Terms of Use
TACKLE TERMS OF USE
These terms of use (“Agreement”) are an agreement between you and Lyra Technologies, Inc. dba Tackle (“Tackle,” “we,” or “us”) which licenses and operates the website at www.usetackle.com (the “Website”) and related mobile application (the “Application”) (collectively, the “Services”), and governs your right to access and use the Services.
Please read these Terms carefully before using or accessing our Services. By subscribing to or accessing the Services, you: (1) agree to be bound by the Agreement and any future amendments and additions to this Agreement as made available from time to time through the Website or Application; (2) represent you are of legal age in your jurisdiction of residence to form a binding contract with Tackle; and (3) represent that you have the authority to enter into this Agreement personally and on behalf of any company, organization or other legal entity on whose behalf you use the Services and to bind that entity to this Agreement. References to “you” or “Users” in this Agreement refer to all individuals and other persons who access or use the Services, including, without limitation, any companies, organizations or other legal entities that register accounts or otherwise access or use the Services through their respective employees, agents or representatives. Except as otherwise provided herein, if you do not agree to be bound by this Agreement, you may not access or use the Services.
SECTION 12 OF THIS AGREEMENT IS AN ARBITRATION AGREEMENT THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 12 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.
Subject to Section 12.14, Tackle reserves the right to modify this Agreement or its policies relating to the Services at any time, effective upon posting of an updated version of this Agreement. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes.
1. NO PROFESSIONAL ADVICE. YOU ACKNOWLEDGE AND AGREE THAT TACKLE DOES NOT PROVIDE ANY CONSTRUCTION SERVICES, ESTIMATING SERVICES, COMPLIANCE OR LEGAL ADVICE, PAYMENT PROCESSING ADVICE, TAX ADVICE OR ANY OTHER PROFESSIONAL ADVICE RELATED TO CONSTRUCTION OR CONSTRUCTION CONTRACTS. YOU ARE SOLELY RESPONSIBLE FOR THE CONTENT THAT YOU CREATE AND TACKLE DOES NOT GUARANTY OR WARRANT THAT SUCH CONTENT MEETS LEGAL REQUIREMENTS OR THE PURPOSE INTENDED. AS A SUBSCRIBER OR USER OF THIS SERVICE, YOU ARE SOLELY RESPONSIBLE FOR YOUR COMMUNICATIONS AND SERVICE GENERATED COMMUNICATIONS WITH YOUR CLIENTS AND PROSPECTIVE CLIENTS AND ANY CONTRACTS THAT YOU ENTER INTO WITH YOUR CLIENTS DURING THE COURSE OF YOUR USAGE OF THE SERVICES. THE SERVICES ARE NOT INTENDED TO BE A SUBSTITUTE FOR CONSTRUCTION SERVICES OR OTHER PROFESSIONAL SERVICES OR ADVICE RELATED TO CONSTRUCTION SERVICES.
2. TACKLE’S OBLIGATIONS.
2.1
Provision of Hosted Services. Tackle will make available to you, and as a subscriber you are authorized to use, the hosted Services during the Subscription Term.
2.2
Privacy Policy. If and to the extent applicable, Tackle will abide by its Privacy Policy regarding collection and use of personal information. Despite any representations concerning privacy, Tackle reserves the right to disclose without notice to you any information in its possession if required to do so by law or upon a good-faith belief that such action is necessary to comply with the law, to protect or defend our rights or property, or to respond to an emergency situation.
3. CUSTOMER’S USE OF SERVICES.
3.1
Registration. To access the Services as a subscriber, you must subscribe and set up an account (“Account”). When subscribing for an Account, you agree to provide only true, accurate, current and complete information requested by the registration form (the “Registration Data”) and to promptly update the Registration Data thereafter as necessary to keep it current. You represent that you are not barred from using the Services under any applicable law (including through a failure to maintain any necessary licenses, permits, approvals or qualifications for projects, including those required by the state or locale in which you will be performing contractor services for owners).
