TERMS OF SERVICE
PLEASE READ THIS TERMS OF SERVICE AGREEMENT (THE “TERMS OF SERVICE”) CAREFULLY. BY ACCESSING OR USING THIS WEBSITE OR ANY OTHER WEBSITES OF INSTAVISER, INC. (D/B/A INSTAVISER), ITS AFFILIATES OR AGENTS (“INSTAVISER”) WITH LINKS TO THIS AGREEMENT (COLLECTIVELY, THE “WEBSITE”) IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE BY INSTAVISER OR USERS OF THE WEBSITE, COMPLETING THE REGISTRATION PROCESS, AND/OR MERELY BROWSING THE WEBSITE, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF SERVICE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH INSTAVISER, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF SERVICE PERSONALLY OR ON BEHALF OF THE COMPANY YOU REPRESENT, AND TO BIND THAT COMPANY TO THE TERMS OF SERVICE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE CUSTOMER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.
THE TERMS OF SERVICE REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
The “Services” consist of the following, without limitation: InstaViser provides a Website and mobile software application, (“Application”) for student users (“Students”) to seek out and request text, photo, and video coaching sessions with instructors (“Instructors”) in the fields of fitness, sports, hobbies, wellness and additional fields that may be added by InstaViser from time to time (“Instructor Session”) and additional services that may be added by InstaViser. The term “Users” refers to both Students and Instructors. Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Service or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Service are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Service and any applicable Supplemental Terms are referred to herein as the “Terms.”
PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY INSTAVISER IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, InstaViser will make a new copy of the Terms of Service available at the Website and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website. We will also update the “Updated” date at the end of the Terms of Service. If we make any material changes, and you have registered to use the Services, we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms. Any changes to the Terms will be effective immediately for new Users of the Website or Services and will be effective thirty (30) days after posting of notice of such changes on the Website for existing Users, provided that any material changes shall be effective for Users who have a registered account on the Website upon the earlier of thirty (30) days after posting of notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users (defined in Section 3.1 below). InstaViser may require you to provide consent to the updated Terms in a specified manner before further use of the Website or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website and/or the Services. Otherwise, your continued use of the Website and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
2. Use of the Services and InstaViser Properties. The Application, the Website, the Services, and the Content (collectively, the “InstaViser Properties”) are protected by copyright laws throughout the world. Subject to the Terms, InstaViser grants you a limited license to reproduce portions of the InstaViser Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by InstaViser in a separate license, your right to use any InstaViser Properties is subject to the Terms.
2.1 Application License. Subject to your compliance with the Terms, InstaViser grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
2.2 Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the InstaViser Properties or any portion of the Website, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other InstaViser Properties (including images, text, page layout or form) of InstaViser; (c) you shall not use any metatags or other “hidden text” using the InstaViser name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the InstaViser Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials) or to record all or any portion of any Instructor Sessions; (f) access the InstaViser Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the InstaViser Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the InstaViser Properties. Any future release, update or other addition to the InstaViser Properties shall be subject to the Terms. InstaViser, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the InstaViser Properties terminates the licenses granted by InstaViser pursuant to the Terms.
2.3 Third-Party Materials. As a part of the InstaViser Properties, you may have access to materials that are hosted by other parties. You agree that you access these materials at your own risk.
3.1 Registering your Account. In order to access certain features of the InstaViser Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an account on the Website (“Account”) using either a valid email address, or an account on a social networking service (“SNS”) through which the User has connected to the Services (each such account, a “Third-Party Account”).
3.2 Accessing Your Account. In order to create an Account, you must connect to InstaViser using either an email address and password or a SNS. When you access the Services through an SNS as part of the functionality of the Website and the Services, you may link your Account with Third-Party Accounts, by allowing InstaViser to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to InstaViser and/or grant InstaViser access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating InstaViser to pay any fees or making InstaViser subject to any usage limitations imposed by such third-party service providers. By granting InstaViser access to any Third-Party Accounts, you understand that InstaViser may access, make available and store (if applicable) any Content that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through the InstaViser Properties via your Account. Unless otherwise specified in the Terms, all SNS Content shall be considered to be Your Content (as defined in Section 6.1) for all purposes of the Terms. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the InstaViser Properties. Please note that if a Third-Party Account or associated service becomes unavailable or InstaViser’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content may no longer be available on and through the InstaViser Properties. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the applicable settings or privacy section of the applicable SNS website. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND INSTAVISER DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. InstaViser makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and InstaViser is not responsible for any SNS Content.
