ABOOMBA TERMS OF SERVICE AGREEMENT
Welcome to Aboomba!
Aboomba, Inc. (“Aboomba” or “we”) provides our website located at http://aboomba.com (the “Site”) through which Aboomba Users can access and use our proprietary platform allowing employees of retail establishments to promote and market their services, product offerings and retail establishments to Aboomba Users in their area (collectively, the “Aboomba Platform”). The Aboomba Platform includes the services provided by Aboomba therein, the Site and Aboomba’s software applications for use on mobile devices. As used herein, a “Merchant” is a third party seller or provider of goods and services. This Aboomba Terms of Service Agreement (“Agreement”) is a binding legal agreement between you and Aboomba and governs your access to and use of the Aboomba Platform whether you are Member (defined below) or are a visitor just browsing the Site (collectively, “Aboomba Users”)
Please note that these terms do not govern use of the Aboomba Platform by Merchants. If you are a Merchant please refer to the applicable agreement
BY ACCESSING OR USING THE ABOOMBA PLATFORM, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE ABOOMBA PLATFORM. If you are entering into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind such entity, in which case the terms “you” and “your” will refer to such entity.
1. Eligibility and Access
The Aboomba Platform is intended solely for persons who are 13 or older. Any access to or use of the Aboomba by anyone under 13 is expressly prohibited.
You agree to provide accurate, current and complete information to Aboomba in connection with your use of the Aboomba Platform. Aboomba reserves the right to suspend or terminate your access to the Aboomba Platform if any information provided to Aboomba in connection with your use of the Aboomba Platform proves to be inaccurate, not current or incomplete.
Please see http://aboomba.com/corp/privacy-policy.html for information and notices concerning Aboomba’s collection and use of your personal information.
3. How it Works
Via the Aboomba Platform, Merchants can create a web page featuring the products they sell (each a “Merchant Page”) through which Merchants can provide product descriptions and recommendations, advertisements regarding sales and other information about their establishments. Aboomba Users can access and review these Merchant Pages.
PLEASE NOTE THAT, AS STATED ABOVE, THE ABOOMBA PLATFORM IS INTENDED TO BE USED TO CONNECT ABOOMBA USERS AND MERCHANTS. ABOOMBA’S ROLE IS SOLELY TO FACILITATE THE AVAILABILITY OF THE ABOOMBA PLATFORM. SIMILARLY, ABOOMBA IS NOT A CONTRACTING AGENT OR REPRESENTATIVE OF ANY MERCHANTS. THE MERCHANT, NOT ABOOMBA, IS THE SELLER OF THE MERCHANT’S GOODS AND SERVICES AND IS SOLELY RESPONSIBLE FOR THEM OR THE ACCURACY OF ANY INFORMATION PROVIDED ABOUT THEM.
AS BETWEEN ABOOMBA AND THE MERCHANT, ABOOMBA IS NOT RESPONSIBLE FOR, NOR WILL ABOOMBA HAVE ANY LIABILITY WITH RESPECT TO: (I) ANY GOOD OR SERVICES OFFERED OR PROVIDED BY A MERCHANT; (II) ANY OFFERS, ADVERTISEMENTS OR OTHER CONTENT PROVIDED BY A MERCHANT IN ITS MERCHANT PAGE; OR (III) ANY THIRD PARTY CLAIMS IN CONNECTION WITH, OR ARISING OUT OF ANY MERCHANT GOODS OR SERVICES, OR YOUR USE OR POSSESSION OF THEREOF.
Aboomba is not a party to any agreements or transactions between Members and Merchants. Accordingly, and without limiting any other terms of this Agreement, Aboomba will not be responsible for any disputes between Members and Merchants, and disclaims any and all liability in this regard.
If you choose to make a purchase from a Merchant, you understand and agree that a Merchant’s policies related to product returns and refunds are solely determined by each Merchant. Accordingly, we recommend that Members review each Merchant’s return and refund policies before making any purchases.
Unless prohibited by law, you agree that any violation of any Merchant's terms and conditions may result in denial of access to or use of the applicable product, service or Merchant property or removal therefrom.
