Terms and Conditions

Last Modified: January 18, 2018

1. GENERAL INFORMATION

The Smu.sh website (the “Site”) is owned and operated by WebValue, Inc., d/b/a Smu.sh ("we", "us", or "our”). By using or accessing our Site, our social media posting scheduler, and/or any other of our products or services (collectively, the “Services”), you (“you,” “your,” or “End User”) signify your agreement to these terms and conditions (“Terms and Conditions”), including our use of your information consistent with our privacy policy located on our Site (“Privacy Policy”), (collectively, the “Agreement”). If you do not agree to these terms and conditions, including our use of your information as provided in our Privacy Policy, then you may not use the Site or otherwise gain access to or use any of our Services. This Agreement shall be abided at all times by you as it governs your conduct while using or accessing our Site and Services. You agree this Agreement may be amended by us from time to time and with or without notice to you.

MANDATORY BINDING ARBITRATION: THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION AGREEMENT IN SECTION 15, WHICH MEANS YOU AGREE TO SUBMIT ANY CLAIM YOU HAVE IN CONNECTION WITH THIS AGREEMENT, THE SITE, SOFTWARE, OR THE SERVICES TO INDIVIDUAL ARBITRATION RATHER THAN THROUGH A COURT PROCEEDING. THE ARBITRATION AGREEMENT ALSO REQUIRES THAT YOU BRING ANY CLAIM IN YOUR INDIVIDUAL CAPACITY AND NOT AS PART OF A CLASS ACTION.
AGE REQUIREMENT: IN RESPECT TO USING OR ACCESSING THIS SITE OR OUR SERVICES YOU REPRESENT THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT (ARE AT LEAST 18 YEARS OLD) AND ARE NOT A PERSON BARRED FROM RECEIVING SERVICES UNDER THE LAWS OF THE UNITED STATES OF AMERICA, OR OTHER APPLICABLE JURISDICTION. IF YOU ARE UNDER THE AGE OF 18 YEARS OLD OR DO NOT AGREE TO THIS AGREEMENT, YOU ARE PROHIBITED FROM USING THE SITE OR OUR SERVICES.

2. USING OUR SERVICES

We provide you with access to the Site and Service for social media management to post social media postings at scheduled times, subject to your compliance with this Agreement. Please read this Agreement prior to accessing or using the Site or using our Services. This Agreement governs your access to and use of the Services, and constitutes a binding legal Agreement between you and us.

YOU ACKNOWLEDGE AND AGREE THAT, BY (1) VISITING THE SITE, (2) USING OR ACCESSING THE SERVICE, (3) SUBMITTING A REGISTRATION THROUGH THE SITE, AND/OR (4) ANY OTHER CONDUCT INDICATING YOU ACCEPT THESE TERMS OF SERVICE, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT. THIS AGREEMENT SHALL BECOME EFFECTIVE ON THE DATE ANY OF THE EARLIEST ABOVE NUMBERED EVENTS OCCURS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, THEN YOU HAVE NO RIGHT TO ACCESS, OR TO USE THE SITE AND SERVICES. IF YOU ACCEPT OR AGREE TO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY TO THIS AGREEMENT AND, IN SUCH EVENT, "YOU, "YOUR", AND “END USER” WILL REFER AND APPLY TO THAT COMPANY OR OTHER LEGAL ENTITY.

NOTWITHSTANDING THE FOREGOING, YOUR ACCESS TO OUR SITE AND SERVICES IS SUBJECT TO OUR RIGHT TO TERMINATE YOUR ACCESS TO THE SITE OR SERVICES IN ITS SOLE DISCRETION, WITHOUT ANY PRIOR NOTICE OR REASON PROVIDED TO YOU FOR THE TERMINATION.

3. MODIFICATION

We reserve the right, in its sole discretion, to modify this Agreement, at any time and without prior notice to you. If we modify this Agreement, we will post the modification on the Site, which is effective immediately. You agree to review the Terms and Conditions and our Privacy Policy periodically to ensure that you are aware of any changes we make to the Terms and Conditions and/or Privacy Policy. By continuing to access or use the Site or related Services after we have posted a modification on the Site, you are indicating that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to you, your only recourse is to cease using the Site, and any related services pursuant to the terms of this Agreement.

