TERMS OF SERVICE
Welcome to Rebundle.
These Terms of Service govern your access to and use of our Service, on a paid or free trial basis. By activating the Rebundle application, or by using or otherwise accessing the Service (as defined below), you are agreeing to these Terms of Service. For purposes of these Terms of Service:
- We’ll refer to our software-as-a-service product(s) accessed through the Rebundle application as the “Product,” and all the services we provide (including any services that we may provide prior to your installation of the Rebundle application), individually and collectively, in connection with the Product, as the “Service”.
- We’ll refer to these Terms of Service as these “Terms of Service,” and any agreements or other communications or documents outlining the terms of your subscription to the Service in accordance with our subscription process (e.g., package terms set forth on our website rebundleapp.com, email exchanges with us, or subscription specifications provided through a Third Party Service such as the Shopify eCommerce platform) as the “Subscription Specifications”. We’ll refer to the Terms of Service and the Subscription Specifications collectively as this “Agreement.”
- We’ll refer to Motmot Systems, LLC dba Rebundle APP as “we,” “us,” or “Rebundle.”
- We’ll refer to the person or entity subscribing to the Service (“Customer”), together with all individuals authorized by Customer to access the Service on its behalf (each, an “Authorized User”), as “you”. Together, we’ll refer to you and Rebundle as “Parties”.
- In this Agreement, the words “include” and “including” will not be construed as terms of limitation.
All capitalized terms used in these Terms of Service have the respective meanings ascribed to them in Section 16 below or elsewhere in these Terms of Service.
The Agreement is a legally binding contract between you and Motmot Systems, LLC dba Rebundle APP. To access the Product, you must be able to enter into a legally binding contract, and by accessing the Product each Authorized User represents that he or she is at least 18 years old, and, if Customer is an entity, that Customer is duly organized and in good standing.
- UPDATES TO THE AGREEMENT
We reserve the right to update or otherwise modify the Agreement from time to time. If we do update or modify the Agreement, we will notify you through the Service or through other reasonable means (for example, by posting a notice on our website) before the date the updated or modified Agreement becomes effective. Your continued use of the Service following the date of we notify you of any update or modification of the Agreement constitutes your consent to the updated or modified terms.
- Your Right to Use the Service
During the Subscription Term and subject to the terms of this Agreement, we grant you a limited, non-exclusive, revocable, non-sublicensable, non-transferable license to use and access the Service as described in the applicable Subscription Specifications. The Service may require installation of Rebundle Code on Customer Properties; if so, limited license granted in this Section further includes the limited right to install and use the relevant Rebundle Code on the Customer Properties solely for purposes of this Agreement.
- Your Account
If you are subscribing for the Service as an Authorized User administrator on behalf of Customer that is not a natural person, (a) you represent and warrant that you are an Authorized User and have the authority to legally bind that Customer and to grant us all permissions and licenses on behalf of that Customer as provided in this Agreement; (b) you are responsible for administering that Customer’s access to and use of the Service; and (c) you shall not allow access to or use of the Service by anyone other than Authorized Users.
Each Authorized User agrees to: (i) not share Customer’s account or transfer any part of it to anyone else; and (ii) provide accurate, current and complete information during the registration process and keep account-related information provided to us up-to-date. You agree to notify us immediately of any unauthorized access or use of your account and are responsible for anything that happens through your account prior to terminating it or reporting misuse to us. Customer is responsible for compliance by its Authorized Users with this Agreement.
You consent to our using the email address(es) you provide to us to send you Service-related notices, including any notices required by law, in lieu of communication by other means such as postal mail. We may also use your email address to send you other messages, such as notice of changes to Service features, special offers, or Service-related newsletters. If you do not want to receive such email messages, you may unsubscribe as directed in the applicable communication or by contacting email@example.com.
- Usage Limitations
You may only use the Service on one Customer Property per subscription, unless otherwise specified in your Subscription Specifications. The Service may be subject to additional limitations, such as, for example, numerical limits on Visitors that are specific to the type of subscription you purchase. We will specify these limitations in the Subscription Specifications for the applicable subscription package. We reserve the right to modify these limits from time to time in our discretion, and your continued use of the Service after having been provided notice of any such modification shall constitute your agreement to and acceptance of that modification.
- Service Updates
Your subscription to Service includes the right to access all functionality available in the Product consistent with the Subscription Specifications. We reserve the right to enhance and modify the Product and introduce new services from time to time. Other than with respect to Trials (as defined in Section 3(C) below), we will not make changes to the Product or the Service that materially reduce the functionality below that described in the Subscription Specifications. To the extent we make available any new or different features, functionality or enhancements to the Product or the Service, we may require the payment of additional fees. You agree that we shall not be liable to you or any third party for any modification of the Product or the Service made by us in accordance with this Agreement.