Various types of content are made available through the Aboomba Platform:
“Aboomba Content” means, the text, data, graphics, images, Aboomba trademarks and logos and other content made available through the Aboomba Platform, excluding Collective Content.
“Collective Content” means the text, data, graphics, images, photos, hypertext links and any other content a Merchant or Aboomba User uploads, transmits or submits via the Aboomba Platform, including any Merchant Content.
“Merchant Content” means any text, data, graphics, images, photos, hypertext links and any other content a Merchant uploads, transmits or submits via the Aboomba Platform or provides to Aboomba in connection with the Aboomba Platform to populate its Merchant Page or otherwise, including any product recommendations.
“Aboomba User Content” means all Content that a Aboomba User posts, submits or transmits to be made available through the Aboomba Platform.
Aboomba Content and Aboomba User Content License. Subject to your compliance with the terms and conditions of this Agreement, Aboomba grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access, view, download and print any Aboomba Content and Merchant Content solely for your personal and non-commercial purposes. Subject to your compliance with the terms and conditions of this Agreement, Aboomba grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access and view any Aboomba User Content for your personal use. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Aboomba Platform or Collective Content, except as expressly permitted in this Agreement. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Aboomba or its licensors, except for the licenses and rights expressly granted in this Agreement.
Aboomba User Content. Aboomba does not claim any ownership rights in your Aboomba User Content and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit any such Aboomba User Content. By making available any Aboomba User Content through the Aboomba Platform, you hereby grant to Aboomba a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Aboomba User Content in whole or in part, to provide the Aboomba Platform to you and in connection with Aboomba’s business including, but not limited to, through any media channels for use by our third party partners or otherwise.
You acknowledge and agree that you are solely responsible for all Aboomba User Content that you make available through the Aboomba Platform. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Aboomba User Content that you make available through the Aboomba Platform or you have all rights, licenses, consents and releases that are necessary to grant to Aboomba the rights in such Aboomba User Content, as contemplated under this Agreement; and (ii) neither the Aboomba User Content nor your posting, submission or transmittal of the Aboomba User Content or Aboomba’s use of the Aboomba User Content (or any portion thereof) on, through or by means of the Aboomba Platform will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation
5. Copyright Policy: No Infringing Use
Aboomba respects copyright law and expects its Aboomba Users to do the same. Aboomba has adopted and implemented a policy that provides for the termination in appropriate circumstances, Members or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Aboomba’s Copyright Policy at http://aboomba.com/corp/copyright-policy.html, for further information.
6. Ownership and Proprietary Rights
The Aboomba Platform and the Collective Content are protected by copyright, trademark, and other laws of the United States and foreign countries. As between Aboomba and you, all right, title, and interest, including, but not limited to, intellectual property rights, in and to the Aboomba Platform and the Collective Content, are and will remain the exclusive property of Aboomba and its licensors, even if Aboomba incorporates any Feedback into subsequent versions of the Aboomba Platform or otherwise uses such Feedback. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Aboomba Platform or Collective Content. All trademarks, service marks, logos, trade names and any other proprietary designations of Aboomba used herein are trademarks or registered trademarks of Aboomba. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
7. What Not To Do
You agree not to do any of the following:
- Post, upload, publish, submit or transmit any text, graphics, images, software, music, audio, video, information or other material that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances;
- Use, display, mirror or frame the Aboomba Platform, or any individual element within the Aboomba Platform, Aboomba’s name, any Aboomba trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Aboomba’s express written consent;
- Access, tamper with, or use non-public areas of the Aboomba Platform, Aboomba’s computer systems, or the technical delivery systems of Aboomba’s providers;
- Attempt to probe, scan, or test the vulnerability of any Aboomba system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Aboomba or any of Aboomba’s providers or any other third party (including another Aboomba User) to protect the Aboomba Platform, Site or Collective Content;
- Attempt to access or search the Aboomba Platform or Collective Content or download Collective Content from the Aboomba Platform or Site through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Aboomba or other generally available third party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing an Aboomba trademark, logo URL or product name without Aboomba’s express written consent;
- Use the Aboomba Platform or Collective Content for any commercial purpose or the benefit of any third party or in any manner not permitted by this Agreement;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Aboomba Platform or Collective Content to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Aboomba Platform or Collective Content;
- Interfere with, or attempt to interfere with, the access of any Aboomba User, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Aboomba Platform;
- Collect or store any personally identifiable information from the Aboomba Platform from other Aboomba Users of the Aboomba Platform without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
You understand and agree that Aboomba has no obligation to monitor your access to or use of the Aboomba Platform or Collective Content or to review or edit any Collective Content, but has the right to do so for the purpose of operating the Aboomba Platform, to ensure your compliance with this Agreement or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Aboomba reserves the right, at any time and without prior notice, to remove or disable access to any content including, any Collective Content, that Aboomba, it its sole discretion, considers to be objectionable for any reason, in violation of this Agreement or otherwise harmful to the Aboomba Platform.
