuum will use reasonable efforts to notify you of any claim, action, or proceeding for which you may have an indemnification obligation hereunder upon becoming aware of it. This provision does not require you to indemnify Continuum (or its officers, employees, or agents) for Continuum’s (or its officers’, employees’ or agents’) fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services provided hereunder. You agree that the provisions in this Section will survive any termination of your Account, the Agreement and/or your access to the Services.
9.1. Beta Features.
FROM TIME TO TIME, CONTINUUM MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT CONTINUUM’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
THERE ARE RISKS ASSOCIATED WITH USING CRYPTOCURRENCY, INCLUDING BUT NOT LIMITED TO, THE RISK OF HARDWARE, SOFTWARE AND INTERNET CONNECTIONS, THE RISK OF MALICIOUS SOFTWARE INTRODUCTION, AND THE RISK THAT THIRD PARTIES MAY OBTAIN UNAUTHORIZED ACCESS TO YOUR INFORMATION.
9.3. No Liability for Conduct of Third Parties.
YOU ACKNOWLEDGE AND AGREE THAT Continuum IS NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD Continuum LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, THIRD PARTY PLATFORMS, OR OTHER USERS AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
9.4. User Content.
10. LIMITATION OF LIABILITY
10.1. Exclusion of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL Continuum, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR LOST BUSINESS OPPORTUNITIES, REPUTATION (E.G., OFFENSIVE OR DEFAMATORY STATEMENTS), LOSS OF DATA OR CONTENT (E.G., DOWN TIME OR LOSS, USE OF, OR CHANGES TO, YOUR INFORMATION OR USER CONTENT), UNDER ANY THEORY OF LIABILITY.
10.2. Limitation on Damages.
IN NO EVENT WILL Continuum, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO Continuum HEREUNDER DURING THE 12 MONTHS PRECEDING THE EVENTS GIVING RISE TO THE CLAIM OR $100.00, WHICHEVER IS GREATER.
10.3. Basis of the Bargain.
THE LIMITATIONS OF DAMAGES SET FORTH IN THIS SECTION ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Continuum AND YOU. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF Continuum HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
11. TERM AND TERMINATION.
You and we agree that, subject to any eligibility requirements for accessing and using the Services or entering into the Agreement, the Agreement commenced on the earlier to occur of: (i) the date you first used the Services or (ii) the date you accepted the Agreement, and the Agreement will remain in full force and effect while you use the Services, unless earlier terminated in accordance with the Agreement.
11.2. Termination of Services by Continuum.
We may terminate this Agreement or your ability to access or use any or all Services at any time for any reason, with or without notice, including if timely payment cannot be charged to your Payment Provider for any reason, if you have breached any provision of the Agreement, or if Continuum is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful). If you have a Subscription and your Account is terminated by us, you must promptly cancel your Subscription in accordance with Section 7.3. Otherwise, your Subscription will remain in effect until the cancellation of your Subscription in accordance with Section 7.3 (independent of any termination of your Account or termination of this Agreement by us).
11.3. Termination of the Agreement by You.
If you want to terminate the Agreement, you must do so by (i) notifying Continuum at any time; (ii) cancelling all of your Subscriptions in accordance with Section 7.3; and (iii) closing your Account. This Agreement will remain in effect until the end of the then current term of any and all or your Subscriptions. UPON ANY APPLICABLE TERMINATION, YOUR SUBSCRIPTIONS WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 7.3.
11.4. Effect of Termination.
Termination of this Agreement, your Account, or of your access to or use of any Services may include removal of access to the Services barring of further use of such Services. Termination of this Agreement or your Account also includes disassociation or deletion of your username, your password, and all related information, files, and User Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of the Agreement, your right to use the Services will automatically terminate. Continuum will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
12. DISPUTE RESOLUTION.
Please read this Arbitration Agreement carefully. It is part of your contract with Continuum and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
12.1. Applicability of Arbitration Agreement.
All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement or the Services 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 Continuum, 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 this Agreement.
12.2. 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 Continuum should be sent to: firstname.lastname@example.org. After the Notice is received, you and Continuum may attempt to resolve the claim or dispute informally. If you and Continuum 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.
12.3. 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 this Agreement. 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 Continuum made to you prior to the initiation of arbitration, Continuum 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.
12.4. 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.
12.5. Time Limits.
If you or Continuum 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.