- Third-Party Service and Platforms
Certain elements of the Service may be provided through Third Party Service providers, including third party eCommerce platforms. Your use of any such Third Party Service is subject to the terms of service applicable to that Third Party Service. You understand and agree that the availability of the Service, or certain features and functions thereof, may be dependent on the corresponding availability of Third Party Services or specific features and functions of Third Party Services through which we make certain elements of the Service available. We are not responsible for any interruptions or issues with the Service caused by Third Party Service, and make no representation or warranty regarding Third Party Services, whether or not we recommend, certify, or otherwise approve a Third Party Service for use with the Service. Your dealings with or participation with Third Party Services are solely between you and the applicable Third Party Service providers, and you agree that we are not responsible for any loss or damage of any sort relating to your dealings with Third Party Services. You agree to not take any action that would cause Rebundle, the Product, the Service or any Rebundle Code to become subject to any third-party terms (including open source license terms). If you receive any take down requests or infringement notices related to Customer Data or your use of Third Party Service, you must promptly: (a) stop using the subject data or other item with the Service; and (b) notify Rebundle. If Rebundle receives any take down requests or infringement notices related to Customer Data or your use of Third Party Service, we may respond in accordance with our policies, and will notify and consult with you on next steps.
- FEES AND PAYMENT TERMS
- Subscription Fees
You agree to pay Subscription Fees as set forth in the Subscription Specifications. Unless otherwise provided in your Subscription Specifications, all Subscription Fees are payable by credit card or other payment method permitted by us from time to time, and you authorize us to charge your credit card or bank account for all fees payable during the Subscription Term, at the start of the applicable billing period specified in your Subscription Specifications. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party. Except as otherwise specified in the applicable Subscription Specifications, Subscription Fees are non-refundable. In the event your actual usage of the Service exceeds any limitations set forth in the Subscription Specifications, we reserve the right to charge or invoice you for an additional amount based on the amount of Subscription Fees that would have been charged for the subscription level pertaining for your actual usage.
- Payment Terms
You agree to pay all Subscription Fees when due as set forth in the Subscription Specifications or, if invoiced, within fifteen (15) calendar days of the invoice date. We reserve the right to charge interest on late payments at the rate of 1.5% per month or 18% per annum, calculated on a monthly basis on the outstanding balance, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If any payment is fifteen (15) or more days overdue, we may, without limiting our other rights and remedies, suspend your access to the Service until such amounts are paid in full. All amounts payable under this Agreement will be made without setoff or counterclaim. You are responsible for all applicable sales, use, VAT, GST, excise, withholding, or similar taxes or levies, whether domestic or foreign, related to your subscription or the delivery of Service, except for any taxes based on our net income. If you are paying by credit card or through a Third Party Service, you authorize Rebundle to charge Subscription Fees or other amounts due under this Agreement automatically to your credit card or to collect Subscription Fees or other amounts due under this Agreement through the Third Party Service, in either case without invoice.
- Free Trial Service
We may elect at our discretion to make the Service available to you a free trial basis (a “Trial”) until the earlier of: (a) the end of the then-current Trial period offered by us, or (b) the date on which we elect in our sole discretion to terminate your access to the Trial (the “Trial Term”). You acknowledge and agree that the features and functionality of the Service may be limited during the Trial Term. NOTWITHSTANDING ANYTHING TO THE CONTRARY THIS AGREEMENT, WE DO NOT PROVIDE ANY WARRANTY, SUPPORT OR INDEMNIFICATION OF ANY KIND WITH RESPECT TO REBUNDLE, THE PRODUCT OR THE SERVICE DURING THE TRIAL TERM.
- CUSTOMER DATA
- License to your Customer Data
By using the Service, you grant us, our Affiliates, and our Third Party Service providers a limited, non-exclusive, royalty-free, worldwide, sublicenseable license to use the Customer Data solely to the extent necessary to (i) provide the Service to you, and (ii) enforce our rights under the Agreement. We will use commercially reasonable safeguards to secure Customer Data from accidental loss and from unauthorized access, use, alteration or disclosure due to our actions. You agree that Rebundle may collect, analyze, use and disclose data derived from Customer Data in de-identified form, in which all Personal Information (defined below), including direct and indirect identifiers, have been permanently removed or obscured so the remaining information may not reasonably identify or be linked to an individual (“De-Identified Data”), for any purpose permitted under Applicable Law, including, without limitation, (a) to compile statistical and performance information and analytics related to the provision and operation of the Service; (b) to enhance and improve the Service; and (c) to conduct internal research, development, and marketing.