4. PRIVACY

Our Privacy Policy explains how we treat your personal data and protect your privacy when you use our Services. Our Privacy Policy is located on the Site’s homepage and is hereby incorporated into these Terms and Conditions. By using our Services, you agree that we can use such data in accordance with our Privacy Policy.

5. REGISTERING FOR AN ACCOUNT

A. Account Creation

As a condition to accessing and using the Service, you will be required to create an account (“Account”) on the Site by following the instructions as provided on the Site. We shall have the right to deny, approve, or terminate any entity or person wishing to be a create an Account at any time in our sole discretion with or without cause. You shall provide us with accurate, complete, and updated registration information. Failure to do so may result in immediate termination or suspension of your Account. Your Account will not be valid, unless it contains all information requested by us, such as your full name, contact address, e-mail address, and any requested information at the time your Account is submitted to us. We reserve the right to suspend, deny and/or revoke access to the Site, Service, and/or Account in our sole discretion if your activities are reasonably deemed a to the integrity of the Site or Services provided by us.

B. Account Security

Any passwords used for this Site are for individual use only. You will be responsible for the security of your password(s). From time to time, we may require that you change your password. You are prohibited from using any services or facilities provided in connection with this Site to compromise security or tamper with system resources and/or Accounts. The use or distribution of tools designed for compromising security (e.g., password crackers, rootkits, Trojan horses, or network probing tools) is strictly prohibited. If you become involved in any violation any system security, we reserve the right to release your Account details to system administrators at other websites and/or the authorities in order to assist them in resolving security incidents. We reserve the right to investigate suspected violations of these Terms and Conditions and to fully cooperate with any law enforcement authorities or court order requesting or direction us to disclose the identity of anyone publishing or otherwise making available any materials that are believed to violate this Agreement.

BY ACCEPTING THIS AGREEMENT YOU WAIVE ALL RIGHTS AND AGREE TO HOLD COMPANY HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY US DURING OR AS A RESULT OF OUR INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER US OR LAW ENFORCEMENT AUTHORITIES.

C. Unauthorized Access

Account access is provided on a password-protected basis. You are solely responsible for keeping your Account password confidential and for all use of your password and Account, including any unauthorized use. If you become aware of any unauthorized use of your Account, you must notify us immediately. We will not be liable for any loss or damage arising from the unauthorized access to or use of your Account. Upon termination of this Agreement for any reason, we may disable and/or delete your Account.

6. CODE OF CONDUCT

A. Your Representations and Warranties

You represent and warrant you WILL DO ALL of the following:

i) The Submissions are created or owned by you, or you have the necessary licenses, consents, rights, and permissions to authorize us and our users of the Service to use and distribute your Submissions as necessary to perform the Services and this Agreement;

ii) Ensure that at all times during this Agreement, you fully comply with the terms and conditions and privacy policies of each approved social media platform in any you are scheduling your postings to be posted upon;

iii) For every Submission where you are receiving compensation to make the Submission, you must clearly and conspicuously disclose the financial connection between you and the advertiser, regardless if you were paid with money, prizes, free samples, etc. For example, you could use hashtags such as #advertise, #sponsorship, or #paidcampaign;

iv) Ensure that any comments or testimonials you make on any social media platform through our Services reflect ONLY your honest opinions, beliefs, findings or experience as required by the FTC Guidelines;

v) Ensure at all times you comply with all applicable local, state, or federal laws, regulations, ordinances, codes, administrative interpretations or other requirements that affect this Agreement and your performance pursuant to this Agreement; vi) Ensure at all times you comply with all trademark, trade secret, and copyright laws; and

vii) Ensure at all times you comply with all FTC Guidelines, including, but not limited to; the FTC Guidelines Concerning the Use of Endorsements and Testimonials in Advertising and .com Disclosures How to Make Effective Disclosures in Digital Advertising.