12.6. Authority of Arbitrator.
If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Continuum, 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 this Agreement. 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 Continuum.
12.7. 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 Continuum in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND CONTINUUM WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
12.8. 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.
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.
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.
12.11. 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.
12.12. Survival of Agreement.
This Arbitration Agreement will survive the termination of your relationship with Continuum.
12.13. Small Claims Court.
Notwithstanding the foregoing, either you or Continuum may bring an individual action in small claims court.
12.14. 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.
12.15. 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.
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 New York, New York for such purpose.
12.17. 30-Day Right to Opt Out.
You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: email@example.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Continuum Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
This Agreement is subject to occasional revision, and we reserve the right to charge fees for accessing and using the Services. If we make any substantial changes, we may require you to accept the changes in order to continue using the Services or notify you by sending you an e-mail and/or by prominently posting notice of the changes on the Services. Any changes to this Agreement will be effective upon the earliest of when you provide your acceptance of the changes, thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable), and thirty (30) calendar days following our posting of notice of the changes on the Services. The changes will be effective immediately for new users of the Services. Continued use of our Services following notice of such changes shall indicate your acknowledgement and acceptance of such changes and agreement to be bound by the terms and conditions of such changes.
The Services 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 use, export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Continuum, or any products utilizing such data, in violation of the United States export laws or regulations. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (y) 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 (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use The Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Continuum are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Continuum products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
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 1625 North Market Blvd, Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
13.4. Electronic communications.
The communications between you and Continuum use electronic means, whether you use the Services or send us emails, or whether Continuum posts notices on the Services or communicates with you via email. For contractual purposes, you: (a) consent to receive communications from Continuum in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Continuum provides to you electronically satisfy any legal requirement that such communications would satisfy if it were provided in a hardcopy writing. The foregoing does not affect your non-waivable rights.
13.5. Force Majeure.
Continuum shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, pandemics, war, terrorism, riots, zombie apocalypse, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
13.6. Governing Law and Venue.
THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
Where Continuum requires that you provide an e-mail address, you are responsible for providing Continuum with your most current e-mail address. In the event that the last e-mail address you provided to Continuum is not valid, Continuum’s dispatch of the e-mail containing such notice will constitute effective notice. You may give notice to Continuum by email via the contact information below. Such notice shall be deemed given when received by Continuum by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address or, in the case of notice by email, when such email has been transmitted to Continuum.
13.8. International Users.
The Services can be accessed from countries around the world and may contain references to services and content that are not available in your country. These references do not imply that Continuum intends to announce such services or content in your country. The Services are controlled and offered by Continuum from its facilities in the United States of America. Continuum makes no representations that the Services is appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
13.9. Entire Agreement.
This Agreement constitute the entire agreement between you and us regarding the use of the Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement 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 Continuum is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Continuum’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Continuum may freely assign this Agreement. The terms and conditions set forth in this Agreement shall be binding upon assignees.
13.10. Contact Information.
You can contact Continuum at firstname.lastname@example.org.
14. APP STORES.
With respect to any App accessed through or downloaded from the Apple App Store (an “App Store Sourced Software”), you will only use the App Store Sourced Software (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. You agree to comply with all applicable United States and foreign laws related to use of the App and the Services. You acknowledge and agree that the availability of an App and the Services are dependent on the App Store from which you received the App license. You acknowledge that this Agreement is between you and Continuum and not with the App Store. Continuum, not the App Store, is solely responsible for Services, including the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network or internet provider, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Services, including the App, if any. You agree to comply with, and your license to use the App is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Services, including the App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
14.1. App from Apple App Store.
The following also applies to any App Store Sourced Software.
(a) You acknowledge and agree that this Agreement is solely between you and Continuum, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the App Store Sourced Software or content thereof.
(b) Your use of the App Store Sourced Software must comply with the App Store Terms and Conditions.
(c) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Software.
(d) In the event of any failure of the App Store Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Continuum as provider of the software.
(e) You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the App Store Sourced Software or your possession and/or use of the App Store Sourced Software, including, but not limited to: (a) product liability claims; (b) any claim that the App Store Sourced Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to Continuum as provider of the software.
(f) You acknowledge that, in the event of any third-party claim that the App Store Sourced Software or your possession and use of that App Store Sourced Software infringes that third party’s intellectual property rights, Continuum, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
(g) You and Continuum acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement as relates to your license of the App Store Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the App Store Sourced Software against you as a third-party beneficiary thereof.