- Rebundle Data
You agree that we will have the right to monitor use of the Service by all of our customers and use the Rebundle Data in an aggregate and anonymous manner, which we may use for any business purpose during or after the term of this Agreement. You agree that we may use and publish the Rebundle Data, provided that such information does not incorporate any Customer Data that is identifiable as such, does not specifically identify you or any Authorized User or Visitor, and is stripped of all persistent identifiers (e.g., device identifiers and IP addresses). We retain all intellectual property rights in the Rebundle Data.
- Your Responsibility for Customer Data
By using the Service, including any products or services that facilitate the sharing of Customer Data to or from Third Party Service, you understand that you are solely responsible for Customer Data. As between Rebundle and you, you are solely responsible for the accuracy, quality, integrity, and reliability of all Customer Data, and you assume all risks associated with the Customer Data, including anyone’s reliance on its quality, accuracy, or reliability. You represent and warrant that you or your Authorized Users own or have the necessary permissions to use, and authorize the use of, the Customer Data as described herein.
- Limiting Access to Customer Data
We have the absolute right to disable or otherwise limit access the Product’s access to Customer Data as needed to (a) operate, secure and improve the Service (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes); (b) ensure Authorized Users’ compliance with the Agreement (or any Rebundle policy), Applicable Law, or an order or requirement of a court, law enforcement or other administrative agency or governmental body; or (c) as otherwise set forth in this Agreement. If we become aware of any Customer Data that allegedly violates this Agreement, we may investigate the allegation and determine in our sole discretion whether to act, but have no liability or responsibility to you to do so. You agree to cooperate with us in good faith, as we may reasonably request, in any investigation we choose to undertake.
- ACCEPTABLE USE OF THE SERVICES
- Prohibited Activities
You shall not use, or encourage, promote, facilitate or instruct others to use the Service for any illegal, harmful, offensive or inappropriate use, including:
- accessing any content available through the Service through any technology or means other than those authorized by us on the Product, such as by robot, spider, crawler, scraper or other automated means or manual process, for any purpose not authorized in the Agreement;
- using the Service to spam, phish, pharm or pretext;
- interfering with or compromising system integrity or security or deciphering any transmissions to or from the servers running the Product, or otherwise causing harm to the Product, such as configuring the Service (or any component thereof) to avoid incurring fees;
- attempting to gain unauthorized access to accounts;
- removing, circumventing, disabling, damaging or otherwise interfering with security or other preventive features of the Product, the Service or any Third Party Service;
- using the Service to transmit any computer viruses, worms, defects, Trojan horses, malicious code, spyware, malware or other items of a destructive or harmful nature;
- taking any action that imposes, or may impose at our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
- exporting, re-exporting, importing, or transferring any part of the Service except as authorized by United States law, the export control laws of your jurisdiction, and any other Applicable Laws;
- commercially exploiting the Service or making the Service available to any third party, other than to Authorized Users or as otherwise contemplated by this Agreement, or accessing the Service for the purpose of building a similar or competitive product;
- infringing or violating any of our intellectual property rights, including by copying, translating, creating a derivative work of, reverse engineering, reverse assembling, disassembling, or decompiling the Service or any Rebundle Technology, or the intellectual property rights of third parties;
- distributing any portion of the Service, the Product or Rebundle Code other than as specifically permitted by this Agreement;
- using the Service for purposes of product evaluation, benchmarking, or other comparative analysis intended for publication without our prior written consent;
- removing or obscuring any proprietary or other notices contained in the Service, the Product or Rebundle Code, including in any output obtained from the Service; or
- partaking in any activity that, in our sole judgment, restricts or inhibits any other person from using or enjoying any aspect of Rebundle services or exposes or may expose any users of Rebundle services to harm or liability of any sort.
- Prohibited Content
You shall not transmit, store, display, distribute or otherwise make available any Customer Data through the Service, or otherwise use the Service in any manner, that:
- is fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive;
- is defamatory, libelous, harassing, abusive, obscene, sexually explicit, pornographic, vulgar or offensive;
- harasses, abuses, insults, harms, defames, slanders, disparages, intimidates, or discriminates based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability, or otherwise promotes bigotry, hatred, or harm against any individual or group;
- is violent or threatening or promotes violence or actions that are threatening to any other person or animal;
- promotes illegal or harmful activities;
- you do not have the permission from the content owner or individuals appearing in the content to publish or otherwise use, free of charge;
- seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise;
- may constitute or contribute to a crime or tort;
- creates a risk of any other loss or damage to any person or property; or
- violates any Rebundle policy.