3.2
User Accounts. You are responsible for activity occurring under your Account and shall ensure that you and your users abide by all laws, treaties and regulations applicable to your use of the Services. To the extent you enable your Clients to use the Services or have limited access to certain aspects of the Services via Service communications, you agree that you shall ensure your Clients abide by all foregoing referenced applicable law, the terms of this Agreement and are notified of all terms and disclaimers herein. You agree to monitor your Account to restrict its use by any unauthorized users and agree not to share your Account or password with anyone. You shall: (i) notify Tackle promptly of any unauthorized use of any password or account or any other breach of security; (ii) notify Tackle promptly and use reasonable efforts to promptly stop any unauthorized use, copying, or distribution of the Services that is known or suspected by you and your users; (iii) restrict your account to authorized users.
3.3
Responsible Party for Content. You acknowledge that you and your Client’s content is the sole responsibility of the party from whom such content originated. Tackle is not a party to any contracts you enter through the Services. This means that you and any users associated with your Account including your Clients, and not Tackle, are entirely responsible for all information, data, and other content that you or your Clients create, post, share, transmit or otherwise make available through the Services (including Tackle content therein) and all records and data that you maintain on the Service, as applicable (“Content”). To the extent you require permission or authorization by your Clients to use their content in conjunction with the Services, you agree that you shall be responsible for obtaining all such consents. Tackle has no obligation to pre-screen any content. You use all Content at your own risk. Tackle shall have the right to remove any content that violates this Agreement or is otherwise objectionable.
3.4
Ownership of Your Content. Except for Tackle templates, formats, look and feel, and other Tackle material made available to you in your use of the Services and in all cases to the extent incorporated into your Content, Tackle does not claim ownership of any Content you make available on the Services (“Your Content”). Except with respect to Your Content, you agree that you have no right or title in or to any content that appears on or in the Services.
3.5
License to Your Content. You grant Tackle a right to copy, use, and display Your Content (in whole or in part) and create derivative works from Your Content for purposes of operating and providing the Services. You hereby grant Tackle a nonexclusive, irrevocable, perpetual, worldwide, sublicensable license to use and create derivative works of Your Content for its own business purposes, including without limitation: to improve the Services; aggregate, use, and productize pricing information and data; analyze Users’ use of the Services; conduct industry analysis; and develop new services.
3.6
Use of Logo. While you use the Services, you grant Tackle permission to use the name or logo of your company on Tackle marketing materials in any channel or medium including websites, mailers, pamphlets, and flyers.
3.7
Links to Third Party Sites/ Third Party Services. The Website and Services may contain links to other websites (“Linked Sites”). The Linked Sites are not in control of Tackle and Tackle is not responsible for the contents or privacy policies of any Linked Sites, including any link contained in a Linked Site, or any changes or updates to a Linked Site. Tackle is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Tackle of the site or any association with its operators. You agree that you and your actual prospective clients (hereinafter “Clients”) will be subject to any applicable terms of use and privacy policies of such third party sites.
3.8
Payment Processing. Tackle Services may provide information about and/or link you and your Clients to Linked Sites for optional third party provider payment processing services for you and your Clients (“Third Party Payment Processors” or “TPPPs”). You acknowledge and agree that such TPPPs (i) are not provided by Tackle, and (ii) are subject to the terms of use and privacy policy of the TPPPs. Different processing fees may apply depending on the TPPPs and the payment option selected. Processing fees may include fees assessed by the TPPPs and Tackle. Tackle assessed fees, if any, are for facilitating your use of the TPPPs via the Tackle Services and, in the discretion of the TPPPs and Tackle, subject to change without notice. You acknowledge that you and your Clients use of the Services and TPPPs is your responsibility and Tackle’s facilitation of TPPPs is subject to all disclaimers in these Terms of Use. You indemnify Tackle for any claims arising out of your or your Clients use of the TPPPs and information provided about TPPPs.
4. SUBSCRIPTION.
4.1
Tackle Service Billing and Payment of Fees. Your access and paid subscription to Tackle begins as soon as your Account is set up and your initial payment of the subscription rate set forth on the platform for subscription services is processed. You may select a monthly subscription or an annual subscription term (collectively referred to as “Subscription Term”). You shall pay your subscription fees in advance for use of the hosted Applications. All payment obligations are non-cancellable, and all amounts paid are nonrefundable except as otherwise specified in this Agreement. Tackle shall have the right to suspend access to the Services if subscription fees are more than five (5) days late after renewal of your Subscription Term.