3.3 Registration Data. In registering for the Services through either an email address or an SNS, you agree to (1) provide true, accurate, current and complete information about yourself (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the InstaViser Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the InstaViser Properties by minors. You may not share your Account or password with anyone, and you agree to (1) notify InstaViser immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or InstaViser has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, InstaViser has the right to suspend or terminate your Account and refuse any and all current or future use of the InstaViser Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per SNS at any given time. InstaViser reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third-party that a username violates the third-party’s rights. You agree not to create an Account or use the InstaViser Properties if you have been previously removed by InstaViser, or if you have been previously banned from any of the InstaViser Properties.
4. Student Services. The following terms apply only to Student Users.
4.1 Fees. When using the Services, you may be required to a pay fee for access to certain features and content offered by the applicable Instructor(s) (“Fee”). When agreeing to pay Fees, this constitutes a binding legal agreement to (a) pay the Fee in accordance with the terms set forth in this Agreement (b) the Agreement you have formed is with the applicable Instructor, and not InstaViser, who is merely providing a billing service platform for Instructors.
4.2 Recording Instructor Sessions. You agree that you will not attempt to record, download, or retransmit all or any portion any Instructor Sessions. However, InstaViser reserves the right at any time to record your Sessions.
4.3 Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not the Terms to determine your rights and liabilities. By providing InstaViser’s third party payment processor with your credit card number and associated payment information, you agree that InstaViser is authorized to immediately invoice your Account for all fees and charges due and payable to InstaViser hereunder and that no additional notice or consent is required. You agree to immediately notify InstaViser of any change in your billing address or the credit card used for payment hereunder. InstaViser reserves the right at any time to change its prices and billing methods, either immediately upon posting on the InstaViser Properties or by e-mail delivery to you. You acknowledge that the charges made for Instructor Sessions, even if billed collectively, include two distinct fees: 1) an administrative fee retained by InstaViser for InstaViser’s Services hereunder and 2) a professional fee delivered to the applicable Instructor for the services provided in association with an Instructor Session. You further acknowledge that although these fees may be collected at one time, InstaViser does not share in the professional fees collected for Instructor Sessions and derives its sole payment from the Student in the form of the administrative fee.
4.4 Taxes. InstaViser’s fees are net of any applicable Sales Tax. If any Services, or payments for any Services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to InstaViser, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority and you will indemnify InstaViser for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that InstaViser is permitted to pass to its customers that is) the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
4.5 Withholding Taxes. You agree to make all payments of fees to InstaViser free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to InstaViser will be your sole responsibility, and you will provide InstaViser with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid
4.6 Disputes. If you dispute any of our charges, you must notify us in writing within seven (7) days after receiving your credit card statement listing the disputed charge. Billing disputes should be sent to firstname.lastname@example.org, or may be mailed to the following address:
760 Market St, 5th Floor
San Francisco, CA 94102
4.7 Referrals. Referrals and personal invite links should only be used for personal and non-commercial purposes. This means that you can share your invite link with your personal connections via email, Twitter feeds, Facebook pages, personal blogs, etc. where you are the primary content owner. However public distribution on sites where you are a contributor but not the primary content owner (e.g., Wikipedia, coupon websites) is not allowed. Promoting your referral code via Search Engine Marketing (e.g., AdWords/Yahoo/Bing) is also not allowed. We reserve the right to suspend your account and/or revoke any and all referral credits at any time if we feel they were earned inappropriately.
5. Instructor Services. The following terms apply only to Instructor Users.
5.1 Instructor Accounts. InstaViser may, at its sole discretion, invite Users of the Service who meet our standards to become Instructors. Upon grant of Instructor privileges, InstaViser may require you to provide additional Registration Data. InstaViser is providing the Service as a venue for connecting you with potential Students. You acknowledge that there is no employment, contractor, or joint-venture relationship between you and InstaViser. BY CREATING AN INSTRUCTOR ACCOUNT, YOU UNDERSTAND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY INSTRUCTOR SESSIONS YOU PROVIDE.