B. Prohibited Conduct

You represent and warrant you shall NOT DO ANY of the following:

i) Publish statements or other content, express or implied, on any social media platform through our Services, or to any person or entity that are defamatory, obscene, discriminatory, harassing, have an abusive purpose, objectionable, pornographic, profane, indecent, harassing, threatening, embarrassing, hateful, or otherwise inappropriate, or damage or cause risk to the reputation of our business;

ii) Use the Services for any illegal purpose or in violation of any local, state, national, or international law;

iii) Modify or otherwise create derivative works of any part of the Site, Services, or Materials;

iv) Disclose any of our confidential information, which includes, but is not limited to, trade secrets, business plans, strategies, methods and/or practices or other information that is not generally known to the public, including information about the our personnel, products, customers, financial information, marketing and pricing strategies, services or future business plans, analyses, compilations, studies, notes or other materials prepared which contain or are based on confidential information;

v) Post any false, dishonest, and/or misleading statements or claims about a product or service so as to mislead consumers. All statements and claims regarding products and services must be completely supportable by you;

iv) Alter, reverse engineer, decompile, circumvent, damage, interfere, disassemble, sell, rent, lease, sublicense, transfer, distribute, or otherwise make available, any part of the Site, Service, or Materials (as defined in Section 7 below).

vi) Upload, post, display, or transmit any content on any social media platform through our Services that you do not have the right to post, including any proprietary material of any third party protected by intellectual property laws (or by rights of privacy or publicity);

vii) Upload, post, transmit, link to, or otherwise make available on any social media platform through our Services, any material that contains computer viruses or is designed to destroy, interrupt, or limit the functionality of the Services, any computer hardware, software, or telecommunications equipment, including but not limited to, by using adware, worms, spyware, or other malicious code;

viii) Adapt, translate, modify, or create derivative works based upon the Site or Services;

ix) Impersonate or misrepresent your connection to any entity person or otherwise manipulate or forge headers, handle names, or identifiers to disguise the origin of your published postings;

x) Tamper with or otherwise gain unauthorized access to the Site or Services provided by us;

xi) Commit fraud through or on the Site or Services;

xii) Reproduce, distribute, publicly display, or publicly perform the Site or Service; or

xiii) Interfere with or circumvent any feature of the Site or Service, including any security system.

WE EXPLICITLY PROHIBIT THE ABOVE CONDUCT AND YOUR USE OF THE SITE AND SERVICES IS ENTIRELY AT YOUR OWN RISK. WE SHALL HAVE NO LIABILITY OF ANY KIND FOR SUCH CONDUCT. YOU ARE SOLELY RESPONSIBLE FOR ANY VIOLATION OF THIS SECTION 6.

7. INTELLECTUAL PROPERTY RIGHTS

The Site is owned and operated by us. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Services provided by us (the "Materials") are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Materials contained on the Site and Services are our property or our third-party licensors. All trademarks, service marks, and trade names are proprietary to us or our affiliates and/or third-party licensors. Except as expressly authorized in writing by us, you agree not to reverse engineer, alter, decompile, sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of our Materials or intellectual property, our affiliated companies, or our third-party licensors. We reserve all rights not expressly granted in this Agreement.

Any submission to the Site of ideas, comments, suggestions, questions, or data is non-proprietary and non-confidential, including, but not limited to any content in any mail, electronic or otherwise, you send to us (“Feedback”). We are free to use Feedback for any purpose whatsoever, including, but not limited to, publication, reproduction, broadcasting, and transmissions. We are free to use any Submission, and any related ideas, concepts, know-how, or techniques for any commercial or non-commercial purpose without any compensation to you.

8. SERVICE CHANGES & UPGRADES

We reserve the right in our sole discretion at any time to add additional features or functions to, or release new versions of, the Site or Services (any such new features, functions or versions, are referred to as "Upgrades"). We may make changes or upgrades that may help us better administer the Site or Services, and improve your experience. Any such Upgrade may be made automatically without notice to you. Upgrades may cause the Site or Services to come offline, which may cause your scheduled postings to be interrupted or terminated. We are not liable for any postings interrupted or terminated due to the Services being taken offline for any reason whatsoever, including, but not limited to, Upgrades. While we may make Upgrades available to you, please be aware that we have no obligations to create Upgrades.

