Updated: July 11, 2023 Terms of Service
These Terms of Service (this “Agreement”) is a legal agreement between you (“you” or “your”) and Fairing, Inc. (“Fairing”) for use of the Fairing website located at https://app.fairing.co, the servers used by the App and/or website, the files stored on such servers, and all related services, and all related services, features and content offered by Fairing in connection with its surveying and consumer insights solution (collectively, the “Service(s)”) described in a mutually agreed upon ordering document and/or the online subscription process through your Shopify account (each an “Order”). Fairing and you may each be referred to as a “Party” or collectively referred to as the “Parties”.
These Terms Set Forth a Legally Binding Agreement
By using/continuing to use our Services, you acknowledge you have read and understand and agree to be bound by the Agreement, including those additional terms and conditions and policies referenced herein and/or available by hyperlink. If you do not agree to all the terms and conditions of this Agreement, then you may not access or use the Services. If this Agreement is considered an offer, acceptance is expressly limited to this Agreement.
1. The Agreement
This Agreement prevails over any of your general terms and conditions regardless of whether or when you have submitted your request for proposal, order, or such terms. Provision of Services to you does not constitute acceptance of any of your terms and conditions and does not serve to modify or amend this Agreement. In the event of any conflict between the terms of this Agreement and the terms of any Order hereunder, the terms of the Order shall govern.
2. User Account; Account Security
2.1. Account Registration. You are required to create an account in order to use the Services (“Account”), which can be done by completing the registration process in the Services. You agree that all information provided by you is accurate, full, complete, and up to date at all times. Any registration is solely for you and you may only use one single Account. You may not use the Accounts of others, or allow others to use your Account, and you are solely responsible for preventing such unauthorized use of your Account.
2.2. Consent to Receive Electronic Communications. By creating an Account, you consent to receive electronic communications from Fairing (e.g., via email).These communications may include notices about your Account (e.g., password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys, and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
2.3. Account Security. You acknowledge that you shall be held solely responsible and solely liable for anything that occurs in your Account and any activity resulting from your Account. You agree that we rely on (as applicable) the user ID and password protection format to confirm whether users accessing and using our Services are authorized to do so. You are responsible for taking all reasonable steps to ensure that no unauthorized person shall have access to your Account. It is your sole responsibility to (i) control the dissemination and use of user ID and password, and (ii) authorize, monitor, and control access to and use of your Account and password. You shall notify us immediately if you suspect or become aware that your Account is being used without authorization or of any other breach of security. We strongly recommend having a complex password, which should be kept secure at all times. You are also encouraged to change your password regularly.
If you wish to cancel and remove your Account, you may (i) send us an e-mail of your request to [email protected] or (ii) utilize the applicable functionality in the Services. Your Account will terminate within reasonable time following your request, and from that date of termination you will no longer be able to access your Account.
2.4. User is Responsible for Equipment and Software to Connect to the Services. You must provide all equipment and software necessary to connect to the Services. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
2.5. Errors, Inaccuracies and Omissions. Occasionally there may be information on the Services that contains typographical errors, inaccuracies, or omissions that may relate to the Services’ descriptions, information, materials, pricing, promotions, and offers. We reserve the right, without prior notice, to (i)correct any errors, inaccuracies, or omissions, and (ii) change or update information or cancel Orders, if any information in the Services or on any related website is inaccurate at any time (including after you have submitted an order).
We undertake no obligation to update, amend, or clarify information in the Services or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Services or on any related website, should be taken to indicate that all information in the Services or on any related website has been modified or updated.