5.2 Offering Instructor Sessions. Following the creation of your Instructor Account, you will be able to use the Services to offer Instructor Sessions in the fields for which you registered as an Instructor for free or in certain instances at a Fee posted by you on the Service. Your Fee constitutes a valid offer to enter into a binding legal agreement with the Student to provide the Instructor Session for the specified price and in accordance with these Terms. Any changes or modifications to the Instructor Session must be resolved with the Student.
5.3 Instructor Account Restrictions. You, as an Instructor, represent and warrant that you will use the Services solely to provide Students with Instructor Sessions in the fields for which you registered as an Instructor. Specifically, you hereby represent, warrant, and covenant that you have the requisite knowledge and experience to provide instruction in such fields and that you will personally perform all Instructor Sessions you promote using the Services. You will use any information obtained from the Services solely in connection with the Services, and will not use such information in order to (a) harass, abuse, or harm another person, or (b) to contact, advertise to, solicit, or sell any products or services to any User without that User’s prior explicit written consent. You will not attempt to impersonate another User or person, including, without limitation, any employee of InstaViser or another Instructor. At all times, you will use the Services in a manner consistent with this Agreement and any and all applicable laws and regulations.
5.4 Instructor Payments. You, as an Instructor, shall receive payments for each Instructor Session you complete for a Fee, and for which InstaViser has received payment from the applicable Student, based upon the price you charge for the Instructor Session and InstaViser’s then-current fee structure, less any chargebacks or refunds issued by InstaViser in connection with any of your Instructor Sessions. InstaViser shall send you payment within approximately thirty (30) days after the end of each calendar month using the payment method designated in your Registration Data, provided your total outstanding Instructor Session earnings balance exceeds $100. In the event that these Terms are terminated without cause, InstaViser will pay you any amounts owed to you under your outstanding Instructor Session earnings balance within ninety (90) days after the end of the calendar month in which the Terms are terminated. Notwithstanding the foregoing, InstaViser shall not be liable for any payment to you in the event that InstaViser provides a Student, at InstaViser’s sole discretion, with a refund for a given Instructor Session. InstaViser reserves the right, at InstaViser’s sole discretion, to withhold payment or charge back your account due to any breach of the Terms by you. To ensure proper payment, you are solely responsible for providing and maintaining accurate Registration Data. You agree to pay all applicable taxes or charges imposed by any government entity in connection with your use of the Services. You acknowledge that there is no employment, contractor or joint venture relationship between you and InstaViser. You are solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to receipt of fees in connection with serving as an Instructor. Fees paid to Instructors shall not be subject to withholding for any tax purpose. InstaViser may change its fee structure at any time. Any payment disputes may be delivered to InstaViser at the address set out in Section 20.10.
6. Responsibility for Content.
6.1 Types of Content. You acknowledge that all Content, including Content included in any Instructor Session, is the sole responsibility of the party from whom such Content originated. This means that you, and not InstaViser, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the InstaViser Properties (“Your Content”), and other Users of the InstaViser Properties, and not InstaViser, are similarly responsible for all Content they Make Available through the InstaViser Properties, including, but not limited to, any Instructor Sessions (“User Content”).
6.2 No Obligation to Monitor Content. You acknowledge that InstaViser has no obligation to monitor Content (including, but not limited to, Your Content and User Content), although InstaViser reserves the right in its sole discretion to monitor, record Instructor Sessions, refuse or remove any Content (including any reviews or ratings provided by Students about Instructors). By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation text, photo, audio, and video communications. In the event that InstaViser monitors, refuses or removes any Content, you acknowledge that InstaViser will do so for InstaViser’s benefit, not yours. Without limiting the foregoing, InstaViser shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
6.3 Storage. Unless expressly agreed to by InstaViser in writing elsewhere, InstaViser has no obligation to store any of Your Content that you Make Available on the InstaViser Properties. InstaViser has no responsibility or liability for the deletion of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the InstaViser Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that InstaViser retains the right to create reasonable limits on InstaViser’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by InstaViser in its sole discretion.
7.1 InstaViser Properties. Except with respect to Your Content and User Content, you agree that InstaViser and its suppliers own all rights, title and interest in the InstaViser Properties (including but not limited to, titles, computer code, themes, objects, concepts, artwork, animations, videos, sounds, musical compositions, audiovisual effects, methods of operation, moral rights). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or the InstaViser Properties.
