Cybertino Terms of Service
Welcome to Cybertinolab.com, the website and online and/or mobile service of Cybertino, Inc. (“Cybertino,” “we,” or “us”). This page explains the terms by which you may use our online and/or mobile services, website, and software provided on or in connection with the service (collectively, the “Service”). By accessing or using the Service, or by clicking a button or checking a box marked “I Agree” (or something similar), you signify that you have read, understood, and agree to be bound by these Terms of Service (this “Agreement”), whether or not you are a registered user of our Service. Cybertino reserves the right to modify this Agreement and will provide notice of these changes as described below. This Agreement applies to all visitors, users, and others who access the Service (“Users”).
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION PROVISION IN SECTION 11.2 (THE “ARBITRATION AGREEMENT”) AND CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 11.3 (THE “CLASS ACTION/JURY TRIAL WAIVER”) THAT REQUIRE, UNLESS YOU OPT OUT PURSUANT TO THE INSTRUCTIONS IN SECTION 11.2, THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES BETWEEN YOU AND US, INCLUDING ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE YOU AGREED TO THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU EXPRESSLY WAIVE YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS, AS WELL AS YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTION OR PROCEEDING.
1. Our Service
Cybertino provides a platform and community-focused marketplace where fans, influencers, artists and other individuals (“Creators”) and collectors (“Collectors”) have the opportunity to interact, collaborate, create, showcase, sell, purchase, collect, exchange, list for auction, make offers, and bid on (each a “Transaction”) unique digital assets represented on non-fungible tokens (“Digital Collectibles”).
Before engaging in a Transaction or putting up your unique digital asset for showcasing, or putting in any offer to purchase a unique Digital Collectible from another user, we may ask you to download a supported electronic wallet extension, and connect and unlock your digital wallets with that extension. Once you submit an order to sell or purchase a Digital Collectible, your order is passed on to the applicable extension, which completes the transaction on your behalf.
ANY AND ALL DIGITAL COLLECTIBLES PURCHASED THROUGH A TRANSACTION, ON THE SITE OR THROUGH THE SERVICES, WILL ENTITLE THE BUYER ONLY TO A LIMITED NONSUBLICENSABLE RIGHT TO THE ASSOCIATED CONTENT. FOR THE AVOIDANCE OF DOUBT, BUYERS AND COLLECTORS MAY NOT RELICENSE OR SUBLICENSE ANY DIGITAL COLLECTIBLE OR ASSOCIATED CONTENT THEREIN.
This is a contract between you and Cybertino. You must read and agree to these terms before using the Service. If you do not agree, you may not use the Service. You may use the Service only if you can form a binding contract with Cybertino, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 18 is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service by Cybertino.
1.2 Limited License
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service as permitted by the features of the Service. Cybertino reserves all rights not expressly granted herein in the Service and the Cybertino Content (as defined below). Cybertino may terminate this license at any time for any reason or no reason.
1.3 Registered Accounts
Your account on the Service (your “Registered Account”) gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of Registered Accounts for different types of Users. If you open a Registered Account on behalf of a Cybertino, organization, or other entity, then (i) “you” includes you and that entity, and (ii) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf.
You may never use another User’s Registered Account without permission. When creating your Registered Account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your Registered Account, and you must keep your Registered Account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your Registered Account. You must notify Cybertino immediately of any breach of security or unauthorized use of your Registered Account. Cybertino will not be liable for any losses caused by any unauthorized use of your Registered Account.
By providing Cybertino your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences by following the unsubscribe instructions provided therein or as otherwise provided by Cybertino. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
1.4 Service Rules
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Cybertino servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Cybertino grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Service for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; (xii) using the Service for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates this Agreement; (xiii) engaging in wash trading or other deceptive or manipulative trading activities; (xiv) placing misleading bids or offers; (xv) engaging in behaviors that have the intention or the effect of artificially increasing metrics that Cybertino might use to sort search result; (xvi) using the Service to carry out any financial activities subject to registration or licensing, including but not limited to creating, listing, or buying securities, commodities, options, real estate, or debt instruments; (xvii) using the Service from a country sanctioned by the government of the United States; or (xviii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
Any and all Digital Collectibles, assets, listings, smart contracts, or collections that Cybertino deems inappropriate, disruptive, or illegal are prohibited. Cybertino reserves the rights to determine the appropriateness of listings on the Service and remove any listing at any time. If you create or offer an Digital Collectible, asset, listing, smart contract, or collection in violation of these policies, we will take corrective actions, as appropriate, including but not limited to removing the Digital Collectible, asset, listing, smart contract, or collection, deleting your Registered Account, and permanently withholding referral payments and revenue sharing fees.
