Terms of Service - MediaViz AI

IMAIGE TERMS OF SERVICE

Last Modified: May 2024

These Terms of Service are entered into by and between you and Imaige, Inc. (“Company,” we,” or “us” as the context may require). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, “Terms of Service,” or "Terms"), govern your access to and use of our websites, including https://imaige.com/, https://www.aices.com/, MediaViz.AI, imaigekeywording.com, any of our mobile applications, or any of our other services (collectively, the “Services” and excludes any services provided to you by the Company under a separate written agreement), including any content, functionality, APIs, and services offered on or through the Services.

Please read the Terms of Service carefully before you start to use any of the Services. By using the Services, or otherwise accessing or installing them, you accept and agree to be bound and abide by our Terms of Service, Terms of Use (“Terms of Use”), and our Privacy Policy (“Privacy Policy”), found on our Services and incorporated herein by reference. If you do not want to agree to these Terms of Service, the Terms of Use, or the Privacy Policy, you must not access or use any of the Services.

The Services are offered and available to users who are 16 years of age or older. By using the Services, you represent and warrant that: (a) you are at least 16 years old; (b) you have not previously been suspended or removed from any of the Services; and (c) your registration and your use of any of the Services is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms of Service on your behalf represents and warrants that they have authority to bind you to these Terms of Service and you agree to be bound by these Terms of Service. If you do not meet all of these requirements, you must not access or use the Services.

We may revise and update these Terms of Service from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Services thereafter. Your continued use of the Services following the posting of revised Terms of Service means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you. You should also carefully review our Privacy Policy before using or accessing the Services.

THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.

THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

1. ACCESSING THE SERVICES AND ACCOUNT SECURITY

1.1 Access to the Services

. Subject to your compliance with these Terms, you are granted a non-exclusive, limited, non-transferable, freely revocable license to access and use the Services for business or personal use. The Company reserves all rights not expressly granted under these Terms.

1.2 Availability

. We reserve the right to withdraw or amend the Services, and any service or material we provide as part of the Services in our sole discretion without notice. We will not be liable if for any reason all or any part of the Services are unavailable at any time or for any period. From time to time, we may restrict access to some parts or all of any the Services to users, including registered users. We have the right to disable any username, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Service. You are responsible for both: (a) making all arrangements necessary for you to have access to the Services; and (b) ensuring that all persons who access the Services through your internet connection are aware of these Terms of Service and comply with them.

1.3 Account Registration

. To access the Services, or to access the resources offered, you may be asked to provide certain registration details or other information. It is a condition of your use of the Services that all the information you provide in connection with any of the Services is correct, current, and complete. You agree that all information you provide to register with the Services, purchase products or services, or otherwise, including, but not limited to, through the use of any interactive features on any of the Services, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

1.4 Credentials

. If you choose, or are provided with, a username, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Services or portions of them using your username, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

1.5 Restrictions on Use

. You shall not yourself or through any third party (a) rent, lease, sell, distribute, offer in a service bureau, sublicense, or otherwise make available the Services to any third party (except as permitted under these Terms); (b) copy, replicate, decompile, reverse-engineer, attempt to derive the source code of, modify, or create derivative works of the Service, or any part thereof; (c) access the Services for purposes of performance benchmarking; (d) access the Service for purposes of building or marketing a competitive product; (e) use the Service to store or transmit a virus or malicious code; (f) use a virtual private network (VPN) to circumvent geographic-based pricing or content access; (g) use the Services to transmit unsolicited emails or engage in spamming; (h) use any form of data mining, extraction, or scraping on the Service and/or the contents available therein for machine learning or other purposes; or (i) bypass the measures we may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Services.

2. FEES AND TERMINATION

2.1 Fees

. Some of our Services may only be accessed and used after payment of the applicable fees for your selected Services package, as indicated at the time you sign up for the Services (the “Fees”). All prices, discounts, and promotions posted are subject to change without notice. We strive to display accurate price information, however, we may, on occasion, make inadvertent typographical errors, inaccuracies, or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.

2.2 Taxes

. You are responsible for any taxes other than the Company’s income tax. Fees and expenses are exclusive of taxes, levies, or duties. If the Company has the legal obligation to pay or collect taxes for which you are responsible under this section, the Company will invoice you, and you will pay that amount unless you provide the Company with a valid tax exemption certificate authorized by the appropriate taxing authority.