3. Consent to Use of Information
3.2. Your Data. You acknowledge that Fairing may use any and all data or information submitted or uploaded to Fairing by you or on behalf of you, or otherwise accessed to Fairing in performance of its Services for you (collectively, “Your Data”) to provide the Services. You hereby grant to Fairing and its subcontractors, a perpetual, irrevocable, paid-up, royalty-free, worldwide, non-exclusive right and license to copy, use, display, modify, reproduce and make derivative works of Your Data during the term of this Agreement and following the termination or expiration of this Agreement. You are solely responsible for the nature, content, integrity and security (including backup and recoverability) of all of Your Data. You represent, warrant and covenant to have been effectively granted all necessary rights (subject to applicable federal and state privacy laws and regulations)by its customers, users and all affected third parties which are necessary for the foregoing license grant.
3.3. Statistical Information. We may derive and compile, either manually or automatically, anonymized and aggregated data related to the performance, operation, and use of the Services (“Statistical Information”) including by you, and use such Statistical Information for our business purposes, including for operations management, for research and development, and for sharing with relevant parties. We own the rights in and to such Statistical Information.
4. License Grant; Use Restrictions
4.1. License Grant. Subject to your compliance with this Agreement, during the length of the subscription set forth in an applicable Order (the “Subscription Term”),Fairing grants you a limited worldwide, revocable, non-exclusive, non-transferable, non-sublicensable right to use the Services solely for the purposes set forth herein. Fairing reserves all rights in and to the Services not expressly granted to you under this Agreement.
4.2. Use Restrictions. There is certain conduct which is strictly prohibited when using the Services. Except as expressly permitted in this Agreement, you(i) may not make available or use the Services for the benefit of any third party, including, but not limited to, as a service bureau; (ii) may not sell, resell, license, sublicense, transfer, distribute, make available, rent or lease the Services, or exploit the Services for any commercial purposes; (iii)may not use the Services to store or transmit any illegal, immoral, unlawful, offensive, obscene and/or unauthorized materials or interfere with or violate a third party’s rights to privacy and other rights, or harvest or collect personally identifiable information about third parties without their express consent; (iv) may not use the Services to transmit or otherwise make available any malicious code, including any virus, worm, trojan horse, time bomb, web bug, spyware, or any other computer code, file, or program; (v) may not interfere with or disrupt the integrity, performance, or operation of the Services or any part thereof; (vi) may not attempt to gain unauthorized access or by pass any measures imposed to prevent or restrict access to the Services; (vii) may not use or take any direct or indirect action that imposes or circumvents any usage limits; (viii) may not copy (except for making a reasonable number of copies for backup or archival purposes), modify, distribute, create derivative works, translate, port, reverse engineer, decompile, or disassemble any portion of the Services, or any material that is subject to our proprietary rights or use any of the foregoing to create any software or service similar to the Services;(ix) may not use any information or materials of any user or other third party appearing on or through the Services, without our prior written consent; (x)may not misrepresent or impersonate any person or provide inaccurate Account information; or (xi) use any robot, bot, spider, crawler, scraper, site search/retrieval application, proxy or other manual or automatic device, method or process to access, retrieve, index, “data mine,” or in any way reproduce or circumvent the navigational structure or presentation of the Services or its contents. Any breach of this Agreement by you, as shall be determined in our sole discretion, may result in the immediate suspension or termination of your Account.
5. Intellectual Property Rights
5.1. Intellectual Property Ownership.
(i) All content on the Services (including, for example, text, designs, graphics, logos, icons, images, audio clips, downloads, interfaces, Information, code and software, and the selection and manner of compilation and presentation) (collectively, the “Content”), is owned by Fairing, our content providers, or our licensors (as applicable), and may be protected by copyright, trademark, and other applicable laws. Fairing, our content providers, or our licensors (as applicable) retain full and complete title to and reserve all rights in the Content on the Services, including all associated intellectual property rights. Fairing neither warrants nor represents that your use of Content on the Services will not infringe rights of third parties.
(ii) You may access the Services only for your permitted use under this Agreement, and you may not modify or delete any copyright, trademark, or other proprietary notice relating to any Content you access. Your access to and use of the Services does not grant you any license or right to use any trademark, logo, or service mark displayed on the Services. You agree not to display or use in any manner the Fairing marks without Fairing's advance written permission.