Rebundle and you agree to maintain the confidentiality of all Confidential Information disclosed to one another under this Agreement, and to only use the Confidential Information for the purpose of enabling provision of the Service or otherwise as specifically permitted by the terms and conditions of this Agreement. “Confidential Information” is information, in whatever form, not generally known or readily available to the public, and proprietary and confidential to the disclosing party, including, with respect to Rebundle, the Rebundle Data and all non-public features of the Product and Service; and with respect to Customer, Customer Data. Confidential Information does not include any information that was known to the receiving party prior to the time of disclosure, acquired by the receiving party in a manner that does not violate the legal rights of any third party or otherwise becomes publicly available after disclosure other than by action of the receiving party. Notwithstanding the foregoing, we reserve the right at all times to disclose any information as necessary to satisfy any Applicable Law, legal process or governmental request. You agree not to publicly disseminate information regarding the performance of the Service (which is deemed Rebundle’s Confidential Information).
- What We Own
This is a subscription agreement for access to and use of the Service. You acknowledge that you are obtaining only a limited right to use the Service and that irrespective of any use of the words “purchase”, “sale” or similar terms in this Agreement, no ownership rights are transferred to you under this Agreement. As between you and Rebundle, you acknowledge and agree that we own the Service (including the Rebundle Technology) and the copyrights, trademarks, service marks, trade names, trade secrets, and other intellectual and proprietary rights throughout the world associated with Rebundle, the Product and the Service (with the exception of Customer Data).
- What You Own
As between Rebundle and you, Rebundle acknowledges and agrees that you own the Customer Data, the Customer Properties, and all content contained within the Customer Properties (excluding any Rebundle Technology) and your copyrights, trademarks, service marks, trade names, trade secrets, and other intellectual and proprietary rights with respect to your products and services. Without limiting the generality of Section 4(A), you grant to Rebundle and our third party providers (including any Third Party Services), under all of your applicable intellectual property rights, a worldwide, non-exclusive, royalty-free, non-transferable, sublicensable license to use, reproduce, distribute, modify, perform and display the Customer Data solely in conjunction with the provision of the Service under this Agreement. We agree not to disclose, disseminate, or make available Customer Data to third parties other than as needed to perform the Service or as otherwise provided in this Agreement. Additionally, you grant us the right and license to use your trade names, trademarks, service marks, trade dress, logos and other rights in indicia to identify you as a Rebundle customer.
- Suggestions and Feedback
We welcome and encourage suggestions for improvements and other feedback related to the Product (“Feedback”). You may submit Feedback by emailing us to firstname.lastname@example.org or by other means of communication. Any Feedback you submit to us will be considered non-confidential and non-proprietary to you. By submitting Feedback to us, you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide, assignable, sublicensable, transferable license to use, modify, prepare derivative works of, publish, distribute and sublicense the Feedback, and you irrevocably waive, and cause to be waived, against us or our users any claims and assertions of any moral rights contained in such Feedback.
- Rebundle Data
We may monitor use of the Service by all of our customers and use the data gathered in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Service or to support benchmarking or similar features of the Service. You agree that we may use and publish the Rebundle Data, provided that such information does not incorporate any Customer Data in identifiable form or identify you. We retain all intellectual property rights in the Rebundle Data.
THE SERVICE IS PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER REBUNDLE NOR OUR SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. REBUNDLE MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR THAT THE SERVICE WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE. REBUNDLE DOES NOT GUARANTEE THAT ITS SECURITY MEASURES WILL BE ERROR-FREE AND REBUNDLE WILL NOT BE RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS TO THE SERVICE OR ANY CUSTOMER DATA DUE TO REASONS BEYOND OUR REASONABLE CONTROL. REBUNDLE WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CUSTOMER PROPERTIES OR THIRD-PARTY SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS OR TO THESE ITEMS BY THE SERVICES), OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CUSTOMER BASED UPON THE SERVICE (INCLUDING CHANGES TO CUSTOMER PROPERTIES). THE DISCLAIMERS IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW WILL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.
You agree to defend, indemnify and hold harmless Rebundle and its Affiliates, managers, officers, directors, employees, agents, successors and assigns (collectively, the “Rebundle Indemnified Parties”) from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to (a) your breach of any term or condition of this Agreement; (b) your access to and use of the Service or any Third Party Service; or (c) any claim that your provision of Customer Data to us violates the rights of any third party (including, without limitation, any intellectual property or privacy right). We will provide you with notice of any claim, suit or action from which you must indemnify us.