2.3 Subscriptions and Renewals

. Some of our Services may be offered on a subscription basis. If you are subscribing to our Services, your subscription will begin on the date that you register for such Services and will automatically renew for another subscription term on the same plan (or if such plan is no longer available, a successor plan) for a period equal to your then-current subscription term, unless you change or cancel your subscription prior to the end of your current subscription term. All renewals are subject to the applicable Services and plan continuing to be offered, and will be subject to the then-current Fees applicable to the renewed Services.

2.4 Cancellation

. You can stop using the Services or change or cancel your plan, including any subscriptions, at any time in your account settings. If you cancel your subscription, you will not receive a refund or credit for any amounts of any Fees and amounts already paid and any outstanding Fees and amounts will become immediately due and payable. Deleting your account or terminating your account or otherwise not using the Services will not limit any of the Company’s rights or remedies at law or in equity.

2.5 Termination and Suspension by the Company

. We reserve the right to terminate or suspend your account or the Services at any time and for any reason upon notice to you. If we terminate or suspend your account for cause, as determined by the Company in its sole discretion, you will not receive a refund or reimbursement.

2.6 Effect of Termination

. If your account is inactive or deleted, your account, and any information or materials associated with your account, including your Content, may be inaccessible and may not be recovered. We will try to give you reasonable advanced notice prior to terminating your account so that you have an opportunity to export your Content. Except where an exclusive remedy may be specified in these Terms, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms. All sections of these Terms which by their nature should survive termination will survive, including without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.

3. YOUR CONTENT

3.1 Content Standards

. These content standards apply to any and all information that may be generated or encountered through use of the Services, such as photographs, images, data files, device characteristics, written text, software, music, graphics, sounds, videos, messages and any other like materials, and includes the AI Content (defined in Section 5) (the “Content”). Your Content must in its entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, your Content must not:

(a) Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
(b) Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, gender, or age.
(c) Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
(d) Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms of Service, Terms of Use, or Privacy Policy.
(e) Be likely to deceive any person.
(f) Promote any illegal activity, or advocate, promote, or assist any unlawful act.
(g) Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
(h) Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
(i) Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising.
(j) Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.

3.2 User Content

. You represent and warrant that you own all rights, title, and interest in and to your Content or that you have otherwise secured all necessary rights in your Content as may be necessary to permit the access, use and distribution thereof as contemplated by these Terms. As between you and the Company, you own all right, title and interest in and to your Content. You grant the Company a royalty-free and sublicensable license to display, host, copy, store and use your Content solely to the extent necessary to provide the Services to you.

3.3 Responsibility for Content

. You acknowledge and agree that all Content, whether publicly posted or privately transmitted on the Services, is the sole responsibility of the person that generated such Content. You are solely responsible for any Content you upload, download, post, email, transmit, store or otherwise make available through your use of the Services.

3.4 Removal of Content

. The Company is not responsible or liable for any Content provided by you or others and the Company has no duty to screen such Content. The Company reserves the right at all times to determine whether Content is appropriate and in compliance with these Terms of Service, and may screen, move, refuse, modify and/or remove Content at any time, without prior notice and in its sole discretion, if such Content is found to be in violation of this Agreement or is otherwise objectionable.

3.5 Content Back-Up

. You are responsible for backing up, to your own computer or other device, any important documents, images or other Content that you store, access, or allow access to via the Services. The Company does not guarantee or warrant that any Content you may store, access, or allow access through the Services will not be subject to inadvertent damage, corruption or loss.

3.6 Improvements

. If you opt-in to do so, you agree that the Company and its affiliates and third-party service provides may use your Content to develop, improve, and provide our Services, including through the use of machine learning technologies.

4. INTELLECTUAL PROPERTY

4.1 Ownership

. Some of our Services allow you to download certain software (“Software”) which may update automatically. You acknowledge and agree that the Company and/or its licensors own all legal right, title, and interest in and to the Software.

4.2 License Grant

. Subject to the terms of these Terms of Services, and provided that you comply with the Terms of Service, the Company grants you a limited, non-exclusive, nontransferable, and revocable license to use the Software, solely to access the Services. To the extent any component of the Software may be offered under an open source license, we’ll make that license available to you and the provisions of that license may expressly override some of these Terms of Service.

4.3 Geographic Restrictions

. The Services, or any part thereof, may not be available in all languages or all counties. You acknowledge that you may not be able to access all or some of the Services, including the Software, in any particular location. If you access the Services from outside the area in which the Company makes such Services available, you are responsible for compliance with local laws.

4.4 Updates

. Company may from time to time in its sole discretion develop and provide Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your device settings, when your device is connected to the internet either: (a) the Software will automatically download and install all available Updates; or (b) you may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and acknowledge and agree that the Software or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Services and be subject to all terms and conditions of these Terms.