(iii) All software used in connection with the Services is the property of Fairing or our licensors and protected by United States and international copyright laws, and subject to separate license terms, in which case those license terms will govern such software. You agree not to reproduce, duplicate, copy, sell, resell, or exploit any portion of the Services, use of the Services or access to the Services, or any contact on the Services through which the Services are provided, without express written permission by us.
(iv) All rights not expressly granted herein are reserved by Fairing, our affiliates, and licensors. You agree to abide by all additional restrictions displayed on the Services, and as they may be updated from time to time.
5.2. Feedback. By sending us any feedback, comments, questions, ideas, proposals, or suggestions concerning Fairing or the Services whether online, by email, by postal mail, or otherwise (collectively, “Feedback”), you represent and warrant (i) that you have the right to disclose the Feedback, (ii) that the Feedback does not violate the rights of any other person or entity, including, but not limited to, intellectual property rights, such as infringing a copyright, trademark, or patent; violating a right of privacy, attribution or withdrawal; or otherwise misappropriating a trade secret, and (iii) that your Feedback does not contain the confidential or proprietary information of any third party or parties. By sending us any Feedback, you further (a) agree that we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (b) acknowledge that we may have something similar to the Feedback already under consideration or in development, and (c) grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license, under all intellectual property rights, to use, make, have made, incorporate into the Services, modify, copy, display, perform, distribute, prepare derivative works, publish, distribute, and sublicense the Feedback, without any credit or compensation to you. This Feedback section shall survive any termination of your Account or any aspect of the Services.
6. Third Party Services and Websites
Certain information, content, products, and services available via the Services may include materials from third-parties or provide you with access to third-party tools, products, and resources over which we neither monitor nor have any control nor input. Further, third-party links on the Services may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy of any third-party materials or websites, or for any other materials, products, or services of third parties. The views expressed in third-party materials, websites, resources, products, or services are those of such third-party, and do not necessarily reflect our views.
You acknowledge and agree that we provide access to such materials, products, websites, tools, and resources “as is” and “as available” without any warranties, representations, or conditions of any kind and without any endorsement. We do not warrant and will not have any liability or responsibility arising from or relating to third-party materials, websites, tools, products, and resources. Any use by you of third-party materials, tools ,products, services, and resources offered through the Services is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which such items are provided by the relevant third-party provider(s).
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction. You may not use third-party content without that third-party’s permission, or as otherwise allowed by law. Complaints, claims, concerns, or questions regarding third-party products or services should be directed to the applicable third-party.
7. Term; Termination
7.1. Term. The term of this Agreement shall commence on the date you first use/access our Services and shall continue until terminated by you or Fairing in accordance with this Agreement and/or the applicable Order.
7.2. Termination. Either Party may terminate this Agreement and/or the applicable Order, as of the date specified in a notice of termination, if the other Party fails to perform any of its material obligations under this Agreement and does not cure such failure within thirty(30) days following receipt of a written notice of such default. Either Party may terminate this Agreement if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Subject to Section 7.3 below, if you wish to terminate this Agreement for convenience you may do so at any time for any reason or without reason by ceasing use, deleting your Account and uninstalling the Services.
7.3. Effect of Termination. Upon the effective date of the termination of this Agreement or any Order, you will immediately cease having access to the Services, including any Services purchased during the term of an Order or were unused during the term of the Order. Once cancellation of your Account is confirmed, your information maybe deleted from the Services. We do not accept any liability for such loss. Since deletion of all information is final, please be sure that you do in fact want to cancel your Account before doing so. Termination of your Account shall not relieve you of your obligations to pay amounts accrued or owing, nor affect any legal rights or obligations which may have arisen under the Agreement prior to or at the date of termination. Without limiting the generality of the foregoing, if (i) you terminate any Services, except as specifically permitted for Fairing’s material breach, or (ii) Fairing terminates this Agreement and/or any Order due to your material breach, any and all payment obligations of you in connection with the Services shall become immediately due and payable with respect to such Services.