- LIMITATION OF LIABILITY
YOUR REMEDIES AGAINST THE REBUNDLE INDEMNIFIED PARTIES IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, IN TORT, OR OTHERWISE, SHALL BE EXCLUSIVELY AS SET FORTH HEREIN. IN NO EVENT UNDER ANY THEORY SHALL THE REBUNDLE INDEMNIFIED PARTIES, IN THE AGGREGATE, BE RESPONSIBLE TO YOU UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY DAMAGES OF ANY TYPE IN AN AMOUNT IN EXCESS OF THE LESSER OF (A) ONE THOUSAND DOLLARS (US$1,000.00), OR (B) THE AGGREGATE AMOUNT OF SUBSCRIPTION FEES ACTUALLY PAID BY YOU TO US UNDER THIS AGREEMENT FOR THE TWELVE MONTHS IMMEDIATELY PRECEDING THE ACT,
OMISSION, ERROR OR BREACH GIVING RISE TO SUCH LIABILITY. IN NO EVENT UNDER ANY THEORY SHALL ANY REBUNDLE INDEMNIFIED PARTY BE LIABLE TO YOU FOR INCIDENTAL, INDIRECT,
SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGE FOR LOSS OF PROFITS OR REVENUE OR ANY OTHER ECONOMIC LOSS, NOTWITHSTANDING THAT ANY REBUNDLE INDEMNIFIED PARTY OR YOU MAY HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. UNDER NO CIRCUMSTANCES SHALL ANY FAILURE OF ANY REMEDY OF ITS ESSENTIAL PURPOSE AFFECT THE FOREGOING LIMITATION OF LIABILITY.
- TERM AND TERMINATION
- Subscription Term
You agree to pay Subscription Fees as set forth in the Subscription Specifications for the entire Subscription Term. You cannot terminate the Subscription Term except as expressly permitted by Section 11(B). If no subscription start date is specified in the Subscription Specifications, your subscription starts when you first obtain access to the Service.
We may terminate this Agreement immediately if you breach any of its terms. You may terminate this Agreement at any time upon notice provided to us by email at email@example.com or, if available, through any unsubscribe process available through a Third Party Service used in connection with the Service.
- Effect of Termination.
Upon any termination of this Agreement your right to use the Service will terminate and you must promptly: (i) stop use of the Service; (ii) stop distributing any Rebundle Code that may be installed on any Customer Property; and (iii) delete (or, at our request, return) any and all copies of the Rebundle Code, any Documentation, and any other Rebundle Confidential Information in your possession, custody, or control. All sections of this Agreement which by their nature should survive termination will survive termination of this Agreement, including accrued rights to Subscription Fees for all periods of time prior to termination, confidentiality obligations, indemnification, warranty disclaimers, and limitations of liability.
- DISPUTE RESOLUTION AND BINDING INDIVIDUAL ARBITRATION
You and Rebundle agree that any and all claims, controversies or disputes between you and Rebundle relating to this Agreement or the Services (a “Dispute”), will be arbitrated by a neutral arbitrator who has the power to award the same individual damages and individual relief that a court can. ANY ARBITRATION UNDER THESE TERMS OF SERVICE WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, REPRESENTATIVE ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST REBUNDLE. If any provision of the arbitration agreement contained in this Section 12 is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration). For purposes of this Section 12, references to you and to Rebundle also include our respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Services.
- Pre-Filing Requirement to Attempt to Resolve Disputes
Before an arbitration is commenced, you or Rebundle agree to attempt to avoid the costs of formal dispute resolution by giving each other a full and fair opportunity to address and resolve a Dispute informally. Both parties recognize that this is an important requirement, and that breach of this requirement would be a breach of these Terms of Service. To provide this opportunity, before commencing any arbitration or suit, each party agrees to send to the other party a written Notice (“Notice”). Any Notice to Rebundle should be sent by email to firstname.lastname@example.org. Any Notice sent to you will be sent to the contact email or other address on file for your account. The Notice must: (i) include your name; (ii) provide detailed information sufficient to evaluate the merits of the claiming party’s individualized claim and for the other party to determine if an amicable resolution is possible; and (iii) set forth the specific relief sought, including whatever amount of money is demanded and the means by which the demanding party calculated the claimed damages. Both parties agree that they will attempt to resolve a dispute through an informal negotiation within sixty (60) days from the date the Notice is sent. After that sixty (60) day period and not before, either party may commence arbitration. Each party agrees that state courts in the City and County of San Francisco, California, or federal court for the Northern District of California, referenced below, may enter injunctive relief to enforce the pre-filing requirements of this paragraph, including an injunction to stay an arbitration that has been commenced in violation of this paragraph.