7.2 Trademarks. InstaViser’s stylized name and other related graphics, logos, service marks and trade names used on or in connection with the InstaViser Properties are the trademarks of InstaViser and may not be used without permission. Other trademarks, service marks and trade names that may appear on or in the InstaViser Properties are the property of their respective owners.
7.3 Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the InstaViser Properties.
7.4 Your Content. InstaViser does not claim ownership of Your Content. However, when you as a User post or publish or otherwise transmit Your Content on or in the InstaViser Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
7.5 License to Your Content. Subject to any applicable account settings that you select, you grant InstaViser a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, record, license, distribute, reproduce, modify, create derivative works from, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing the InstaViser Properties to you and to our other Users in accordance with the Terms. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the InstaViser Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not InstaViser, are responsible for all of Your Content that you Make Available on or in the InstaViser Properties.
7.6 Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments, question and answer or any other area on or in the InstaViser Properties, you hereby expressly permit InstaViser to identify you by your username as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
7.7 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of InstaViser.
7.8 Your Profile. Any Content posted by you on or in the InstaViser Properties (including, but not limited to, on your profile) may not contain nudity, violence, sexually explicit, or offensive subject matter. You may not post a photograph of another person without that person’s permission.
8. Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to InstaViser through its suggestion, feedback or similar pages (“Feedback”) is at your own risk and that InstaViser has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to InstaViser a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the InstaViser Properties.
9. User Conduct. As a condition of use, you agree not to use the InstaViser Properties for any purpose that is prohibited by the Terms or by applicable law. You shall not (and shall not permit any third-party) either (a) to take any action or (b) Make Available any Content on or through the InstaViser Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising; (iv) involves commercial activities and/or sales without InstaViser’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of InstaViser; (vi) interferes with or attempts to interfere with the proper functioning of the InstaViser Properties or uses the InstaViser Properties in any way not expressly permitted by the Terms; (vii) introduce software or automated agents to the Services so as to produce multiple Accounts or generate automated messages; or (viii) to attempt or engage in, any potentially harmful acts that are directed against the InstaViser Properties, including but not limited to violating or attempting to violate any security features of the InstaViser Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the InstaViser Properties, introducing viruses, worms, or similar harmful code into the InstaViser Properties, or interfering or attempting to interfere with use of the InstaViser Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” the InstaViser Properties.
10. Investigations. InstaViser may, but is not obligated to, monitor or review the InstaViser Properties and Content at any time. Without limiting the foregoing, InstaViser shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law. Although InstaViser does not generally monitor user activity occurring in connection with the InstaViser Properties, if InstaViser becomes aware of any possible violations by you of any provision of the Terms, InstaViser reserves the right to investigate such violations, and InstaViser may, at its sole discretion, immediately terminate your license to use the InstaViser Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
11. Interactions with Other Users.
11.1 User Responsibility. You are solely responsible for your interactions with other Users of the Services and any other parties with whom you interact through the Services; provided, however, that InstaViser reserves the right, but has no obligation, to intercede in such disputes. You agree that InstaViser will not be responsible for any liabilities incurred by you as the result of such interaction and InstaViser will not work to resolve any disputes between Students and Instructors. IN EXCHANGE FOR THE PRIVILEGE OF ACCESSING THE SERVICES, YOU AGREE TO RELEASE INSTAVISER FROM ANY CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY DISPUTE YOU HAVE WITH ONE OR MORE INSTRUCTORS.
11.2 Content Provided by Other Users. The InstaViser Properties may contain User Content provided by other Users. InstaViser is not responsible for and does not control User Content (including, but not limited to, any Instructor Sessions ). InstaViser has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk.
11.3 Instructor Ratings. InstaViser does not endorse ratings or reviews posted on the Service by Users about Instructors (“Ratings”) and InstaViser is not responsible for such Ratings. InstaViser reserves the right to remove any Ratings at its sole discretion.
12. Third-Party Services.
12.1 Third-Party Websites. The InstaViser Properties may contain links to third-party websites (“Third-Party Websites”). Such Third-Party Websites are not under the control of InstaViser. InstaViser is not responsible for any Third-Party Websites. InstaViser provides these Third-Party Websites only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, or their products or services. You use all links in Third-Party Websites at your own risk. When you leave the InstaViser Properties, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third-party.