7.4. Account Suspension. We may terminate, limit, or suspend your access to all or any part of your Account at any time, with or without cause, or with or without notice, effective immediately, and such termination may result in the destruction of all information and data associated with your use of the Services.
8.1. Fees; Billing. To access the Services, you agree to pay usage charges and a recurring monthly/yearly subscription (as applicable) (“Subscription”) set forth in an Order. A description of features associated with Subscriptions is available via the Services. Failure to pay this Subscription will result in removal of your access to the Services. Unless otherwise set forth in the applicable Order, the usage charges for the Services will be billed in thirty (30)day intervals, and an invoice will be sent via email from Shopify (if applicable). Additionally, an invoice will appear on the account page of your Shopify admin console (if applicable). Users have fourteen (14) days to bring up and settle any issues with the billing.
8.2. Payment Processors. Fairing uses third-party providers (i.e., Shopify and Stripe) to securely store your payment card information and process your payments (“Payment Processors”). You expressly authorize us or our Payment Processors to charge you for each transaction. Our Payment Processors may ask you to supply additional information relevant to your transaction, including your credit card number, the expiration date of your credit card, and your email and postal addresses for billing and notification (such information, “Payment Information”). You will provide all Payment Information directly to our Payment Processors. You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a transaction through the Services, you authorize our Payment Processors to complete your transaction, and to charge your payment method for the transaction (plus any applicable taxes and other charges).By initiating a transaction, you agree to the pricing, payment, and billing policies applicable to such fees and charges, as posted or otherwise communicated to you. All fees and applicable taxes, if any, are payable in United States dollars. You’ll receive a confirmation email after we confirm the payment for your order. Your order is not binding on Fairing until accepted and confirmed by Fairing. All payments made are non-refundable and non-transferable except as expressly provided in this Agreement.
8.3. Transaction Cancellation; Verification. Fairing reserves the right to not processor to cancel your transaction in certain circumstances, for example, if your credit card is declined, if we suspect the request or transaction is fraudulent, or in other circumstances Fairing deems appropriate in its sole discretion. Fairing also reserves the right, in its sole discretion, to take steps to verify your identity in connection with your transaction. You may need to provide additional information to verify your identity before completing your transaction (such information is included within the definition of Payment Information). Fairing will either not charge you or refund the charges for transactions that we do not process or cancel.
8.4. Fee Disputes. If you have any concerns or objections regarding charges, you agree to raise them with us first and you agree not to cancel or reject any credit card or third-party payment processing charges unless you have made a reasonable attempt at resolving the matter directly with Fairing.
8.5. Chargebacks. We may institute a chargeback policy as we deem appropriate in the event that you or your bank does not honor a payment obligation or if our Payment Processors question our ability to collect funds from you. As part of such chargeback policy, we may in our sole discretion suspend, terminate, or otherwise limit your ability to use the Services or otherwise take any action we or our Payment Processors deem necessary.
8.6. Changes to Price Terms for Subscriptions. Fairing reserves the right to change its pricing terms for using the Services at any time, upon thirty (30) days’ notice from Fairing in advance of such changes becoming effective. Such notice may be provided at anytime by posting the changes to the Fairing website (Fairing.co), email, or the administration menu of your Shopify store via an announcement. Changes to the pricing terms will not apply retroactively and will only apply for Subscription renewals after such changed pricing terms have been communicated to you and/or the general public. If you do not agree with the changes to Fairing’s pricing, you may choose not to renew your Subscription in accordance with the section “How to Cancel Your Subscription.”