Prior the initiation by either party to this Agreement of any form of legal proceeding regarding any dispute arising from or in relation to this Agreement; other than where the same is necessary for a party to obtain immediate provisional relief in the form of an injunction to preserve confidential information, intellectual property or the status-quo otherwise; the Parties shall participate in private mediation of the dispute. Mediation may be initiated by either party asserting the existence of a dispute by issuing a written notice to the other demanding mediation and including a selection of at least three proposed mediators and three available dates for participation. The other party shall respond and either accept one of the selections and dates, or propose at least three alternative selections and dates, within seven (7) business days. Each proposed selection of mediators shall include at least one selection from the American Arbitration Association (“AAA”). If the party receiving the initial demand for mediation does not respond within that period of time, then the non-responding party shall be deemed to have declined to mediate. If the parties cannot agree upon a mediator and date within seven (7) business days after the sending of alternative selections by the party initially receiving the demand for mediation, then the parties shall submit to AAA governing procedure for Commercial Disputes for the assignment of a mediator to their dispute. All mediator fees shall be borne equally by the Parties. Any party refusing to mediate, including by failure to timely respond to a demand for mediation, shall lose any right to receipt of attorney or expert fees in any subsequent legal proceeding, including arbitration, arising from said dispute, whether initiated by the refusing party or the other.
- Agreement to Arbitration
THE PARTIES AGREE THAT ANY AND ALL CONTROVERSIES, CLAIMS, OR DISPUTES WITH ANYONE, WHETHER ARISING UPON AN INDIVIDUAL, GROUP, OR CLASS BASIS, ARISING OUT OF, RELATING TO, OR RESULTING FROM THIS AGREEMENT OR YOUR USE OF OUR SERVICES AND SHALL BE SUBJECT TO BINDING ARBITRATION UNDER THE ARBITRATION RULES SET FORTH IN THE FEDERAL ARBITRATION ACT (THE “RULES”) AND OTHERWISE PURSUANT TO DELAWARE SUBSTANTIVE LAW. THE PARTIES FURTHER UNDERSTAND THIS CONSENT TO ARBITRATION IS MUTUALLY APPLICABLE AND BINDING UPON BOTH PARTIES HERETO. EXCEPT WHERE OTHERWISE PROHIBITED BY A PROVISION OF APPLICABLE STATE OR FEDERAL LAW, 1) ANY AND ALL COSTS AND FEES OF ARBITRATION SHALL BE SPLIT EQUALLY BETWEEN THE PARTIES 2) THE PREVAILING PARTY SHALL BE ENTITLED TO AN AWARE OF ATTORNEY’S FEES UPON THE ISSUANCE OF A FINAL RULING AT THE CONCLUSION OF ARBITRATION, WHETHER ON AN INTERLOCUTORY OR FINAL EVIDENTIARY HEARING BASIS, AND 3) THE AAA RULES FOR RESOLUTION OF COMMERCIAL DISPUTES SHALL GOVERN.
IT IS AGREED THAT ANY ARBITRATION WILL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) AND THAT THE NEUTRAL ARBITRATOR WILL BE SELECTED IN A MANNER CONSISTENT WITH AAA’S NATIONAL RULES FOR THE RESOLUTION OF COMMERCIAL DISPUTES, A COPY OF WHICH MAY BE VIEWED HERE: https://www.adr.org/sites/default/files/CommercialRules_Web.pdf. IT IS AGREED THAT THE ARBITRATOR SHALL HAVE THE POWER TO DECIDE ANY MOTIONS BROUGHT BY ANY PARTY TO THE ARBITRATION, INCLUDING MOTIONS FOR SUMMARY JUDGMENT AND/OR ADJUDICATION, AND MOTIONS TO DISMISS AND DEMURRERS. IT IS ALSO AGREED THAT THE ARBITRATOR SHALL HAVE THE POWER TO AWARD ANY REMEDIES AVAILABLE UNDER APPLICABLE LAW, AND THAT THE ARBITRATOR SHALL AWARD ATTORNEYS’ FEES AND COSTS TO THE PREVAILING PARTY EXCEPT AS PROHIBITED BY LAW OR OTHERWISE SET FORTH IN THIS AGREEMENT. IT IS AGREED THAT THE ARBITRATOR SHALL ADMINISTER AND CONDUCT ANY ARBITRATION IN A MANNER CONSISTENT WITH THE RULES AND THAT TO THE EXTENT THAT THE AAA’S NATIONAL RULES FOR THE RESOLUTION OF COMMERCIAL DISPUTES CONFLICT WITH THE RULES, THE RULES SHALL TAKE PRECEDENCE. IT IS AGREED THAT THE DECISION OF THE ARBITRATOR SHALL BE IN WRITING. IT IS AGREED THAT ANY ARBITRATION UNDER THIS AGREEMENT SHALL BE CONDUCTED IN SAN FRANCISCO, CALIFORNIA.