12.2 App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third-party from which you received the Application license, e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge that the Terms are between you and InstaViser and not with the App Store. InstaViser, not the App Store, is solely responsible for the InstaViser Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g. product liability, legal compliance, or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the InstaViser Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the InstaViser Properties, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
13. Indemnification. You agree to indemnify and hold InstaViser, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively the “InstaViser Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the InstaViser Properties, including, for Instructors, to provide Instructor Sessions to a Student; (c) your violation of the Terms; (d) your violation of any rights of another party, including any User; or (e) your violation of any applicable laws, rules or regulations. InstaViser 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 InstaViser in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms, or your access to the InstaViser Properties.
14. Disclaimer of Warranties.
14.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE INSTAVISER PROPERTIES IS AT YOUR SOLE RISK, AND THE INSTAVISER PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE INSTAVISER PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. (a) THE INSTAVISER PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (i) THE INSTAVISER PROPERTIES WILL MEET YOUR REQUIREMENTS; (ii) YOUR USE OF THE INSTAVISER PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE INSTAVISER PROPERTIES, INCLUDING ANY INFORMATION PROVIDED IN AN INSTRUCTOR SESSION, WILL BE ACCURATE OR RELIABLE; OR (iv) ANY ERRORS IN THE INSTAVISER PROPERTIES WILL BE CORRECTED. (b) ANY CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY INSTAVISER SESSIONS, VIEWED, DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE INSTAVISER PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE INSTAVISER PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT. (c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. INSTAVISER MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES. (d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM INSTAVISER, INSTRUCTORS, OR THROUGH THE INSTAVISER PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
14.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT THE INSTAVISER PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE INSTAVISER PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
14.3 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE INSTAVISER PROPERTIES. YOU UNDERSTAND THAT INSTAVISER DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE INSTAVISER PROPERTIES.
15. Limitation of Liability.
15.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL INSTAVISER PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE INSTAVISER PROPERTIES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT INSTAVISER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS, INCLUDING ANY INSTRUCTORS, OF THE INSTAVISER PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE INSTAVISER PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE INSTAVISER PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD-PARTY, INCLUDING ANY INSTRUCTORS, ON INSTAVISER PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO THE INSTAVISER PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
15.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE INSTAVISER PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY INSTAVISER AS A RESULT OF YOUR USE OF THE INSTAVISER PROPERTIES. IF YOU HAVE NOT PAID INSTAVISER ANY AMOUNTS IN THE PERIOD DURING WHICH YOU FIRST ASSERT ANY SUCH CLAIM, INSTAVISER’S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED FIFTY DOLLARS ($50).
15.3 User Content. THE INSTAVISER PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
15.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN INSTAVISER AND YOU.
16. Procedure for Making Claims of Copyright Infringement. It is InstaViser’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to InstaViser by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the InstaViser Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the InstaViser Properties of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (f) 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. For claims of copyright infringement, please notify InstaViser’s Copyright Agent at email@example.com, or at:
ATTN: Copyright Agent
760 Market St, 5th Floor
San Francisco, CA 94102
17. Term and Termination.
17.1 Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the InstaViser Properties, unless terminated earlier in accordance with the Terms.
17.2 Prior Use. Notwithstanding the foregoing, if you used the InstaViser Properties prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used the InstaViser Properties (whichever is earlier) and will remain in full force and effect while you use the InstaViser Properties, unless earlier terminated in accordance with the Terms.
17.3 Termination of Services by You. If you want to terminate the Services provided by InstaViser, you may do so by notifying InstaViser at any time via email to firstname.lastname@example.org. InstaViser, in its sole discretion, may seek to verify the authenticity of this request.
17.4 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. InstaViser will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
18.1 Violations. If InstaViser becomes aware of any possible violations by you of the Terms, InstaViser reserves the right to investigate such violations. If, as a result of the investigation, InstaViser believes that criminal activity has occurred, InstaViser reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. InstaViser is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the InstaViser Properties, including Your Content, in InstaViser’s possession in connection with your use of the InstaViser Properties, to (a) comply with applicable laws, legal process or governmental request; (b) enforce the Terms; (c) respond to any claims that Your Content violates the rights of third parties; (d) respond to your requests for customer service; or (5) protect the rights, property or personal safety of InstaViser, its Users or the public, and all enforcement or other government officials, as InstaViser in its sole discretion believes to be necessary or appropriate.