The Aboomba Platform may contain links to third-party websites or resources, including those of Merchants. You acknowledge and agree that Aboomba is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Aboomba of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
Aboomba reserves the right, at its sole discretion, to modify, discontinue or terminate the Aboomba Platform or to modify this Agreement, at any time and without prior notice. If we modify this Agreement, we will post the modification on the Site or provide you with notice of the modification through the Aboomba Platform. We will also update the “Last Updated Date” at the top of this Agreement. By continuing to access or use the Aboomba Platform after we have posted a modification on the Site or have provided you with notice of a modification through the Aboomba Platform, 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 Aboomba Platform.
If you breach any of this Agreement, Aboomba will have the right to suspend or disable your account (as applicable) or terminate this Agreement, at its sole discretion and without prior notice to you. Aboomba reserves the right to revoke your access to and use of the Aboomba Platform or any Collective Content at any time, with or without cause. Any suspension, termination or cancellation will not affect your obligations to Aboomba under this Agreement (including, without limitation, proprietary rights and ownership, indemnification and limitation of liability), which by their sense and context are intended to survive such suspension, termination or cancellation.
If you elect to provide suggestions, ideas, comments, concepts or other feedback to us (whether written, verbal or in any other format or manner) (“Feedback”) in connection with this Agreement or your use of the Aboomba Platform you acknowledge and agree that we will have no obligation (whether of confidentiality, compensation or otherwise) with respect to such Feedback and will be free to use and exploit the same in any manner without restriction of any kind and without any need to compensate you. You acknowledge and agree that all Feedback will be the sole and exclusive property of Aboomba and you hereby assign and agree to assign all rights, title and interest you have in such Feedback to Aboomba together with all intellectual property rights therein. At Aboomba’s request and expense, you will execute documents and take such further acts as Aboomba may reasonably request to assist Aboomba to acquire, perfect and maintain its intellectual property rights and other legal protections for the Feedback.
THE ABOOMBA PLATFORM AND COLLECTIVE CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, ABOOMBA EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. ABOOMBA MAKES NO WARRANTY THAT THE ABOOMBA PLATFORM OR COLLECTIVE CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. ABOOMBA MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES RECEIVED IN CONNECTION WITH YOUR USE OF THE ABOOMBA PLATFORM, INFORMATION OR CONTENT PROVIDED BY OR OBTAINED THROUGH THE ABOOMBA PLATFORM, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OR INFORMATION OBTAINED THROUGH THE ABOOMBA PLATFORM. ABOOMBA DOES NOT GUARANTEE THAT YOU WILL BE ABLE ACCESS OR USE THE ABOOMBA PLATFORM AT THE TIMES OR LOCATIONS OF YOUR CHOOSING.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ABOOMBA OR THROUGH THE ABOOMBA PLATFORM, OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH MERCHANTS AND OTHER ABOOMBA USERS OF THE ABOOMBA PLATFORM AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE ABOOMBA PLATFORM. YOU UNDERSTAND THAT ABOOMBA DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY ABOOMBA USERS OF THE ABOOMBA PLATFORM OR THE MERCHANTS, NOR DOES ABOOMBA MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF ABOOMBA USERS OF THE ABOOMBA PLATFORM OR THE MERCHANTS. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER ABOOMBA USERS OF THE ABOOMBA PLATFORM AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE ABOOMBA PLATFORM, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
13. Indemnity and Release
You agree to release, defend, indemnify, and hold Aboomba and its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable attorney’s fees, arising out of or in any way connected with (a) your access to or use of the Aboomba Platform or Content or your violation of this Agreement; and (b) your interaction with any Merchant, including, without limitation any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise).
14. Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE ABOOMBA PLATFORM AND COLLECTIVE CONTENT REMAINS WITH YOU. UNDER NO CIRCUMSTANCES WILL ABOOMBA OR ITS SUBSIDIARIES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND/OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OF THE ABOOMBA PLATFORM OR CONTENT MADE AVAILABLE THROUGH THE ABOOMBA PLATFORM INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE ABOOMBA PLATFORM, COLLECTIVE CONTENT OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH MERCHANTS, OTHER ABOOMBA USERS, OR OTHER PERSONS OR ENTITIES WITH WHICH YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE ABOOMBA PLATFORM, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ABOOMBA HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL ABOOMBA’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE ABOOMBA PLATFORM OR COLLECTIVE CONTENT EXCEED ONE HUNDRED DOLLARS ($100). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ABOOMBA AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
15. Force Majeure
Aboomba will not be liable to you by reason of any failure or delay in the performance of its obligations hereunder on account of events beyond its reasonable control, which may include, without limitation, denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, material shortages, failure of the internet or extraordinary connectivity issues experienced by major telecommunications providers and unrelated to Aboomba infrastructure or connectivity to the internet or failure at an Aboomba co-location facility (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, Aboomba will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues, and for such further period of time that Aboomba may reasonably require to recover from the effects of such Force Majeure Event.
16. Notice; Consent to Electronic Notice
You consent to the use of (a) electronic means to complete this Agreement and to deliver any notices pursuant to this Agreement, and (b) electronic records to store information related to this Agreement or your use of the Aboomba Platform. Any notice or other communication to be given hereunder will be in writing and given (x) by Aboomba via email (in each case to the address that you provide), (y) a posting via the Aboomba Platform or (z) by you via email to support _at_ aboomba _dot_ com or to such other addresses as Aboomba may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted.
In the event that any provision in this Agreement is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent permitted by law and the remaining provisions will remain in full force and effect to the maximum extent permitted by law. The failure of a party to enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision. You may not assign or transfer this Agreement (by operation of law or otherwise) without the prior written consent of Aboomba and any prohibited assignment will be null and void. Aboomba may assign this Agreement or any rights hereunder without your consent. This Agreement will be binding upon, enforceable by and inure to the benefit of Aboomba’s successors and assigns. Notwithstanding any provision hereof, for all purposes of this Agreement each party will be independent and act independently and not as a contractor, partner, joint venture, agent, employee or employer of the other and will not bind nor attempt to bind the other to any contract. You agree that this Agreement and the rules, restrictions and policies contained herein, and Aboomba’s enforcement thereof, are not intended to confer and do not confer any rights or remedies upon any person other than you and Aboomba. This Agreement together with all policies of Aboomba referenced herein, all of which are incorporated herein by reference, constitute the entire agreement between Aboomba and you with respect to the subject matter of this Agreement.
18. Controlling Law and Jurisdiction
This Agreement and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
19. Dispute Resolution
You and Aboomba agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Aboomba Platform (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Aboomba are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Aboomba otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of this Agreement.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at http://adr.org/aaa/ShowPDF?doc=ADRSTG_004314.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. Unless you and Aboomba otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Aboomba submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Aboomba will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Aboomba will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Changes. Notwithstanding the provisions of the “Modification” section above, if Aboomba changes this “Dispute Resolution” section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you may reject any such change by sending us written notice (including by email to support _at_ aboomba _dot_ com ) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of Aboomba ’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Aboomba in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement).
20. Contacting Aboomba
If you have any questions about this Agreement, please contact Aboomba at support _at_ aboomba _dot_ com