EXCEPT AS PROVIDED BY THE RULES AND THIS AGREEMENT, ARBITRATION SHALL BE THE SOLE, EXCLUSIVE AND FINAL PROCESS AND REMEDIAL MECHANISM FOR ANY DISPUTE BETWEEN THE PARTIES. ACCORDINGLY, EXCEPT AS PROVIDED FOR BY THE RULES AND THIS AGREEMENT, NO PARTY WILL BE PERMITTED TO PURSUE COURT ACTION REGARDING CLAIMS THAT ARE SUBJECT TO ARBITRATION OTHER THAN FOR ENFORCEMENT OF AN ARBITRATION AWARD/JUDGMENT OR TO COMPEL COMPLIANCE WITH SUBMISSION TO ARBITRATION. THIS MEANS THAT BY CONSENT TO THIS AGREEMENT, EACH OF THE PARTIES UNDERSTAND AND AGREE THAT THEY MAY NOT PURSUE ANY ACTION IN COURT UPON A REPRESENTATIVE OR CLASS BASIS, NOR MAY THE ARBITRATOR PRESIDE OVER ANY CLASS OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR WILL NOT HAVE THE AUTHORITY TO DISREGARD OR REFUSE TO ENFORCE ANY LAWFUL COMPANY POLICY, AND THE ARBITRATOR SHALL NOT ORDER OR REQUIRE COMPANY TO ADOPT A POLICY NOT OTHERWISE REQUIRED BY LAW. NOTHING IN THIS AGREEMENT OR IN THIS PROVISION IS INTENDED TO WAIVE THE PROVISIONAL RELIEF REMEDIES AVAILABLE UNDER THE RULES.
- Administrative Relief
IT IS UNDERSTOOD THAT THIS AGREEMENT DOES NOT PROHIBIT EITHER PARTY FROM PURSUING AN ADMINISTRATIVE CLAIM WITH A LOCAL, STATE OR FEDERAL ADMINISTRATIVE BODY. THIS AGREEMENT DOES, HOWEVER, PRECLUDE YOU FROM PURSUING COURT ACTION REGARDING ANY SUCH CLAIM.
- Injunctive Relief
IN ADDITION TO THE FOREGOING BASES OF RELIEF AND ORDERS WHICH THE ARBITRATOR SHALL BE EMPOWERED TO GRANT AND ISSUE, THE ARBITRATOR SHALL HAVE THE POWER TO ISSUE ANY AND ALL FORMS OF INJUNCTIVE RELIEF, INCLUDING AS THE SAME MAY RELATE TO PUBLIC INJUNCTIVE RELIEF AND PUBLIC INTEREST, TO ALL EXTENTS THAT THE SAME COULD BE AWARDED IN ANY INDIVIDUAL LAWSUIT.
- Voluntary Nature of Agreement
THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY ARE CONSENTING TO THIS AGREEMENT VOLUNTARILY AND WITHOUT ANY DURESS OR UNDUE INFLUENCE BY REBUNDLE OR ANYONE ELSE. EACH FURTHER ACKNOWLEDGES AND AGREES THAT EACH HAS CAREFULLY READ THIS AGREEMENT AND THAT EACH HAS ASKED ANY QUESTIONS NEEDED FOR EACH TO UNDERSTAND THE TERMS, CONSEQUENCES AND BINDING EFFECT OF THIS AGREEMENT AND FULLY UNDERSTAND IT, INCLUDING THAT EACH IS WAIVING THE RIGHT TO A JURY TRIAL. FINALLY, EACH AGREES THAT THEY HAVE BEEN PROVIDED AN OPPORTUNITY TO SEEK THE ADVICE OF AN ATTORNEY OF THEIR CHOICE BEFORE SIGNING THIS AGREEMENT, THAT THE AGREEMENT IS NOT TO BE DEEMED AS DRAFTED BY ONE PARTY AS AGAINST ANY OTHER AND THAT THE PROVISIONS OF CALIFORNIA CIVIL CODE § 1654 OR APPLICABLE PROVISIONS OF LAW REGARDING AMBIGUITIES ARE WAIVED.
- Enforcement Costs
In the event that either of the Parties initiates legal action by local, state or federal court and unless such court, and if applicable any relevant appeals body, finds that this arbitration agreement is inapplicable or subject to exception allowing such action, then the party who so initiated legal action will be liable for paying the attorneys’ fees and costs of the other party insomuch as they are related to enforcing this agreement to arbitrate. Similarly, if one party fails to follow the Informal Resolution Procedure above and initiates arbitration, then such party will be liable for paying the attorney’s fees and costs of the other party insomuch as they are related to enforcing the agreement to first participate in the Informal Resolution Procedure.