18.2 Breach. In the event that InstaViser determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for the InstaViser Properties, InstaViser reserves the right to:
(a) Warn you via e-mail (to any e-mail address you have provided to InstaViser) that you have violated the Terms; (b) Delete any of Your Content provided by you or your agent(s) to the InstaViser Properties; (c) Discontinue your registration(s) with any of the InstaViser Properties, including the Services or any InstaViser community; (d) Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or (e) Pursue any other action which InstaViser deems to be appropriate.
19. International Users. This Website can be accessed from countries around the world and may contain references to InstaViser Properties and Content that are not available in your country. These references do not imply that InstaViser intends to announce such InstaViser Properties or Content in your country. The InstaViser Properties are controlled and offered by InstaViser from its facilities in the United States of America. InstaViser makes no representations that the InstaViser Properties are appropriate or available for use in other locations. Those who access or use the InstaViser Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.
20. General Provisions.
20.1 Electronic Communications. The communications between you and InstaViser use electronic means, whether you visit the InstaViser Properties or send InstaViser e-mails, or whether InstaViser posts notices on the InstaViser Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from InstaViser in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that InstaViser provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
20.2 Release. You hereby release InstaViser Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interactions with or conduct of other Website Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the InstaViser Properties. If you are a California resident, you hereby waive 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 favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.
20.3 Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without InstaViser’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. InstaViser may freely assign the Terms.
20.4 Force Majeure. InstaViser shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
20.5 Compliance. If you believe that InstaViser has not adhered to the Terms, please contact InstaViser by emailing us at email@example.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
20.6 Limitations Period. YOU AND INSTAVISER AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, THE INSTAVISER PROPERTIES, OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
20.7 Dispute Resolution.
(a) Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms where the total amount of the award sought is less than Five Thousand U.S. Dollars (US $5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with the Terms. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) all arbitration proceedings shall be held in English; (iii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iv) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider. Notwithstanding the foregoing, InstaViser may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. Please note that the laws of the jurisdiction where you are located may be different from California law, including the laws governing what can legally be sold, bought, exported, offered or imported. You shall always comply with all the international and domestic laws, ordinances, regulations and statutes that are applicable to your use of the InstaViser Properties.
(b) Any other dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by binding and confidential arbitration. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by the Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
(c) You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
(d) You and InstaViser must abide by the following rules: (i) ANY CLAIMS BROUGHT BY YOU OR INSTAVISER MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (ii) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (iii) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, InstaViser will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (iv) InstaViser also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (v) the arbitrator shall honor claims of privilege and privacy recognized at law; (vi) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for the purposes of enforcement of the arbitration award; (vii) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (viii) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by applicable law.
(e) The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 15 of the Terms. Judgment on the award of the arbitrator may be entered by any court of competent jurisdiction. The arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of the Terms, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by California law or United States Federal law. Notwithstanding the foregoing, either you or InstaViser may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in San Francisco County, California. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in San Francisco County, California, in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within San Francisco County, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
(f) With the exception of (d)(i) and (ii) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either (d)(i) or (ii) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor InstaViser shall be entitled to arbitration. If for any reason, a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in San Francisco County, California. By using the InstaViser Properties in any manner, you agree to the above arbitration provision.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
20.8 Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Terms.
20.9 Choice of Language. It is the express wish of the parties that the Terms and all related documents have been drawn up in English.
20.10 Notice. Where InstaViser requires that you provide an e-mail address, you are responsible for providing InstaViser with your most current e-mail address. In the event that the last e-mail address you provided to InstaViser is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, InstaViser’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to InstaViser at the following address: 760 Market, 5th Floor, San Francisco, CA 94102. Such notice shall be deemed given when received by InstaViser by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
20.11 Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
20.12 Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
20.13 Users Outside The United States. If you are located in a country embargoed by the United States, or are on the U.S. Treasury Department's list of Specially Designated Nationals you are prohibited from using the InstaViser Properties. You will not use the InstaViser Properties if you are prohibited from receiving products, services, or software originating from the United States.
20.14 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
20.15 Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
Updated July 10, 2015