9. SUBMISSIONS

You are solely responsible for all postings you post, or anyone who posts on your behalf, through our Services on social media platforms. You hereby grant to us a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display all content, remarks, suggestions, ideas, graphics, or other information communicated by you to the Site and/or social media websites (“Submission”), and to incorporate any Submission in other works in any form, media, or technology now known or later developed. You agree that we will not be bound to treat any Submission as confidential and may use any Submission in its business (including without limitation, for products or advertising) without incurring any liability for royalties or any other consideration of any kind, and will not incur any liability as a result of any similarities that may appear in our future operations or business. Accordingly, notwithstanding this right and license, you hereby acknowledge and agree that by merely permitting your information, content, and materials to appear on the Site and/or a social media website, we have not become and are not a publisher of such information, content, and materials and we are merely functioning as an intermediary to enable you to provide and display the Submission at a scheduled time.

You acknowledge that the we do not pre-screen any Submissions, but that we and our designees shall have the right, but not the obligation, in our sole discretion to pre-screen, refuse, remove, or delete any Submission that violates this Agreement or is otherwise objectionable as determined by us in our sole discretion. You acknowledge and agree you will take down any posting posted to a social media platform through our Services within twenty-four (24) hours upon request by us for any reason or no reason whatsoever.

10. TERMINATION

A. Termination by Smu.sh

We may modify, suspend, or terminate, any part of the Site and any Services, including your access to and use of the Site and Services, and/or cancel any of your pending registrations or posts with our Services at any time, with or without notice to you, for any reason or no reason, and without liability to you, or any third party. We reserve the right to monitor use of the Site and our Services to determine compliance with this Agreement, as well as the right to edit, refuse to post, or remove any information or materials, in whole or in part, in our sole discretion. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities.

B. Termination by You

Your only remedy with respect to any dissatisfaction with (a) the Site, and/or any Services provided in connection with the Site, (b) any term of this Agreement, or (c) any policy or practice of ours in operating the Site, is to terminate this Agreement and cease using the Site and any Services provided in connection with the Site, and to delete any scheduled future postings.

11. DISCLAIMERS; NO WARRANTIES

A. Warranty Disclaimer

YOU EXPRESSLY AGREE THAT USE OF THE SITE, SERVICE, AND MATERIALS IS AT YOUR SOLE RISK. THE SITE, SERVICES, AND MATERIALS, AND ALL OTHER CONTENT, DATA, MATERIALS AND DOCUMENTATION PROVIDED IN CONNECTION WITH THIS AGREEMENT BY US ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. WE DO NOT WARRANT THAT THE SERVICES WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, COMPLETELY SECURE OR VIRUS-FREE. NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 9, THE TERM US INCLUDES OUR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS.

B. Use At Your Own Risk

YOU AGREE AND ACKNOWLEDGE THAT YOUR USE AND ACCESS OF THE SITE, SERVICES, AND MATERIALS IS AT YOUR OWN DISCRETION AND RISK. YOU FURTHER AGREE AND ACKNOWLEDGE THAT WE SHALL NOT BE LIABLE FOR ANY THIRD PARTY CONTENT, INCLUDING, BUT NOT LIMITED TO, THE PRODUCTS AND SERVICES LINKED TO FROM ANY ADVERTISEMENTS ON THE SITE AND SERVICES. WE DISCLAIM ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO THE CONTENT MADE AVAILABLE THROUGH THE SERVICES, INCLUDING THE CONTENT PROVIDED BY YOU OR ANY THIRD PARTIES. WE ARE NOT RESPONSIBLE FOR WHAT USERS POST, TRANSMIT, OR SHARE ON OR THROUGH THE SERVICES OR ON OR THROUGH SOCIAL MEDIA PLATFORMS. WE ARE NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY THIRD-PARTY SERVICES OR SUPPORTED PLATFORMS ASSOCIATED WITH OR UTILIZED IN CONNECTION WITH THE SERVICES, INCLUDING THE FAILURE OF ANY SUCH THIRD-PARTY SERVICES OR SUPPORTED PLATFORMS OR THE REMOVAL OF YOUR ACCOUNT BY THE THIRD-PARTY OR SUPPORTED PLATFORM. WE EXPRESSLY DENY ANY RESPONSIBILITY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SITE OR SERVICES. IF YOU ARE DISSATISFIED OR HARMED BY USE OF OUR SERVICES OR ANYTHING RELATED TO US, YOU MAY CANCEL YOUR ACCOUNT AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH THE TERMINATION SECTION ABOVE, AND SUCH TERMINATION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY (AND OUR SOLE AND EXCLUSIVE LIABILITY).