- Opt Out
You may reject the mandatory arbitration provisions of this Section 12, in which case only a court may be used to resolve any Dispute. To reject this provision, you must send us an opt-out notice (the “Opt Out Notice”) within thirty (30) days the date the Subscription Term begins. Any Opt Out Notice must be sent to use by email at email@example.com. This is the only way of opting out of the mandatory arbitration provisions of this Section 12. Opting out will not affect any other aspect of these Terms of Service or the Services, and will have no effect on any other or future agreements you may reach to arbitrate with us.
- Court Proceedings
Subject to and without waiver of the mandatory arbitration provisions of this Section 12, you agree that any judicial proceedings will be brought in and you hereby consent to the exclusive jurisdiction and venue in the state courts in the City and County of San Francisco, California, or federal court for the Northern District of California, and you any jurisdictional, venue or inconvenient forum objections to such courts.
- CHOICE OF LAW AND VENUE
This Agreement and any Dispute shall be governed by and construed in accordance with the Federal Arbitration Act, as set forth above, and the laws of the State Delaware, without regard to conflicts of law principles of the State of Delaware or any other jurisdiction.
- GENERAL TERMS
This Agreement contains the entire understanding between Rebundle and you relating to the subject matter herein and supersedes all prior oral or written agreements between us. In the event of a conflict between the terms of these Terms of Service and any Subscription Specifications, the terms of the Subscription Specifications shall control, but only as to the subscription to which those Subscription Specifications relate. You may not assign or transfer your rights and benefits under this Agreement without our prior written consent, but we may assign or transfer this Agreement without restriction. Except as set forth in this Agreement, nothing in this Agreement shall be deemed to confer any rights or benefits on any third party. No waiver, amendment, modification or addition to this Agreement shall be valid unless in writing and signed by both you and us. In the event any provision of this Agreement is determined to be invalid by a court of competent jurisdiction, such determination shall in no way affect the validity or enforceability of any other provision herein. To the extent allowed by Applicable Law, you agree that you will bring any claim or cause of action arising from or relating to your access or use of the Service within two (2) years from the date on which such claim or action arose or accrued or such claim or cause of action will be irrevocably waived. This Agreement does not create a partnership, joint venture, employment or agency relationship between Rebundle and Customer or between Rebundle and any Authorized User. The relationship between Rebundle and you created by this Agreement is a non-exclusive relationship.
- INFORMATION OR COMPLAINTS
If you have a question or complaint regarding the Service, please send an e-mail to firstname.lastname@example.org.
“Affiliate” means any person or entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, “control” means direct or indirect ownership or control of more than 50% of the voting interests or voting power of the subject entity.
“Applicable Law” means all applicable local, state, federal, and international laws, rules, and regulations.
“Authorized User” means an employee, representative, consultant, contractor or other agent of Customer who is authorized to access and use the Service for Customer’s benefit.
“Customer Content” means text, images, videos or other content for the Customer Property that Customer selects for use with the Service.
“Customer Data” means the data, information and content provided by you to us, including through Third Party Service providers, to enable provision of the Service, including, without limitation (i) Customer Content; (ii) Submitted Data; and (iii) Visitor Data.
“Customer Property” means any web page located at a single domain/URL and its subdomains under your control that sends data to the Product. Unless otherwise specified in the Subscription Specifications, you may only use the Service on one Customer Property per subscription.
“Documentation” means any user instructions and help files that we make available to you as part of the Service, as may be updated from time to time by us.
“Rebundle Code” means the code developed and provided by Rebundle for use in connection with the Service. Rebundle Code may include the Rebundle application, server-side software, code installed on a Customer Property, together with any fixes, updates and upgrades provided to you.
“Rebundle Data” means statistical and use data collected by us pertaining to use of the Service.
“Rebundle Technology” means any and all Documentation, Rebundle Code, Rebundle Data and other technology, code, know-how, logos and templates (including in any Reports or output obtained from the Service) underlying the Service, and anything delivered as part of support or other services, and any updates, modifications or derivative works of any of the foregoing, including as may incorporate any Feedback.
“Subscription Fee” means the amount paid or payable by you for the Service.
“Subscription Term” means the period that begins on the date that you install or otherwise activate the Rebundle application or, if earlier, the date you otherwise start using any of the Services and ends on the effective date of your termination of this Agreement in accordance with Section 11.
“Submitted Data” means data uploaded, inputted or otherwise submitted by Customer to the Service, including content, data or other materials that you provide to the Service from third-party data providers or any Third Party Service.
“Third Party Service” means services delivered or performed by third parties related to the Service, or other online, web-based services, e-commerce platforms or other business application subscription service that interoperate with or are used in connection with the Service.
“Visitor” means any end user of a Customer Property.
“Visitor Data” means any and all data and information concerning the characteristics and activities of Visitors on the Customer Properties collected for Customer by the Service.
If you have any questions about this Agreement, please email us at email@example.com.
Last updated: August 17, 2021