4.5 Third-Party Materials

. The Software may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.

4.6 Export Regulation

. The Services and Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Services or Software to, or make the Services or Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or Software available outside the US.

4.7 Beta-Testing

. From time to time, the Company may choose to offer new or updated features of the Services, including the Software (the “Beta Features”), as part of a beta testing program (the “Program”) for the purpose of providing the Company with feedback on the quality and usability of the Beta Features. You understand and agree that your participation in the Program is voluntary and does not create a legal partnership, agency, or employment relationship between you and the Company, and that the Company is not obligated to provide you with any Beta Features. The Company may make such Beta Features available to Program participants by online registration, including via email, or enrollment via the Services. Your use of the Beta Features and participation in the Program is governed by these Terms of Service, any additional terms provided to you in writing by the Company, and any additional license terms that may separately accompany the Beta Features. By participating in the Program, you agree to keep all non-public information you learn about the Beta Features confidential. If the Company provides you with compensation for your participation in the program, such payment will be paid in the amount and at the time indicated to you in writing from the Company. The Beta Features are provided on an “AS IS” and “AS AVAILABLE” basis and may contain errors or inaccuracies that could cause failures, corruption or loss of data and/or information from your device and from peripherals (including, without limitation, servers and computers) connected thereto. The Company strongly encourages you to backup all data and information on your device and any peripherals prior to participating in any Program. You expressly acknowledge and agree that all use of the Beta Features is at your sole risk. YOU ASSUME ALL RISKS AND ALL COSTS ASSOCIATED WITH YOUR PARTICIPATION IN ANY PROGRAM, INCLUDING, WITHOUT LIMITATION, ANY INTERNET ACCESS FEES, BACKUP EXPENSES, COSTS INCURRED FOR THE USE OF YOUR DEVICE AND PERIPHERALS, AND ANY DAMAGE TO ANY EQUIPMENT, SOFTWARE, INFORMATION OR DATA. The Company is not required to provide you with technical and/or other support for the Beta Features. The Company reserves the right to modify the terms, conditions or policies of the Program (including ceasing the Program) at any time with or without notice, and may revoke your participation in the Program at any time. You acknowledge that the Company has no obligation to provide a commercial version of the Beta Features, and that should such a commercial version be made available, it may have features or functionality different than that contained in the Beta Features. As part of the Program, the Company may provide you with the opportunity to submit comments, suggestions, or other feedback regarding your use of the Beta Features. The Company will be free to use any feedback you provide for any purpose.

4.8 Feedback

. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Company an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Services and create other products and services.

5. AI SPECIFIC TERMS

5.1 AI Features

. Part of the Services may have features and capabilities that utilize artificial intelligence, machine learning, or similar technologies (“AI Features”).

5.2 AI Content

. You are solely responsible for any information, content, or code uploaded to the AI Features (“Input”) and the output generated and returned by the AI Features based on the Input (“Output”) (Input and Output are collectively “AI Content”). You are solely responsible for ensuring that the AI Content complies with applicable laws, these Terms, the Terms of Use, and the Privacy Policy. You agree that you will not include any sensitive personal data in any AI Content to the AI Features. As between you and the Company, and to the extent permitted by third party terms and applicable laws, you own all Inputs and you are authorized to use the Outputs subject to these Terms. How you use the AI Content is at your sole own risk. Outputs may not be unique across users and the AI Features may generate the same or similar Output for third parties.

5.3 Prohibited Use

. The content standards set forth in Section 3.1 (the “Content Standards” apply to the AI Features. You must not use the AI Features:

(a) In any way that violates our Content Standards.
(b) To create content that would violate our Content Standards.
(c) To develop machine-learning models or related technology.
(d) For fully automated decision making that adversely impacts an individual’s legal rights or otherwise creates or modifies a binding, enforceable obligation.
(e) To provide professional advice, including medical, legal, or financial advice.
(f) To mislead anyone that the content generated by AI Features is human-generated.
(g) To generate political content, including for the dissemination in electoral campaigns.
(h) To generate source code.
(i) To generate spam, ransomware, keyloggers, viruses or other software.
(j) In any way that violates any other terms, documentation, guidelines, or policies we make available to you.