12. INDEMNIFICATION

You agree to indemnify and hold us and our officers, directors, agents, affiliates, licensors and employees harmless from and against any and all claims, actions, liabilities, losses, expenses, damages, and costs (including without limitation reasonable attorneys’ fees), whether caused in whole or in part by us arising out of or relating to our active negligence, passive negligence or gross negligence, in (a) Your use or misuse of the Site and/or Service, (b) any violation by you of this Agreement, including, but not limited to, any breach of the representations, warranties, and covenants made by you herein, (c) any claims brought by third parties arising out of your Submission(s) on social media platforms through use of our Services, (d) any claims based upon or arising out of any actual or alleged fraud, dishonesty, criminal conduct, or any knowingly wrongful, malicious, or intentional acts or omissions by you or anyone acting on behalf of you, or (e) a governmental investigation or enforcement of any state or federal regulation, including but not limited to any regulation promulgated by the Federal Trade Commission. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.

13. LIMITATION OF LIABILITY

A. Limitation of Liability

UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, ACTIVE, PASSIVE OR GROSS NEGLIGENCE, WILL WE OR OUR AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES, OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THAT RESULT FROM YOUR USE OF OR YOUR INABILITY TO USE THE SERVICE, OR ANY OTHER INTERACTIONS WITH US, EVEN IF WE OR AN AUTHORIZED REPRESENTATIVE OF OURS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, OUR LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

B. Limitation of Damages

TO THE EXTENT RECOVERABLE, IN NO EVENT SHALL ANY LIABILITY OF OURS, OUR INFORMATION PROVIDERS, LICENSORS, LICENSEES, EMPLOYEES, AGENTS, CONSULTANTS OR CONTRACTORS, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, FAILURE OF DELIVERY OF MERCHANDISE OR INFORMATION, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR UNLAWFUL USE OF OUR RECORDS, WHETHER FOR BREACH OF CONTRACT, TORTUOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, SHALL NOT EXCEED AGGREGATE DAMAGES IN EXCESS OF $100.00 IN UNITED STATES CURRENCY. WE SHALL HAVE NO LIABILITY WHATSOEVER FOR LOSS OF ACCESS, WHETHER TEMPORARILY OR PERMANENTLY, TO ANY SOCIAL MEDIA ACCOUNT USED IN CONNECTION WITH OUR SERVICES.

14. ALLOCATION OF RISKS

YOU ACKNOWLEDGE AND AGREE THAT (A) THE REMEDIES, EXCLUSIONS, LIMITATIONS OF LIABILITY, AND LIMITATION OF DAMAGES HEREIN, REFLECT A REASONBLE ALLOCATION OF RISKS; (B) THAT YOU AND WE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE EXCLUSIONS, LIMITATIONS OF LIABILITY, AND ALL OTHER TERMS IN THIS AGREEMENT. YOU ACKOWLEDGE THAT THE TERMS CONTAINED IN THIS AGREEMENT ARE A FAIR ALLOCATION OF RISKS BETWEEN YOU AND US.

15. BINDING ARBITRATION

A. Dispute Resolution and Binding Arbitration

Any dispute arising from, based upon, related to or in any way connected to this Agreement and the parties to this Agreement, shall be resolved by arbitration before a single arbitrator. Arbitration shall be conducted in accordance with California Code of Civil Procedure section 1280 et. seq. The Parties agree that venue for the arbitration shall be in Los Angeles, California. The Parties unequivocally and without reservation waive any and all right object to personal and subject matter jurisdiction of California. All arbitration-related hearings and all depositions, if any, shall be conducted in Los Angeles, CA. The arbitrator shall be from the Southern California area and the arbitrator will be selected by the mutual agreement of the Parties and/or their respective counsel. If the Parties cannot agree on a single arbitrator, then each Party shall propose three (3) potential arbitrators to the Superior Court of California in Los Angeles – Northwest District (Van Nuys, Ca.) as part of a Petition to the Court that shall be filed jointly by the Parties for the purpose of resolving the sole issue of arbitrator selection. The Superior Court will select the single arbitrator from the potential arbitrators proposed by the Parties. Once selected, the Arbitrator shall be empowered to hear and resolve any and all issues related to the dispute. The Arbitrator shall issue rulings, decisions, orders, judgments and permanent injunctions, without prejudicing a party’s right to seek an injunction of any kind from a court of competent jurisdiction as applicable and appropriate. The arbitrator shall award the prevailing party all reasonable attorneys fees and actual costs. If a party to this agreement, after providing in writing 5 calendar days written notice of a request to arbitrate a dispute and said request is either ignored or rejected, then the party who files a petition or motion to compel arbitration and prevails in said motion, shall be entitled to an interim award of reasonable attorneys fees and costs incurred in demanding the arbitration and incurred in the filing, reply to an opposition and appearing at the hearing on said motion.

