Last Updated on April 25, 2019
Carbon Club, Inc. (“Carbon Club”, “we”, “us”, or “our”), a Delaware corporation with its offices at 190 E. 7th Street, Apt C, New York, NY 10009, offers products and services that inspire your next fine jewelry purchase, connects jewelers and designers with clients, and provides a jewelry marketplace for its users.
Please be aware that these Terms include, among other things, a binding arbitration provision that requires you to submit to binding and final arbitration on an individual basis to resolve disputes, rather than jury trials or class actions. Please see Section 13 below.
Please read these Terms carefully, as they may have changed. Though your access and use of the Site, App, and Services is governed by the Terms effective at the time, please note that we may revise and update these Terms from time to time in our sole discretion. If we make material changes to these Terms, we will notify you by email or by posting a notice on the Site or App prior to the effective date of the changes. We will also indicate at the top of this page the date that revisions were last made.
These Terms are to ensure that you will use the Site, App, and Services only in the ways in which CarbonClub intends it to be used, and to make clear what uses Carbon Club will not permit or will not be responsible for.
By accessing or using the Site, App, or Services:
You acknowledge that you have read, understand, and accept these Terms and any additional documents or policies referred to in or incorporated into these Terms, whether you are participating as a guest/User or as a Member;
If these Terms have materially changed since you last access or used the Site, App, or Services, you acknowledge and agree that your continued access or use of the Site, App, or Services constitutes your acceptance of the changed Terms;
You represent and warrant that you are at least 18 years of age and have the right, authority, and capacity to enter into these Terms, either on behalf of yourself or the entity that you represent; and
You consent to receive communications from us electronically, and you agree that such electronic communications, notices, and postings satisfy any legal requirements that such communications be in writing.
Accessing the App.
We grant you permission to access and use the App or Services subject to the obligations, conditions, and restrictions set out in these Terms. It is a condition of your use of the App or Services that the information you provide is correct, current, and complete. Your use of the App or Services is at your own risk, including the risk that you may be exposed to content that is inaccurate, objectionable, or otherwise inappropriate. You are responsible for making all arrangements necessary for you to access the App or Services.
Account Registration and Account Security.
Once you have an account on the App, you are a “Member” of our App. As a Member, you are responsible for all activities that occur in connection with your account. You will treat as confidential your account access credentials and will not to disclose it to any third-party. You agree to immediately notify Carbon Club if you have any reason to believe that your account credentials have been compromised or if there is any unauthorized use of your account or password, or any other breach of security. We ask that you use particular caution when accessing your profile from a public or shared computer, or when using your account in a public space, such as a park, café, or public library, so that others are not able to view or record your access credentials or other personal information.
You may not impersonate someone else to create an account, create or use an account for anyone other than yourself, permit anyone else to use your account, or provide personal information for purposes of account registration other than your own.
In order to ensure we can protect and properly administer the App or Services and our community of users, we have the right to disable or close any user account at any time and for any reason or for no reason.
Member Specific Terms
For Customer Members: A Member who uses the Services to get inspiration for jewelry designs or purchases, requests design services from Jeweler Members, makes purchases from the Ready To Wear Marketplace, or otherwise uses the Services to browse, review, facilitate, receive, of pay for Services through the App is a “Customer Member.” If you are a Customer Member, you agree to comply with the rules and additional terms and conditions available at www.hellopietra.com or as otherwise made available to you, which are incorporated by reference into these Terms.
For Jeweler Members: A Member who uses the Services to provide design or jeweler services or products to Customer Members, promote their fine jewelry in the Ready to Wear Marketplace through the App or Designer Portal (a web-based portal for jewelers and designers), and any related activities, including but not limited to setting up a virtual store, communicating with Customer Members, facilitating payment for their services or products, and other activities is a “Jeweler Member”. If you are a Jeweler Member, you agree to comply with the additional terms and conditions mutually agreed upon in a separate agreement between you and Carbon Club.
As a Customer Members or Jeweler Members (as applicable), you agree to use the Services for all interactions with other Members on the Site or App if such interaction is initiated via the Services. For clarity, you may not use the Services for leads, to begin discussions about designs or purchases, or other activities, and then take such interaction or discussions off of the Site or App. If you violate this provision or the Prohibited Uses and Conduct listed in Section 3 below or in any additional terms or conditions, then Carbon Club reserves the right to suspend or ban you from the Site, App and Services.
Prohibited Uses and Conduct.
You may use the Site, App, or Services only for lawful purposes and in accordance with these Terms. We are under no obligation to enforce the Terms on your behalf against another user. We encourage you to let us know if you believe another User has violated the Terms or otherwise engaged in prohibited or illegal conduct.