5.4 Disclaimers

(a) THE OUTPUT OF THE AI FEATURES IS GENERATED BY ARTIFICIAL INTELLIGENCE. THE COMPANY HAS NOT VERIFIED THE ACCURACY OF THE OUTPUT AND THE COMPANY MAKES NO WARRANTY OR GUARANTEE AS TO THE ACCURACY, COMPLETENESS, OR RELIABILITY OF THE OUTPUT. THE COMPANY SHALL NOT BE LIABLE OR RESPONSIBLE IN ANY WAY FROM YOUR USE OF THE OUTPUT OR ANY RESULTS CONTAINED IN THE OUTPUT, INCLUDING ANY OMISSIONS OR ERRORS.
(b) YOU UNDERSTAND AND AGREE THAT ANY INFORMATION OBTAINED THROUGH USING THE AI FEATURES IS AT YOUR SOLE RISK. DO NOT RELY ON ANY OUTPUT WITHOUT INDEPENDENT FACT-CHECKING OR INDEPENDENT REVIEW.
(c) The Output does not represent the views of the Company.
(d) Use discretion before relying on, publishing or otherwise using content provided by the Services.

6. SECURITY AND DATA PRIVACY

6.1 Information Security

. The Company implements and maintains physical, technical and administrative security measures designed to protect your information from unauthorized access, destruction, use, modification or disclosure. You can learn more about how the Company protects the Services and your information in our Privacy Policy.

6.2 Data Privacy

. Our Privacy Policy describes how the Company collects, uses, transfers, discloses and stores your personal data. By accessing the Services, you confirm that you have read, understood and agree to our Privacy Policy in full. In the event of any conflict between these Terms and the Privacy Policy, the Privacy Policy shall prevail.

6.3 Third-Party Service Providers

. The Company uses technology provided by third-party service providers to provide some of our AI Features. By using the AI Features, you are agreeing to any applicable third-party terms and conditions. You acknowledge that any Input you provide, including any personal data included by you in such Input, will be shared with third party service providers we engage to enable functionality within the Services. By using the AI Features, you direct and consent to personal data you include in an Input being transferred to third parties, including Open AI, L.L.C. . Such third-parties may use Inputs for model training and improvement, and will be subject to such third-parties terms and conditions. Subject to our Privacy Policy, we may also share your data with select third party service providers we engage to enable functionality within the Services and they may also use your data to improve their services. This may include any personal data you choose to include within such Input and you acknowledge that our Privacy Policy applies to the handling of such personal data.

7. INFORMATION ABOUT YOU AND YOUR VISITS TO THE SERVICES

All information we collect on the Services is subject to our Privacy Policy. By using the Services, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

. The Services may provide certain social media features that enable you to: (a) link from your own or certain third-party websites to certain content on the Services; (b) send emails or other communications with certain content, or links to certain content, on the Services; and (c) cause limited portions of content on the Services to be displayed or appear to be displayed on your own or certain third-party websites.

. You may use these features solely as they are provided by us, solely with respect to the content they are displayed with, and otherwise in accordance with any additional terms and conditions we provide with respect to such features. Subject to the foregoing, you must not:

(a) Establish a link from any website that is not owned by you.
(b) Cause the Services or portions of it to be displayed on, or appear to be displayed by, any other site, for example, framing, deep linking, or in-line linking.
(c) Link to any part of the Services other than the homepage.
(d) Otherwise take any action with respect to the materials on the Services that is inconsistent with any other provision of these Terms of Service.

8.3 Compliance with Content Standards

. The website from which you are linking, or on which you make certain content accessible, must comply in all respects with any the Content Standards.

8.4 Cooperation

. You agree to cooperate with us in causing any unauthorized framing or linking immediately to stop. We reserve the right to withdraw linking permission without notice. We may disable all or any social media features and any links at any time without notice in our discretion.

9. LINKS FROM THE SERVICES

If the Services contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to the Services, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.

10. DISCLAIMER OF WARRANTIES

You understand that we cannot and do not guarantee or warrant that any part the Services will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED IN CONNECTION WITH, OR LINKED TO, ANY SERVICES.

YOUR USE OF THE SERVICES, AND CONTENT, AND ANY ITEMS OBTAINED THROUGH THE SERVICES IS AT YOUR OWN RISK. THE SERVICES, CONTENT, AND ANY SERVICES, PRODUCTS, OR ITEMS OBTAINED THROUGH THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE SERVICES, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR WEBSITE OR THE SERVER THAT MAKES THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

11. LIMITATION ON LIABILITY

TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICES, ANY SERVICES LINKED TO IT, ANY CONTENT ON THE SERVICES OR SUCH OTHER SERVICES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.

OUR SOLE AND ENTIRE MAXIMUM LIABILITY, FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID BY YOU FOR THE PRODUCTS OR SERVICES YOU HAVE ORDERED THROUGH OUR SERVICES.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

12. INDEMNIFICATION

You agree to defend, indemnify, and hold harmless the Company, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Service or your use of the Services, including, but not limited to, any use of the Services’ content, services, and products other than as expressly authorized in these Terms of Service, or your use of any information obtained from the Services.