8.7. How to Cancel Your Subscription. All amounts are payable and charged at the beginning of the Subscription and, because each such Subscription renews automatically for an additional period equal in length to the expiring Subscription Term until you cancel it, at the time of each renewal until you cancel, using the Payment Information you have provided. You must cancel your monthly or yearly Subscription before it renews to avoid the billing of the fees for the next Subscription period. If you purchase your Subscription via Shopify, you can cancel the renewal of your Subscription at any time with Shopify. You will not receive a refund for the fees you already paid for your current Subscription period and you will continue to receive the Services ordered until the end of your current Subscription period.
8.8. Future Functionality. You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Fairing regarding future functionality or features.
9.1. Definition. The Parties acknowledge that, in the course of performance under this Agreement, one Party (“Disclosing Party”) may intentionally or inadvertently disclose, deliver or permit access to by the other Party (“Receiving Party”) certain data, materials, methodologies, and information (in written, oral, and/or electronic format)that a reasonable person would understand to be secret, proprietary and/or confidential given the circumstances of the disclosure (collectively “Confidential Information”).
9.2. Confidentiality Obligations. Receiving Party shall hold all Confidential Information of Disclosing Party in the strictest confidence and shall not disclose or provide such Confidential Information to any third Party without the express written consent of Disclosing Party in each instance, except that Receiving Party may disclose or provide such Confidential Information to the officers, directors, employees, subcontractors and suppliers of Receiving Party whose duties justify a need-to-know such Confidential Information; who are notified of their burden of confidentiality; and in the case of those who are not officers, directors or employees of Receiving Party, who have signed a non-disclosure agreement containing restrictions, terms and conditions that are at least as restrictive as those set forth herein. In all events Receiving Party shall use the same level of care to protect the Confidential Information of Disclosing Party as Receiving Party uses to protect Receiving Party’s own most confidential and sensitive information but not less than reasonable care. Receiving Party shall not make any use whatsoever of Confidential Information of Disclosing Party except such limited use as is required to perform Receiving Party’s obligations under this Agreement. To the limited extent reasonably necessary for such permitted use, the foregoing shall include the right to make a reasonable number of copies of such Confidential Information each of which shall be subject to this section.
9.3. Exclusions. The obligations set forth in this section shall not apply to Confidential Information which Receiving Party can demonstrate by reasonable written evidence: (i) is already, or otherwise becomes, generally known by third parties as a result of no act or omission of Receiving Party; (ii) subsequent to disclosure hereunder is lawfully received from a third Party having the right to disseminate the information and without restriction on disclosure; (iii) is generally furnished to others by Disclosing Party without restriction on disclosure; (iv) is independently developed by Receiving Party with written evidence of such independent development; or (v) is disclosed pursuant to a legal or administrative order, provided that Disclosing Party is given prior notice and a reasonable opportunity to object (with Receiving Party’s assistance) to such disclosure.
9.4. Return of Confidential Information; Ownership. Upon the written request of Disclosing Party, Receiving Party shall cease providing access, using and promptly securely destroy all copies of any Confidential Information of Disclosing Party then in Receiving Party’s possession or under Receiving Party’s control, subject to Disclosing Party’s right to the return of original copies of any of its Confidential Information. Upon the written request of Disclosing Party, Receiving Party shall confirm inwriting that Receiving Party has complied with the obligations set forth in this paragraph. Notwithstanding the foregoing, Receiving Party is not required to destroy, erase or modify any archival records that it maintains in the normal course of its business, provided that the terms of this Agreement shall survive termination and apply to such Confidential Information until it is securely destroyed. Except as expressly provided herein, nothing in this Agreement shall be construed to grant Receiving Party any right, title or interest (including any license) in or to Confidential Information of Disclosing Party.
10. Warranties; Disclaimer
10.1. Mutual Warranties. Each Party represents and warrants that: (i) it has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and each Order; (ii) the execution, delivery and performance of this Agreement and each Order (a) has been duly authorized by such Party, and (b) will not conflict with, result in a breach of or constitute a default under any other agreement to which such Party is a party or by which such Party is bound; and (iii) it is duly licensed, authorized or qualified to do business and is in good standing in every jurisdiction in which a license, authorization or qualification is required for the ownership or leasing of its assets or the transaction of business of the character transacted by it, except where the failure to be so licensed, authorized or qualified would not have a material adverse effect on such Party’s ability to fulfill its obligations under this Agreement and the Order.