You agree not to, and will not assist, encourage, or enable others to use the Site, App, or Services:
For any commercial purpose, except as expressly permitted under these Terms.
To solicit designs or services from a Jeweler Member (if a Customer Member) or provide designs or services to a Customer Member (if a Jeweler Member) offline and outside of the Site, App or Services if such Customer Member or Jeweler Member contact, introduction and/or relationship initiated on the Site, App or Services.
To violate any applicable national, regional, federal, state, local, or international law or regulation.
To transmit, or procure the sending of, any advertising or promotional material.
To threaten, stalk, harm, or harass others, or to promote bigotry or discrimination.
To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Site, App, or Services, or which, as determined by us, may harm Carbon Club or Users of the Site, App, or Services or expose them to liability.
To create, send, knowingly receive, display, transmit, upload, download, use, or reuse any material or Content (defined below) which:
Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable;
Promote sexually explicit material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
Infringe any patent, trademark, trade secret, copyright, or other intellectual property rights of any other person;
Be likely to deceive or confuse any person; or
Promotes or assists in any illegal activity.
Additionally, you agree not to, and will not assist, encourage, or enable others to:
Violate these Terms;
Modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or in any way exploit the Site, App, or Services or App Content (other than Your Content), except as expressly authorized by Carbon Club;
Remove or modify any copyright, trademark, or other proprietary rights notice that appears on any portion of the Site, App, or Services or on any materials printed or copied from the Site, App, or Services;
Record, process, harvest, collect, or mine information about other users;
Access, retrieve, or index any portion of the Site, App, or Services for purposes of constructing or populating a searchable database;
Reformat or frame any portion of the Site, App, or Services;
Use the Site, App, or Services in any manner that could, in Carbon Club’s sole discretion, disable, overburden, damage, or impair the Site or App or interfere with any other party’s use of the Site, App, or Services, including their ability to engage in real time activities through the Site, App, or Services;
Use any robot, spider, or other automatic device, process, or means to access the Site, App, or Services for any purpose, including to monitor or copy any of the App Content;
Use any manual process to monitor or copy any of the material on the Site, App, or Services, or for any other unauthorized purpose without Carbon Club’s prior written consent;
Use any device, software, or routine that interferes with the proper working of the Site, App, or Services;
Use the Site, App, or Services or any App Content to transmit any computer viruses, worms, defects, Trojan horses, or other items of a destructive nature (collectively, “Viruses”);
Use the Site, App, or Services to violate the security of any computer network, crack passwords or security encryption codes, disrupt or interfere with the security of, or otherwise cause harm to, the Site, App, or Services or App Content;
Remove, circumvent, disable, damage, or otherwise interfere with any security-related features of the Site, App, or Services, features that prevent or restrict the use or copying of App Content, or features that enforce limitations on the use of the Site, App, or Services;
Reverse engineer any portion of the Site, App, or Services;
Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Site, App, or Services, the server on which the Site, App, or Services is stored, or any server, computer, or database connected to the Site, App, or Services;
Attack the Site, App, or Services via a denial-of-service attack or a distributed denial-of-service attack; and
Otherwise attempt to interfere with the proper working of the Site, App, or Services.
The restrictions above only apply to the extent permissible under applicable law. However, you agree not to act contrary to them (even if permissible under applicable law) without providing 30 days’ prior written notice to us at firstname.lastname@example.org, together with any information that we may reasonably require to give us an opportunity to provide alternative remedies or otherwise accommodate you at our sole discretion.
Definitions of Types of Content.
“Content” means text, images, photos, audio, video, location data, and all other forms of data or communication.
“Your Content” means Content that you submit or transmit to, through, or in connection with the Site, App, or Services that you publicly display or displayed in your account profile.
“User Content” means Content that users submit or transmit to, through, or in connection with the App or Services.
“Carbon Club Content” means Content that we create and make available in connection with the Site, App, or Services.
“Third-Party Content” means Content that originates from parties other than Carbon Club or its users, which is made available in connection with the Site, App, or Services.
“App Content” means all of the Content that is made available in connection with the Site, App, or Services, including Your Content, User Content, Third-Party Content, and Carbon Club Content.
Responsibility for Your Content and User Content.