B. Arbitration Notice; Process

A Party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that We do not have a physical address on file for you, by electronic mail ("Notice"). Our address for Notice is: WebValue, Inc., Attention: Legal, 15445 Ventura Blvd., #318, Sherman Oaks, CA, 91403. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or us may commence an arbitration proceeding.

C. Class Actions

You specifically agree that any claim or cause of action you may have arising out of this Agreement will be brought only in your individual capacity. You agree and acknowledge that you will not be a party, class member, or representative of any class action proceedings against us. Also, an arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

D. Time Limit to File Claims

Any claim or cause of action relating to or pertaining to this Agreement must be arbitrated as set out above within one (1) year of the occurrence giving rise to the claim or cause of action. This time limitation applies to all terms and conditions set out in this Agreement. All claims or causes of action not initiated within the time restriction as set forth in this Section 15(D) are permanently barred.

16. COPYRIGHTS AND COPYRIGHT AGENT

If you believe your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have otherwise been violated, please provide a notice containing all of the following information to our Copyright Agent:

(a) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;

(b) A description of the copyrighted work that you claim has been infringed;

(c) A description of where the material that you claim is infringing is located on the Site;

(d) Your address, telephone number, and e-mail address;

(e) 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; and

(f) 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.

Our Copyright Agent for Notice of claims of copyright infringement on the Site can be reached as follows:

By E-mail: [email protected]

Policy: Our policy is to block any user of our Site or Services who are determined by us to be repeat infringers.

16. MISCELLANEOUS

A. Governing Law and Jurisdiction

This Agreement will be governed by and construed in accordance with the laws of the State of California, notwithstanding the actual state or country of residence or incorporation of the parties. Except with regard to arbitration matters, the Parties consent to the exclusive jurisdiction of the state or federal courts in Los Angeles, California for all actions arising out of or related to this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

Other than as specifically mentioned in this Agreement, any notice or other communication to be given hereunder will be in writing and will be (as elected by the Party giving such notice): (i) personally delivered; (ii) sent by prepaid overnight delivery services such as FedEx or USPS Express Mail, with delivery confirmation and/or return receipt; or (iii) by email, which is effective upon delivery confirmation. Unless otherwise provided herein, all notices will be deemed to have been duly given on the date of receipt (or if delivery is refused, the date of such refusal) if delivered personally.

B. Severability

In the event that any of the provisions of this Agreement are held by to be unenforceable by a court or arbitrator, the remaining portions of the Agreement will remain in full force and effect.

C. Assignment

This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction. Any assignment attempted to be made in violation of this Agreement shall be void.

D. Survival

Upon termination of this Agreement, any provision which, by its nature or express terms should survive, will survive such termination or expiration.

E. Independent Contractors

Nothing contained in this Agreement or your use of the Application, and/or any Services provided in connection with the Application, shall be construed to constitute either Party as a partner, joint venturer, employee, or agent of the other Party, nor shall either Party hold itself out as such. Neither Party has any right or authority to incur, assume or create, in writing or otherwise, any warranty, liability or other obligation of any kind, express or implied, in the name of or on behalf of the other Party, it being intended by both Parties that each shall remain independent contractors responsible for its own actions.

F. Export Control

The Services may be subject to export laws and regulations of the United States and other jurisdictions. You represent that you are not named on any U.S. government denied-party list, and you shall not permit third parties to access or use the Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation.

G. Waiver

The failure of us to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. Any waiver of any provision of this Agreement will be effective only if in writing and signed by us.

H. Entire Agreement

This Agreement is the complete and exclusive agreement between you and us with respect to the subject matter hereof, superseding and terminating all previous communications, representations, or agreements, whether written or oral between the parties relating to the services provided hereunder.