13. DISPUTE RESOLUTION AND ARBITRATION

YOU AND THE COMPANY ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.

ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.

13.1 Disputes Generally

(a) If you have any concerns, we are ready to assist you either via email at [email protected], or you may write to us at P.O. Box 22700, San Diego CA 92122. If you have any questions or concerns regarding how we manage, access or use your personal information, please review our Privacy Policy or please write us at P.O. Box 22700, San Diego CA 92122 or email us at [email protected].
(b) In the event that we are unable to resolve your concern, by using the Services you unconditionally agree that all claims relating to your access or use of our Services, including claims related to our Privacy Policy and all disputes arising out of, or related to, any products or services purchased from Company through our Services, will be resolved entirely through binding individual arbitration, rather than in court. You may also assert individual claims in small claims court if your claims otherwise qualify. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

13.2 Opt-Out

. You may opt out of the provisions of this Section 13 by sending to the Company, within thirty (30) days of agreeing to these Terms, a written opt-out notice that specifies (1) your name, (2) your email associated with such purchase, (3) your mailing address, (4) the date you agreed to these Terms, and (4) your request to be excluded from the final, binding arbitration procedure and class action waiver specified in these Terms (“Opt-out Notice”). To be valid, Opt-out Notices must be mailed to Imaige, Inc., P.O. Box 22700, San Diego CA 92122. and the date of mailing must be within thirty (30) days after the date that you agreed to the Terms (as confirmed by Company’s records).

13.3 Arbitration Process

. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim and the relief sought to Imaige, Inc., P.O. Box 22700, San Diego CA 92122. The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within thirty (30) days after the arbitration notice is received, you or Company may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. Any arbitration between you and Company will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement. The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable, or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.

13.4 No Class Actions

. YOU AND COMPANY AGREE THAT EACH 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, unless both you and Company agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

13.5 Enforceability

. If Section 13.4 is found to be unenforceable or if the entirety of this Section 13 is found to be unenforceable, then the entirety of this Section 13 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 14.1 will govern any action arising out of or related to these Terms.

14. MISCELLANEOUS

14.1 Governing Law; Jurisdiction

. All matters relating to the Services and these Terms of Service, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction). Any legal suit, action, or proceeding arising out of, or related to, these Terms of Service or the Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of California, in each case located in the City of San Diego and County of San Diego, although we retain the right to bring any suit, action, or proceeding against you for breach of these Terms of Service in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

14.2 Electronic Communications

. You agree that communications and transactions between us may be conducted electronically.

14.3 Other Terms and Conditions

. Additional terms and conditions may apply to specific portions, services, or features of the Services. All such additional terms and conditions are hereby incorporated by this reference into these Terms of Service.

14.4 Force Majeure

. We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

14.5 Limitation on Time to File Claims

. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

14.6 Notices

(a) To You. We may provide any notice to you under these Terms by: (i) sending a message to the email address you provide or (ii) by posting to the Services. Notices sent by email will be effective when we send the email and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current.
(b) To Us. To give us notice under these Terms, you must contact us as follows: (i) by email to [email protected]; or (ii) by registered or certified mail to P.O. Box 22700, San Diego CA 92122. We may update the email address for notices to us by posting a notice on the Services. Notices provided by personal delivery will be effective immediately. Notices provided by email will be effective one (1) business day after they are sent. Notices provided by registered or certified mail will be effective three (3) business days after they are sent.

14.7 International Use

. Company is based in the United States. We make no representation that the Services are appropriate or available for use in all jurisdictions. Access to the Services from countries or territories or by individuals where such access is illegal is prohibited.

14.8 No Third-Party Beneficiaries

. These Terms do not and are not intended to confer any rights or remedies upon any person other than you.

14.9 Assignment

. You will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this Section 14.9 is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.

14.10 Waiver and Severability

. No waiver by the Company of any term or condition set out in these Terms of Service shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms of Service shall not constitute a waiver of such right or provision. If any provision of these Terms of Service is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Service will continue in full force and effect.

14.11 Entire Agreement

. The Terms of Service, Terms of Use, and our Privacy Policy constitute the sole and entire agreement between you and Company regarding the Services (but excluding any services which the Company may provide to you under a separate written agreement) and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Services.

15. YOUR COMMENTS AND CONCERNS

All feedback, comments, requests for technical support, and other communications relating to the Services should be directed to: [email protected] or P.O. Box 22700, San Diego CA 92122.