We are not responsible or liable to any third-party for the content or accuracy of any materials posted by you or any other User of the Site, App, or Services. You understand that when using the Site, App, or the Service, you will be exposed to Content from a variety of sources, and that Carbon Club is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Content, and that such Content is not the responsibility of Carbon Club. You understand and acknowledge that you alone are responsible for Your Content, and you, not Carbon Club, assume all risks associated with Your Content, including anyone’s reliance on its quality, accuracy, reliability, appropriateness, or any disclosure by you of information in Your Content that makes you or anyone else personally identifiable. You represent that you own or have the necessary rights, consents, and permissions to use and authorize the use of Your Content as described herein. You may not imply that Your Content is in any way sponsored or endorsed by Carbon Club. You represent and warrant that Your Content does not violate Section 3 of these Terms.
We cannot review everything that is posted to the Site, App, or Services in advance, any content or opinions uploaded, expressed, or submitted to the Site, App, or Services, and all App Content other than the Content officially provided by Carbon Club, are solely the opinions and the responsibility of the person or entity submitting them and do not necessarily reflect the opinion of Carbon Club. We do not endorse any Content submitted to the Site, App, or Services by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and we expressly disclaims any and all liability in connection with such Content.
Our Right to Use Your Content.
You hereby irrevocably grant us world-wide, perpetual, non-exclusive, royalty-free, assignable, sublicensable, transferable rights to use Your Content for any purpose. Pursuant to this grant, you agree that we may use Your Content in a number of different ways, including by publicly displaying it, reformatting it, incorporating it into advertisements and other works, creating derivative works from it, such as 3D models or renderings (which Carbon Club will own unless otherwise agreed in writing), promoting it, and distributing it. Please note that you also irrevocably grant the users of the Site, App, or Services the right to access Your Content in connection with their use of the Site, App, or Services. Finally, you irrevocably waive, and cause to be waived, against Carbon Club and its users any claims and assertions of moral right or attribution with respect to Your Content. By “use” we mean use, make, have made, sell, offer for sale, import, practice, copy, publicly perform and display, reproduce, perform, distribute, modify, translate, remove, analyze, commercialize, and prepare derivative works of Your Content. We are not and shall not be under any obligation, except as otherwise expressly set forth in these Terms or our other policies, (1) to maintain Your Content or any User Content in confidence; (2) to pay you any compensation for any User Content; (3) to credit or acknowledge you for Your Content; (4) to respond to Your Content or any User Content; or (5) to exercise any of the rights granted herein with respect to Your Content.
As between you and Carbon Club, you own Your Content, subject to the licenses granted in these Terms. We own Carbon Club Content, including proprietary rights of every kind and nature however denominated throughout the world, registered or unregistered, associated with such Carbon Club Content and the Site, App, or Services, such as patents, patent applications, copyrights, copyrightable works of expression, trademarks, service marks, trade names, rights of publicity and privacy, moral rights, know-how, trade secrets, software and database rights (“IP Rights”), any and all applications, registrations, renewals, or derivatives in connection with the foregoing IP rights, all rights to obtain, register, perfect and enforce these IP rights throughout the world, and any and all actions and rights to sue at law or in equity for any past or future infringement or other impairment of the foregoing IP rights. As such, you may not use, practice, sell, make, offer for sale, have made, import, modify, reproduce, distribute, perform, create derivative works or adaptations of, publicly display, or in any way exploit any of Carbon Club Content in whole or in part except as expressly authorized by us. Except as expressly and unambiguously provided herein, we do not grant you any express or implied rights, and all rights in and to the Site, App, or Services and Carbon Club Content are retained by us.
All company, product and services names (including Pietra), logos and all related names, logos, taglines, product and service names, designs, and slogans are trademarks of Carbon Club or its affiliates or licensors. You may not use these names without the prior written consent of Carbon Club. All other names, brands, and marks that may appear on the Site, App, or Services remain the property of their respective owners and appear here for identification purposes only.
Copyright Infringement and the Digital Millennium Copyright Act.
We respect the intellectual property rights of others, and we ask our Users to do the same. In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, in appropriate circumstances and in our sole discretion, we may withdraw Content and/or terminate the rights of any User (including Members) to use the Site, App, or Services (or any part thereof) who infringes the intellectual property rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement, or if you are aware of someone so infringing on your rights, please provide the following information to the “Copyright Agent”:
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
A description of the copyrighted work that you claim has been infringed upon.
A description of where the material that you claim is infringing is located on the Site, App, or Services.
Your address, telephone number, and email address.
A statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
A statement by you, made under penalty of perjury, that the above information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
All notices of copyright infringement claims should go to our Copyright Agent:
ATTN: Carbon Club Copyright Agent
190 E. 7th Street, Apt C
New York, NY 10009
Links to Third-Party Websites and Services.