Digital Collectibles, assets, listings, smart contracts, and collections that include metadata that violates international or United States intellectual property laws, promotes suicide or self-harm, incites hate or violence against others, degrades or doxes another individual, depicts minors in sexually suggestive situations, or is otherwise illegal in the United States are prohibited and will be removed. Digital Collectible, assets, listings, smart contracts, and collections with a primary or substantial purpose in a game or application that violates international or United States intellectual property laws, promotes suicide or self-harm, incites hate or violence against others, degrades or doxes another individual, depicts minors in sexually suggestive situations, or is otherwise illegal in the United States are prohibited on the Service and will be removed.
Digital Collectible, assets, listings, smart contracts, and collections created or used primarily or substantially for the purpose of raising funds for the known terrorist organizations listed on https://www.state.gov/foreign-terrorist-organizations/ are prohibited on the Service and will be removed.
The sale of stolen assets, assets taken without authorization, and otherwise illegally obtained assets on the Service is prohibited. If you have reason to believe that an asset listed on the Service was illegally obtained, please contact us immediately. Listing illegally obtained assets may result in your listings being cancelled, your assets being hidden, or your account being suspended.
1.5 Changes to the Service
We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
1.6 Disputes with Other Users
You are solely responsible for your interactions with other Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Cybertino shall have no liability for your interactions with other Users, or for any User’s action or inaction.
2. User Information
You are solely responsible for your use of the Service and for any User Information (as defined below) you provide, including compliance with applicable laws, rules, and regulations. You retain your rights to any such User Information you submit, post, or display using the Service. However, by submitting, posting or displaying User Information on or through the Service, you grant us a worldwide, non-exclusive, sublicensable, royalty-free license to use, copy, modify, and display any text, content, files, communications, comments, feedback, suggestions, ideas, concepts, questions, data or other content that you submit or post on or through the Service (collectively “User Information”) for our lawful business purposes, including to provide, promote, and improve the Service.
Cybertino takes no responsibility and assumes no liability for any User Information that you or any other User or third party posts, sends, or otherwise makes available over the Service. You shall be solely responsible for your User Information and the consequences of posting, publishing it, sharing it, or otherwise making it available on the Service, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Information. You understand and agree that you may be exposed to User Information that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Cybertino shall not be liable for any damages you allege to incur as a result of or relating to any User Information.
You represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for any User Information that you submit, post or display on or through the Service. You agree that such User Information will not contain material subject to copyright or other proprietary rights, unless you have necessary permission or are otherwise legally entitled to post the material and to grant Cybertino the license described above. Cybertino reserves the right to remove User Information without prior notice. Cybertino will take down works in response to formal infringement claims and will terminate a user's access to the Service if the user is determined to be a repeat infringer.
If you believe that your content has been copied in a way that constitutes copyright infringement, please report this by contacting our designated copyright agent at: firstname.lastname@example.org.
Formal infringement claims regarding content on the Service must include: (i) a written communication delivered to the agent designated above, (ii) a physical or electronic signature of someone authorized to act on behalf of the copyright owner, (iii) identification of the copyrighted work(s) allegedly infringed, (iv) identification of material claimed to be infringing, reasonably sufficient to permit Company to locate the material, (v) information reasonably sufficient to permit Company to contact the complaining party (this can be an address, phone number, email address, or other suitable method of contact), (vi) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (vii) a statement that the information in the notice is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of copyright owner.
3. Our Proprietary Rights
Unless otherwise indicated in writing by us, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music (the “Cybertino Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Cybertino and its licensors (or other Users, as applicable). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Cybertino Content. Use of the Cybertino Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
4.1 No Refunds.
We do not provide refunds for any purchases or other Transactions you might make on or through the Service – whether for Digital Collectibles or anything else. You may cancel your Registered Account at any time; however, there are no refunds for cancellation. In the event that Cybertino suspends or terminates your Registered Account or this Agreement, you understand and agree that you shall receive no refund or exchange for any Transactions, for any portion of the Service, any content or data associated with your Registered Account, or for anything else.
4.2 Payment Information; Taxes.
We currently use Stripe™ as our third party service provider for payment services (“Stripe”), and by using the Service you agree to be bound by Stripe’s Services Agreement, available at https://stripe.com/us/legal. We have no control over these payments or transactions, nor do we have the ability to reverse any payments or transactions. All information that you provide in connection with a purchase or other Transaction or monetary transaction interaction with the Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions. Cybertino is not responsible for determining the taxes that apply to any Digital Collectible or any Transaction.