4.2
Tackle Service Automatic Renewal. Your Subscription Term will automatically renew upon expiration of the previous Subscription Term (i.e., monthly or annually). You authorize us to store your payment method(s) and to automatically charge your payment method(s) upon renewal until you cancel or Tackle otherwise terminates the Services. We will automatically charge you the then-current rate for your paid and applicable taxes, every month upon renewal until you cancel.
4.3
Tackle Service Subscription Rate. We may change the paid subscription rate, and we will notify you of any applicable rate change with the option to cancel. Subject to applicable law, you accept the new price by continuing to use the Services after the price change takes effect. If during the term of your Paid Subscription the applicable sales tax, or any other tax or duty changes, we will adjust the tax-inclusive price for the paid subscription accordingly on your next billing date.
4.4
Third-Party Provider for Tackle Subscription Payment. Tackle currently uses Stripe, Inc. (“Stripe”) as its third-party provider for Subscription payment services (e.g., card acceptance, merchant settlement and related services). By using the Services, you agree to be bound by Stripe’s Seller Terms: https://stripe.com/ssa and Privacy Policy: https://www.stripe.com/privacy, You hereby consent and authorize Tackle and Stripe to share any information and payment instructions you provide to the extent required to complete your transactions in accordance with the Agreement, including personal, financial, credit card payment and transaction information.
5. OWNERSHIP OF AND LICENSE TO USE SERVICES.
5.1
Tackle’s Intellectual Property Rights. Tackle owns all rights, title and interest in the hosted Services. The Services are protected by copyright and other intellectual property laws throughout the world. Subject to this Agreement, Tackle grants you a limited license to use the Services solely for the purposes of estimating, documenting, and delivering construction services. Any future release, update or other addition to the Services shall be subject to this Agreement. Tackle and its service providers reserve all rights not granted in this Agreement.
5.2
Trademarks. All graphics, logos, service marks and trade names used on or in connection with the Services are the trademarks of Tackle and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners. You will not remove, alter or obscure any copyright notice, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
5.3
Feedback. You agree that your submission of any ideas, suggestions, documents, and/or proposals to Tackle (“Feedback”) is at your own risk and that Tackle has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Tackle a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re- format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights.
6. RESTRICTIONS ON USE OF THE SERVICES. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Services (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Tackle’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Services; (f) you shall not access Services or authorize others to access the Services in order to build similar or competitive products or services; (g) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services; (i) you shall not circumvent, remove, alter, deactivate, degrade, or thwart any of the protections of the Services; (j) you will not take any action that imposes or may impose (in our sole determination) an unreasonable or disproportionately large load on our technical infrastructure; and (k) you will not interfere with or attempt to interrupt the proper operation of the Services through any virus, device, information collection or transmission mechanisms, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Services through hacking, password or data mining, or any other means. Any future release, update or other addition to Services shall be subject to this Agreement. Tackle reserves all rights not granted in this Agreement. Any unauthorized use of Services terminates the licenses granted by Tackle pursuant to this Agreement. The foregoing sentence is not exclusive of any other rights or remedies that may be available to Tackle under law, equity, statute, or otherwise.
7. CONFIDENTIAL INFORMATION
7.1
Obligations. The receiving party shall not disclose or use any Confidential Information (as defined herein) of the disclosing party for any purpose outside the scope of this Agreement, except with the disclosing party's prior written permission. Confidential Information” means all confidential and proprietary information of a disclosing party or any of its Affiliates disclosed by or on behalf of such party to the receiving party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the disclosing party; (ii) was known to the receiving party without restriction prior to its disclosure by the disclosing party and without breach of any obligation owed to the disclosing party; (iii) was independently developed by the receiving party without either use of or reference to any Confidential Information or breach of any obligation owed to the disclosing party; or (iv) is received from a third party without restriction and without breach of any obligation owed to the disclosing party. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care). If the receiving party is compelled by law to disclose Confidential Information of the disclosing party, it shall provide the disclosing party with prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at disclosing party's cost, if the disclosing party wishes to contest the disclosure, and any information so disclosed shall continue to be treated as Confidential Information for all other purposes.