This Site, App, or Services and User posts may contain hyperlinks to [or integrate with] third-party or other websites, applications, products or services (“Third-Party Services”). If there are Third-Party Services or other resources linked to on this Site, App, or Services, either by Carbon Club or by you, these links are provided only for the convenience of our Users. We have no control over the contents of those Third-Party Services or resources, and therefore cannot accept responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any Third-Party Services linked to the Site, App, or Services, you do so entirely at your own risk and subject to the terms and conditions of use for that Third-Party Service.
By sending us any feedback, ideas, comments, suggestions, documents, proposals, or other materials or information (“Feedback”), you agree that (i) your Feedback does not contain the confidential or proprietary information of any third party, (ii) we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (iii) we may have something similar to the Feedback already under consideration or in development, and (iv) you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback, and you irrevocably waive, and cause to be waived, against Carbon Club and its users any claims and assertions of any moral rights contained in such Feedback.
Service Level Agreements
Carbon Club Inc. serves as a marketplace that connects suppliers, manufacturers (collectively, the “Suppliers”) with Designers (sometimes referred to as “Creators”) looking to create and sell products through our Site. All services that are made available in the designer portal are made available at webtools.pietrastudio.com, or otherwise made available on or through our Site or Apps (collectively, the “Services”) act as a connecting party between suppliers and designers. The software and services allow Users to conduct their business through software. The services available to the User are built to help with operation of the Creator’s Pietra Shop and are used at-will. Carbon Club Inc. does not claim responsibility or ownership over, or intellectual property right for, the business that is created as a result of using the services offered by Carbon Club Inc. All attempts to help a designer grow their business are done in good faith. The Site reserves the right to turn off services to Creators if they choose, for example, when in violation of community guidelines or in violation of any of the terms in this document.
The software platform itself provides basic information to both suppliers and designers using the marketplace. Costs associated with production on a per piece basis (sometimes referred to as “Landed cost” or “production costs”) are always to be made known to the Creator prior to the start of sale. Each Creator takes it upon themselves to review all items and costs on their Pietra Shop prior to going live. By approving your Pietra Shop to begin selling, you are accepting the cost per piece as previously agreed upon. Any changes to the manufacturing cost will be made available to the designer immediately and by their manufacturing partner. Each Creator will be allowed to terminate their relationship with their selected supply partner at any time. All fees relating to production and sale of Creator items are accepted upon the Creator’s approval of going live. It is up to the Creator, Designer, or Seller to understand the fees associated with operating their business.
No Guarantee of Service.
Although we hope to make the Site, App, or Services available at all times in the future, there may be times when we need to disable the Site or App either temporarily or permanently. The Site, App, or Services may be modified, updated, interrupted, suspended, or discontinued at any time without notice or liability. Keep this in mind as Carbon Club will not be liable if all or any part of the Site, App, or Services is unavailable at any time, for any period of time. Also, from time to time, we may restrict access to some parts of the Site, App, or Services, or the entire Site, App, or Services, to Users, including Members. We cannot and do not make any representations or warranties with respect to the devices you use to access or use the Site, App, or Services, including with respect to device compatibility.
Disclaimer of Warranties.
CARBON CLUB HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. THE SITE AND APP, APP CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE AND APP ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NEITHER CARBON CLUB NOR ANY PERSON ASSOCIATED WITH CARBON CLUB MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SITE OR APP OR SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER CARBON CLUB NOR ANYONE ASSOCIATED WITH CARBON CLUB REPRESENTS OR WARRANTS THAT THE SITE OR APP OR SERVICES, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE OR APP OR SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR APP OR SERVICES OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SITE OR APP OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE OR APP OR SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS, CONTENT AND INTERACTIONS WITH OTHER USERS OF THE APP OR SERVICES. YOU FURTHER WAIVE AND HOLD HARMLESS CARBON CLUB FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY CARBON CLUB DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER CARBON CLUB OR LAW ENFORCEMENT AUTHORITIES.
IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE, THEN THE FOLLOWING APPLIES. FOR EXAMPLE, (1) CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THESE TERMS, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR" AND (2) NEW JERSEY RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF THE TRUTH IN CONSUMER CONTRACT, WARRANTY, AND NOTICE ACT (X) SECTIONS 15, WHICH STATES, AMONG OTHER THINGS, THAT “NO SELLERS…SHALL IN THE COURSE OF HIS BUSINESS OFFER TO ANY CONSUMER OR PROSPECTIVE CONSUMER OR ENTER INTO ANY WRITTEN CONSUMER CONTRACT OR GIVE OR DISPLAY ANY WRITTEN CONSUMER WARRANTY, NOTICE OR SIGN…WHICH INCLUDES ANY PROVISION THAT VIOLATES ANY CLEARLY ESTABLISHED LEGAL RIGHT OF A CONSUMER OR RESPONSIBILITY OF A SELLER…” AND (X) SECTION 16, WHICH STATES, AMONG OTHER THINGS, THAT “…NO CONSUMER CONTRACT, NOTICE OR SIGN SHALL STATE THAT ANY OF ITS PROVISIONS IS OR MAY BE VOID, UNENFORCEABLE OR INAPPLICABLE IN SOME JURISDICTIONS WITHOUT SPECIFYING WHICH PROVISIONS ARE OR ARE NOT VOID, UNENFORCEABLE OR INAPPLICABLE WITHIN THE STATE OF NEW JERSEY…”. YOU HEREBY WAIVE, AS APPLICABLE, THESE SECTIONS OF THE CALIFORNIA CIVIL CODE AND NEW JERSEY TRUTH IN CONSUMER CONTRACT, WARRANTY, AND NOTICE ACT. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED PROVISIONS.
Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL CARBON CLUB BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SITE OR APP OR SERVICES, WHETHER OR NOT CARBON CLUB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE OR APP OR SERVICES, ON ANY THEORY OF LIABILITY (INCLUDING CONTRACT, TORT INCLUDING NEGLIGENCE, OR HOWSOEVER OTHERWISE) ARISING OUT OF, IN CONNECTION WITH, OR RESULTING FROM THE SITE OR APP OR SERVICES.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL CARBON CLUB BE LIABLE TO YOU, (REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT, TORT INCLUDING NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE) FOR MORE THAN $1,000 AS A RESULT OF A USER’S USE OF THE SITE, APP, OR SERVICES.
THE LIMITATIONS OF THIS SECTION WILL NOT APPLY TO ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.
As a necessary condition of your use of the Site or App and Services, you agree to be responsible for the consequences flowing from your use of the Site or App or Services and any violation of these Terms. Therefore, you hereby agree to defend, indemnify, and hold harmless Carbon Club, its affiliates and licensors and their respective officers, directors, employees, contractors, agents, licensors and suppliers from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) resulting from your violation of these Terms or your use of the Site or App or Services, including, without limitation, (i) any use of the Site or App, Site or App Content, Services, and any related products, services, or materials other than as expressly authorized in these Terms or your use of any information obtained from the Site or App or Services, (ii) your violation of any term of these Terms, (iii) your violation of any third party rights, including without limitation intellectual property or privacy rights, (iv) your or your users’ violation of law, (v) your use of any services provided by third party service providers, or (vi) any breach of any of your representations and warranties.
You agree that: (i) the Site, App, and Services will be deemed solely based in New York; and (ii) the Site, App, and Services will be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than New York. These Terms will be governed by the internal substantive laws of the State of New York, without respect to its conflict of laws principles. You agree to submit to the personal jurisdiction of the federal and state courts located in New York, New York for any actions for which we retain 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 our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that New York, New York is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
Arbitration and Class Action Waiver.
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 CARBON CLUB. For any dispute with Carbon Club, you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. In the unlikely event that Carbon Club has not been able to resolve a dispute it has with you after 60 days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in New York, New York, unless you and Carbon Club agree otherwise. If you are using the Site, App, or Services for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for experts and other witnesses. If you are an individual using the Site, App, or Services for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for experts 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. Nothing in this Section shall be deemed as preventing Carbon Club 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.
Class Action and Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SITE OR APP OR SERVICES 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 AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND CARBON CLUB ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
We may close your account, suspend your ability to use certain portions of the Site, App, or Services, or ban you altogether from the Site, App, or Services for any or no reason, and without notice or liability of any kind. Any such action could prevent you from accessing your account, the Site, App, or Services, Your Content, App Content, or any other related information.
These Terms will survive any termination pursuant to this Section 14, whether by you or us, including without limitation our right to use Your Content as detailed in Section 4.
These Terms constitute the sole and entire agreement between you and Carbon Club with respect to the Site, App, or Services and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Site, App, or Services.
No waiver of these Terms by Carbon Club shall be deemed a further or continuing waiver of such term or condition or any other term or condition, and any failure of Carbon Club to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.
If any provision of these Terms is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be modified to reflect the parties’ intention or eliminated to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect.
The Terms, and any rights or obligations hereunder, are not assignable, transferable, or sublicensable by you except with Carbon Club’s prior written consent, but may be assigned or transferred by us without restriction. Any attempted assignment by you shall violate these Terms and be void.
The section titles in the Terms are for convenience only and have no legal or contractual effect.
Any questions, requests for technical support, complaints, claims or other communications relating to the Site, App, or Services should be directed to: firstname.lastname@example.org.