In consideration of the foregoing payment services, you shall pay to Cybertino a facilitation fee calculated at rates determined by Cybertino at the time you initiate any transfer of funds from the Service. You will be informed about the facilitation fee before you initiate any transfer.
ANY TRANSACTION, PURCHASE OR SALE YOU MAKE, ACCEPT OR FACILITATE OUTSIDE OF THE SERVICE WILL BE ENTIRELY AT YOUR OWN RISK. WE DO NOT CONTROL OR ENDORSE PURCHASES OR SALES OUTSIDE OF THE SERVICE. WE EXPRESSLY DENY ANY OBLIGATION TO INDEMNIFY YOU OR HOLD YOU HARMLESS FOR ANY LOSSES YOU MAY INCUR BY TRANSACTING, OR FACILITATING TRANSACTIONS, OUTSIDE OF THE SERVICE.
WE ARE NOT A BROKER, FINANCIAL INSTITUTION, OR CREDITOR. THE SERVICE IS AN ADMINISTRATIVE PLATFORM ONLY. WE FACILITATE TRANSACTIONS BETWEEN BUYERS, COLLECTORS, SELLERS AND CREATORS BUT IS NOT A PARTY TO ANY AGREEMENT BETWEEN THEM OR BETWEEN ANY USERS.
Cybertino cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
6. Third-Party Links and Information
You agree to defend, indemnify and hold harmless Cybertino and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) User Information or any content that is submitted via your Registered Account including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
8. No Warranty
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CYBERTINO OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, CYBERTINO, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT ANY CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE, CONTENT, AND ANY DIGITAL COLLECTIBLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF THE SERVICE.
FURTHER, CYBERTINO DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT, SERVICE, OR CONTENT, INCLUDING ANY DIGITAL COLLECTIBLE, ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND CYBERTINO WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS.
CYBERTINO WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF DIGITAL COLLECTIBLES, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (I) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (II) SERVER FAILURE OR DATA LOSS; (III) CORRUPTED WALLET FILES; (IV) UNAUTHORIZED ACCESS TO APPLICATIONS; (V) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE SERVICE OR DIGITAL COLLECTIBLES.
DIGITAL COLLECTIBLES ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE FLOW NETWORK. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE DECENTRALIZED LEDGER WITHIN THE FLOW PLATFORM. WE DO NOT GUARANTEE THAT CYBERTINO OR ANY CYBERTINO PARTY CAN AFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY DIGITAL COLLECTIBLES.
Cybertino is not responsible for sustained casualties due to vulnerability or any kind of failure, abnormal behavior of software (e.g., wallet, smart contract), blockchains or any other features of the digital collectibles. Cybertino is not responsible for casualties due to late report by developers or representatives (or no report at all) of any issues with the blockchain supporting Digital Collectibles including any forks, technical node issues or any other issues having fund losses as a result. Nothing in this Agreement shall exclude or limit liability of either party for fraud, death or bodily injury caused by negligence, violation of laws, or any other activity that cannot be limited or excluded by legitimate means.
9. Assumption of Risk
You Accept and Acknowledge: The prices of blockchain assets (such as and Digital Collectibles) are extremely volatile. Fluctuations in the price of other digital assets could materially and adversely affect the Digital Collectibles, which may also be subject to significant price volatility. We cannot guarantee that any purchasers of Digital Collectibles will not lose money.
You are solely responsible for determining what, if any, taxes apply. Cybertino is not responsible for determining the taxes that apply to any Digital Collectible or any Transaction.
The Service does not store, send, or receive Digital Collectibles. This is because Digital Collectibles exist only by virtue of the ownership record maintained on its supporting blockchain. Any transfer of Digital Collectibles occurs within the supporting blockchain and not on the Service.
There are risks associated with using an internet-based currency, including but not limited to, the risk of hardware, software and internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your wallet. You accept and acknowledge that Cybertino will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using the Digital Collectibles, however caused.
A lack of use or public interest in the creation and development of distributed ecosystems could negatively impact the development of those ecosystems and related applications, and could therefore also negatively impact the potential utility or value of Digital Collectibles.
The regulatory regime governing blockchain technologies, cryptocurrencies, and tokens is uncertain, and new regulations or policies may materially adversely affect the development of the Transaction and/or the Service and the utility of Digital Collectibles.
The Service will rely on third-party platforms to perform the Transactions and associated payments for Digital Collectibles. If we are unable to maintain a good relationship with such platform providers; if the terms and conditions or pricing of such platform providers change; if we violate or cannot comply with the terms and conditions of such platforms; or if any of such platforms loses market share or falls out of favor or is unavailable for a prolonged period of time, access to and use of the Service will suffer.