7.2
Remedies. Except as expressly provided in this Agreement, if the receiving party discloses or uses (or threatens to disclose or use) any Confidential Information of the disclosing party in breach of confidentiality protections hereunder, the disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
8. INDEMNIFICATION. You agree to indemnify and hold Tackle, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Tackle Party” and collectively, the “Tackle Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) your use of, or inability to use, the Services, Linked Sites, TPPPs and all other third party service providers; (b) your violation of the Agreement; (c) your violation of any rights of another party; (d) your violation of any applicable laws, rules or regulations, or (e) any claims relating to or arising from your use of the Services with your Clients. Tackle reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Tackle in asserting any available defenses. This provision does not require you to indemnify any of the Tackle Parties for any unconscionable commercial practice by such party or for such party’s 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. DISCLAIMER OF WARRANTIES AND CONDITIONS.
9.1
As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. Tackle PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.
9.2
TACKLEPARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS; (2) THE INFORMATION, CONTENT, AND DATA ON THE SERVICES ARE ACCURATE, COMPLETE, CURRENT, OR MEET YOUR COMPLIANCE OR LEGAL REQUIREMENTS; (3) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR THAT YOUR CONTENT WILL BE BACKED UP AND AVAILABLE; (4) YOUR USE OF THE SERVICES WILL RESULT IN ANY PROJECTS OR PAYMENTS; (5) ANY ERRORS IN THE SERVICES WILL BE CORRECTED; (6) YOUR USE OF THE SERVICES WILL NOT EXPOSE YOUR HARDWARE OR NETWORKS TO ADDITIONAL SECURITY RISK; OR (7) THE SERVICES WILL BE COMPATIBLE WITH YOUR DEVICES.
9.3
ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY CLAIMS AGAINST OR DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
9.4
THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. Tackle MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
9.5
No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT Tackle PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD Tackle PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, LINKED PARTIES and TPPPs, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
10. LIMITATION OF LIABILITY.
10.1
Disclaimer of Certain Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE Tackle PARTIES BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUE OR FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF DATA, PRODUCTION, OR USE, BUSINESS INTERRUPTION OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT Tackle HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2
Cap on Liability. UNDER NO CIRCUMSTANCES WILL Tackle PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO Tackle BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES; OR (C) ONE HUNDRED U.S. DOLLARS (U.S. $100.00). THE LAWS OF SOME STATES DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE LIMITATIONS SET FORTH IN THIS SUBSECTION MAY NOT APPLY TO YOU AND YOU MIGHT HAVE OTHER RIGHTS.
10.3
Basis of the Bargain. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Tackle and you.
11. TERM; TERMINATION.
11.1
Term. The Agreement commences on your Registration and acceptance of this Agreement and shall automatically renew, inclusive of any revised terms set forth herein, for your Subscription Term unless otherwise terminated as set forth herein.
11.2
Termination. Either party may terminate this Agreement immediately by providing written notice of termination to the other party. Should you terminate this Agreement, any prepaid subscriptions fees will not be refunded. Sections 5, 6, 7, 8, 10, 12, and 13 shall specifically remain in effect following termination of the Agreement.
11.3
Return of Content and Customer Data. Subscribers will have a period of 30 days after the effective date of termination of the Agreement (“Transition Period”) to download any of your Content, data or records. After the Transition Period, Tackle shall have no obligation to maintain or provide any data and may thereafter, unless legally prohibited, delete all data in its systems or otherwise in its possession or under its control. You agree that you (and your Clients as applicable) are responsible for maintaining your Content, records and data on an ongoing basis, for any data backups in order to prevent data loss, and downloading any Content upon termination of this Agreement.
12. DISPUTE RESOLUTION. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Tackle and limits the manner in which you can seek relief from us for claims or disputes arising out of this Terms of Use.