10.2. Disclaimer. You expressly agree that the use of, or inability to use, the Services is at your sole risk. TO THE EXTENT PERMITTED BY APPLICABLE LAW, FAIRING AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, AND LICENSORS DISCLAIM ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
The Services are provided on an “as is” and “as available” basis. TO THE EXTENT PERMITTED BY APPLICABLE LAW, FAIRING AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE SERVICES, OR THE CONTENT OF ANY THIRD-PARTY WEBSITES OR SERVICES LINKED TO OR INTEGRATED WITH OUR SERVICES. WE DO NOT REPRESENT OR WARRANT THAT (i) YOUR USE OF OURSERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (ii) ANY ERRORS IN THE SERVICES WILL BE CORRECTED, (iii) THE QUALITY OF THE SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU WILL MEET YOUREXPECTATIONS, (iv) THE SERVICES WILL BE FREE OF ANY WORMS OR VIRUSES OR ANYCODE OF A MALICIOUS AND/ OR DESTRUCTIVE NATURE, OR (v) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
FAIRING AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY: (i) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (ii) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES OR CONSUMPTION OF ANY CONTENT; (iii) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR OF ANY PERSONAL INFORMATION OR USER DATA; (iv) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE SERVICES; (v) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE SERVICES; (vi) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULTOF THE USE OF ANY CONTENT POSTED OR SHARED THROUGH THE SERVICES; OR (vii) LOSS OR DAMAGED CAUSED BY ANOTHER USER’S VIOLATION OF THIS AGREEMENT.
11.1. Indemnification. You agree to indemnify, defend and hold Fairing and its parent, subsidiaries, affiliates, partners, officers, directors, contractors, licensors, service providers, subcontractors, suppliers, interns agents, and employees, harmless from and against any and all losses, claims, liabilities, damages, judgments, actions, proceedings, investigations (whether formal or informal), demands or expenses(including reasonable attorneys’ fees), or threats thereof, due to, arising out of or relating to (i) your breach of this Agreement or the documents incorporated by reference or hyperlink, (ii) your violation of (a) any law or regulation, or (b) the rights of a third party, or (iii) your use of the Services.
11.2. Indemnification Procedures. In the event of such a claim, suit, or action, we will attempt to provide you notice of the claim, suit, or action at the contact information we have for your Account on file (provided, that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder). Fairing 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 Fairing in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, this Agreement, or your access to the Services, including the purchase or use of any benefits through the Services.
12. Limitations of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL FAIRING AND ITS AFFILIATES, OFFICERS, DIRECTORS, AFFILIATES,AGENTS, CONTRACTORS, REPRESENTATIVES, INTERNS, SUPPLIERS, SERVICE PROVIDERS, APP PROVIDERS, OR LICENSORS BE RESPONSIBLE FOR ANY LOSS INCLUDING, WITHOUT LIMITATION, LOST PROFITS, REVENUES, OR FINANCIAL LOSSES, OR ANY INDIRECT, SPECIAL,CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING FROM THIS AGREEMENT OR THE SERVICES, OR FOR ANY DAMAGES RELATED TO THE LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE, LOSS OF GOODWILL OR LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF FAIRING HAS BEEN ADVISED OF THE POSSIBILITY OFSUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT SHALL THE MAXIMUM TOTAL LIABILITY OF FAIRING AND ITS AFFILIATES, FOR ANY CLAIMS ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE ACCESS TO AND USE OF THE SERVICES, EXCEED THE GREATER OF (1)$100 OR (2) TO THE TOTAL AMOUNT YOU PAID TO FAIRING IN FEES OVER THE SIX (6)MONTHS IMMEDIATELY PRECEDING THE CLAIM.