There are risks associated with purchasing user generated content, including but not limited to, the risk of purchasing counterfeit assets, mislabeled assets, assets that are vulnerable to metadata decay, assets on smart contracts with bugs, and assets that may become untransferable. Cybertino reserves the right to hide collections, contracts, and assets affected by any of these issues or by other issues. Assets you purchase may become inaccessible on Cybertino. Under no circumstances shall the inability to view your assets on the Service serve as grounds for a claim against Cybertino.
10. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CYBERTINO, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SERVICE. UNDER NO CIRCUMSTANCES WILL CYBERTINO BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CYBERTINO ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER INFORMATION OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF CYBERTINO ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, THE ACCESS TO AND USE OF THE SERVICE, CONTENT, DIGITAL COLLECTIBLES, OR ANY PRODUCTS OR SERVICES PURCHASED ON THE SERVICE EXCEED $100. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF CYBERTINO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
11. Governing Law, Arbitration, and Class Action/Jury Trial Waiver
11.1 Governing Law.
This Agreement, your access to and use of the Service and the content contained therein shall be governed by and construed and enforced in accordance with the laws of the State of California (without regard to conflict of law rules or principles of the State of California, or any other jurisdiction) that would cause the application of the laws of any other jurisdiction that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts of Los Angeles County in the State of California, and the United States, respectively, sitting in the State of California.
11.2 Dispute Resolution; Arbitration.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM CYBERTINO. This Section 11.2 (the “Arbitration Agreement”) applies to and governs any dispute, controversy, or claim between you and Cybertino that arises out of or relates to, directly or indirectly: (a) this Agreement, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (b) access to or use of the Service, including receipt of any advertising or marketing communications; (c) any transactions through, by, or using the Service; or (d) any other aspect of your relationship or transactions with Cybertino, directly or indirectly, as a consumer (“Claim” or collectively, “Claims”). The Arbitration Agreement shall apply, without limitation, to all Claims that arose or were asserted before or after your agreement to this Agreement.
You can reject and opt-out of this Arbitration Agreement within 30 days of accepting this Agreement by emailing Cybertino at email@example.com with your first and last name and stating your intent to opt-out of the Arbitration Agreement. Note that opting out of this Arbitration Agreement does not affect any other part of this Agreement, including the provisions regarding controlling law or in which courts any disputes must be brought. For any Claim, you agree to first contact us at firstname.lastname@example.org and attempt to resolve the dispute with us informally. In the unlikely event that Cybertino has not been able to resolve a Claim after sixty (60) days, we each agree to resolve any Claim exclusively through binding arbitration by AAA before a single arbitrator (the “Arbitrator”), under the Expedited Procedures then in effect for AAA (the “Rules”), except as provided herein. In the event of any conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement shall control. AAA may be contacted at www.adr.org, where the Rules are also available. The arbitration will be conducted in the U.S. county where you live or California, unless you and Cybertino agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (i) AAA may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from AAA; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. You and Cybertino agree that the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether this Agreement, any provision of this Agreement, is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel. Nothing in this Section shall be deemed as: preventing Cybertino from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights; or preventing you from asserting claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances on only an individual (non-class, non-representative) basis. If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, shall be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, shall have no impact on the remaining provisions of the Arbitration Agreement, which shall remain in force, or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement. Notwithstanding the foregoing, if the Class Action/Jury Trial Waiver is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement shall be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief shall be stayed pending the outcome of any individual claims in arbitration.
11.3 Class Action/Jury Trial Waiver.
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AND CYBERTINO AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON YOUR INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT OTHER CYBERTINO USERS. YOU AND CYBERTINO FURTHER AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND CYBERTINO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO BRING, JOIN, OR PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND AS A PLAINTIFF OR CLASS MEMBER.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Cybertino without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
12.2 Notification Procedures and Changes to this Agreement.
Cybertino may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Cybertino in our sole discretion. Cybertino reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. Cybertino is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Cybertino may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change this Agreement in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to this Agreement. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to any of these terms or any future Terms of Service, do not use or access (or continue to access) the Service.
12.3 Entire Agreement/Severability.
This Agreement, together with any amendments and any additional agreements you may enter into with Cybertino in connection with the Service, shall constitute the entire agreement between you and Cybertino concerning the Service. Except as otherwise stated in Section 11.2, if any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
12.4 No Waiver.
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Cybertino’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
Please contact us at email@example.com with any questions regarding this Agreement.