12.1
Process. In the event of any dispute between Parties arising out of or relating to this Agreement, the following sequential dispute resolution process is agreed to by the Parties:
12.2
Written notice of a claim or demand for breach, violation or some other assertion of a contractual or legal right (“Dispute”) shall be made by the claiming party to the other party in accordance with any notice requirements applicable to either party as stated in this Agreement;
12.3
No later than seven business days after receipt of written notice of a Dispute, representatives of both parties with authority to resolve the Dispute in full on behalf of their respective Party shall meet and confer with one another in a good faith effort to resolve the Dispute;
12.4
If such meeting of the authorized representatives fails to resolve the Dispute in full, the Parties shall, as a condition precedent to binding arbitration, participate in a mediation administered by the American Arbitration Association, the locale for which shall be New York, New York; and
12.5
In the event the Parties’ Dispute is not resolved through mediation, then the Parties agree to submit such Dispute, or that part of the Dispute not resolved through mediation, to binding arbitration administered by the American Arbitration Association. Mediation being a condition precedent to binding arbitration, neither party shall file a demand for arbitration with the AAA, until mediation is concluded, unless such demand must be filed to preserve claims that may otherwise expire or be barred by any legal or contractual limitations period applicable to the claim or demand. In such case, an arbitration demand may be filed in advance of mediation or its completion but only to avoid expiration or barring of legal rights or claims, and mediation or its completion shall precede the selection of arbitrators and commencement of any arbitration activities.
12.6
Applicability of Arbitration Agreement. After following the sequential dispute resolution process set forth in Section 13.1, you agree that any dispute or claim relating to or arising out of in any way to your access or use of the Application, to any products sold or distributed through the Application, Website, and Services, or to any aspect of your relationship with Tackle, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or Tackle may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).
IF YOU AGREE TO ARBITRATION WITH Tackle, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST Tackle ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST Tackle IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THE TERMS, INCLUDING THIS ARBITRATION AGREEMENT.
12.7
Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a demand requesting arbitration and describing your claim to our registered agent: United Corporate Services, Inc., 874 Walker Road, Suite C, Dover, Delaware 19904. The arbitration will be conducted by the American Arbitration Association (“AAA”), an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $75,000, not inclusive of attorneys’ fees and interest, shall be subject to AAA’s most current version of the Expedited Arbitration Rules and procedures; all other claims shall be subject to AAA’s most current version of the Commercial Arbitration Rules. If the arbitrator finds that you cannot afford to pay AAA’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from AAA, Tackle will pay them for you. In addition, Tackle will reimburse all such AAA’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. If You decline to choose where and how to have the arbitration conducted pursuant to this paragraph, the locale for the arbitration shall be New York, New York. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
12.8
Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Tackle. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties unless mutually agreed to by Tackle. 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 arbitral forum’s rules, and the Agreement (including the Arbitration 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 us.
12.9
Waiver of Jury Trial. YOU AND Tackle HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Tackle are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 13.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
12.10
Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts located in the State of New York. All other claims shall be arbitrated.
12.11
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: hello@Tacklerenovation.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 Account, 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.
12.12
Severability. Except as provided in Section 13.6, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
12.13
Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Tackle.
12.14
Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Tackle makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Tackle at the following address: Tackle, 45 Main Street, Suite 206, Brooklyn, New York 11201.
13. GENERAL PROVISIONS.
13.1
Electronic Communications. The communications between you and Tackle use electronic means, whether you visit Services or send Tackle e-mails, or whether Tackle posts notices on Services or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Tackle in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications related to these Terms that Tackle provides to you electronically satisfy any legal requirement that such communications would satisfy if they were made in writing in a physical document. The foregoing does not affect your statutory rights. By providing your phone number, you agree to receive text messages from Tackle. Message and data rates may apply. Message frequency varies.
13.2
Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Tackle’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Tackle may freely assign this Agreement; provided, however, that Tackle shall provide You with ninety (90) days’ prior notice of such assignment.
13.3
No Third Party Beneficiaries. Clients are not third party beneficiaries of this Agreement.
13.4
Force Majeure. Tackle 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, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
13.5
Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at hello@usetackle.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
13.6
Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Tackle agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in New York, New York.
13.7
Governing Law. THE AGREEMENT 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.
13.8
Notice. Where Tackle requires that you provide an e-mail address, you are responsible for providing Tackle with your most current e-mail address. In the event that the last e- mail address you provided to Tackle is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Tackle’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Tackle at the following address: Tackle, 45 Main Street, Suite 206, Brooklyn, New York 11201. Such notice shall be deemed given when received by Tackle by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
13.9
Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
13.10
Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
13.11
Export Control. 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 Tackle 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 Tackle products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
13.12
Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
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