Some jurisdictions do not allow the exclusion of certain warranties and limitations of liability provided in this section. If you are in such a jurisdiction, some of the above limitations and disclaimers may not apply to you. To the extent we may not, as a matter of applicable law, disclaim any implied warranty or limit our liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted by applicable law.
13. Digital Millennium Copyright Act (“DMCA”)
Fairing respects the intellectual property rights of others. It is our policy to respond promptly to any claim that Content infringes the copyright or other intellectual property rights of any person. Fairing will use reasonable efforts to investigate notices of alleged infringement and will take appropriate action in accordance with the DMCA and this Agreement. If you believe that your copyrighted work is infringed by Content, please provide a written DMCA notice to Fairing at: [email protected]
13.1. Filing a DMCA “Take Down” Notification. If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a take-down notification (“Take-Down Notification”) pursuant to the DMCA by providing us with the following information in writing (see 17U.S.C. § 512 for further detail):
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works, a representative list of such works in the App;
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; **Providing URLs or other similar specific location markers in the body of your DMCA notification is the best way to help us locate content quickly**
(iv) Information reasonably sufficient to permit us to contact you (the complaining party), such as an address, telephone number, and electronic mail address at which you (the complaining party) may be contacted;
(v) A statement that you (the complaining party)have 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;
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you (the complaining party) are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
(vii) **(Optional) Provide information, if possible, sufficient to permit us to notify the user(s) who posted the content that allegedly contains infringing material.
Any person who knowingly materially misrepresents that content or an activity is infringing or that any material or activity was removed or disabled by mistake or misidentification, shall be liable to us and possibly others for any damages, including costs and attorneys’ fees incurred by us in removing or disabling access to the material or activity claimed to be infringing or in replacing the removed material or enabling access to it.
13.2. Responding to a DMCA Notice with a Counter-Notification. We will take reasonable steps to promptly inform you if your content has been taken down upon receipt of an effective Take-Down Notification. If you believe that the content that was removed or to which access was disabled is not infringing, or that you have the authorization from the copyright owner or the copyright owner’s agent or pursuant to the law, to mint and use the material, you may send us a counter notification (“Counter Notification”) containing the following information:
(i) Your physical or electronic signature;
(ii) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
(iii) A statement that you have a good faith belief that the material was removed or disabled as a result of mistake or a misidentification of the material; and
(iv) Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the U.S. district court in the state in which you reside (or the U.S. district court where our headquarters are located if your address is outside of the United States), and a statement that you will accept service of process from the person who provided notification of the alleged infringement to us.
You have ten (10) business days after receipt of a Take-Down Notification to send us an effective Counter Notification or the allegedly infringing material may not be restored.
Any person who knowingly materially misrepresents that material or activity is infringing or that any material or activity was removed or disabled by mistake or misidentification, shall be liable to us for any damages, including costs and attorneys’ fees incurred by us in removing or disabling access to the material or activity claimed to be infringing or in replacing the removed material or enabling access to it.
13.3. Whereto Send a DMCA Request. You must submit your DMCA Take-Down Notification and Counter Notifications to us by email. The subject/heading of the email shall be: Fairing Take Down Notification.
13.4. DMCA Notices Must Comply With These Requirements. Official DMCA Notices must provide all the information described above in order to be effective. If your DMCA Notice is ineffective, we may ignore it and have no obligation to remove the allegedly infringing content.
13.5. Fairing has the Right to Remove Allegedly Infringing Content. Fairing reserves the right to remove any content that allegedly infringes another person's copyright or trademark rights, thereby restricting access to or visibility of the Services. Fairing shall not be liable to you for any content that was subsequently taken down by Fairing pursuant to a valid Take-Down Notification or a determination of a user’s violation of this Agreement.
14. Dispute Resolution
14.1. Mandatory Arbitration of Disputes. We each 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 Services (collectively, “Disputes”)will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Fairing agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this Agreement, and that you and Fairing are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement.
14.2. Exceptions. As limited exceptions to Section 14.1. above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our respective intellectual property rights.
14.3. Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Agreement. The AAA Rules are available at www.adr.org or by calling1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other Party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
14.4. Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and each Party shall bear its own costs and expenses of arbitration, including legal fees.
14.5. Injunctive and Declaratory Relief. Except as provided in Section 14.2. above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either Party and may award declaratory or injunctive relief only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The Parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
14.6. Class Action Waiver. YOU AND FAIRING AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the Parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
Fairing may use a logo, trademark, service mark, trade name, or image, whether any of the foregoing are registered or unregistered, or otherwise protected or protectable under state or federal law (each a “Mark”), and you hereby provide Fairing with the necessary rights and licenses, to use your Marks (i) in connection with the obligations to perform, assist and support the Services as contemplated in this Agreement and/or an Order, and/or (ii) on the Fairing’s website, blog, or in marketing materials, including case studies and press references, to identify you as a customer of Fairing. Each party recognizes and acknowledges exclusive ownership of its respective Mark and the goodwill associated therewith.
16.2. Changes to the Services; Changes to the Agreement.
(i) Changes to the Agreement. Fairing reserves the right, at our sole discretion, to update, change, amend, modify or replace any part of this Agreement by posting updates and changes on the Services. We may elect to notify you of such changes by mail, email, posting of modified the Agreement, or some other similar manner. However, it is your responsibility to check the Services regularly for changes to this Agreement. At all times, the most current version of this Agreement will be in effect and each updated, changed, amended, modified or replacement Agreement supersedes any prior Agreement. Your continued use of or access of the Services following the posting of any changes to this Agreement constitutes acceptance of those changes.
(ii) Changes to the Services. We reserve the right to modify or upgrade the Services for any reason, without notice, at anytime, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, "Updates"). Additionally, Updates may also modify or delete in their entirety certain features and functionality. You agree that Fairing has no obligation and shall not be liable to you or to any third party to provide any Updates or to continue to provide or enable any particular features or functionality. You further agree that all Updates will be deemed part of the Services and be subject to all terms and conditions of this Agreement.
16.3. Governing Law. This Agreement and each Order and all disputes arising out of or relating to this Agreement and each Order shall be governed by, construed, and enforced in accordance with the laws of the State of New York in the United States, without regard to its conflict of laws principles. The Parties acknowledge and agree that any and all disputes will be resolved exclusively in a venue with appropriate jurisdiction in New York, New York.
16.4. Severability. In the event that any provision of this Agreement is determined to be unlawful, void, or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from this Agreement, such determination shall not affect the validity and enforceability of any other remaining provisions.
16.5. Waiver. The failure of Fairing to exercise or enforce any right or provision of this Agreement, shall not impair such right or be constituted as a waiver of any such right or remedy. Any single or partial exercise of a right or remedy by us shall not preclude further exercise or any right or remedy by us. No waiver by us shall be valid unless in writing signed by us.
16.6. Survival. Upon termination, all provisions of this Agreement, which, by their nature, should survive termination, shall survive termination, including, without limitation, confidentiality, ownership provisions, warranty disclaimers, indemnification, and limitations of liability.
16.7. Assignment. You may not assign this Agreement to any other party. We may assign this Agreement or delegate any or all of our rights and responsibilities under this Agreement to any third parties, without notice to you.
16.8. Headings. The headings used in the Agreement are included for convenience only and will not limit or otherwise affect this Agreement.
17. Contact Us
Questions about our Agreement should be sent to [email protected] or our mailing address at:Fairing Inc. dba Fairing
228 Park Avenue South
New York NY, US, 10003
Technical support is provided to all users and can be accessed by emailing our support team at [email protected].