Platform Use Agreement
Last updated: November 7, 2020
This LFX Platform Use Agreement (together with the documents defined herein, the “Agreement”) is a legal contract between (1) The Linux Foundation (“TLF”); and (2) you, the individual using the Platform or the Services (as applicable, “You”, “Your” or “Yourself”). If You use the Platform or the Services on behalf of any Projects and Organizations (each as defined herein) pursuant to Sections 1.4 and 1.5 below, then “You” also includes all such Projects and Organizations.
The Agreement governs Your use of the LFX Platform website and infrastructure (the “Platform”) and any and all services made available to You by TLF via the Platform (the “Services”) for the development, growth, support and sustainability of open source communities.
READ THE AGREEMENT CAREFULLY BEFORE BROWSING THIS WEBSITE, CREATING AN ACCOUNT, OR OTHERWISE USING THE PLATFORM OR THE SERVICES. USING ANY PART OF THE PLATFORM INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THE AGREEMENT. YOU CANNOT USE THE PLATFORM IF YOU DO NOT ACCEPT THE AGREEMENT.
THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH TLF. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
1. Platform and Services.
1.1. Overview. TLF makes the Platform available to You in order to enable You to access the Services and interact with third parties via the Services. Your use of the Platform and the Services is subject to Your compliance with the terms of this Agreement. You are solely responsible for obtaining and maintaining all equipment and services needed for Your own access to and use of the Platform, as well as any for paying any related charges.
1.3. Accounts. To make use of many of the Services on the Platform, You will need to create a Platform account for Yourself (an “Account”). You may only create an Account for Yourself through the interface provided by TLF. You may not create Accounts for others or use an automated process to create Accounts. You may not create an Account if You are under the age of 18. You may not share Your Account with others; each individual person who uses the Platform must create their own Account. You are responsible for ensuring the security of Your user login credentials, including the use of secure passwords. You will promptly notify TLF if You become aware of any actual or likely misuse of Your Account. You acknowledge and consent to TLF using and sharing Your information to prevent fraud. Some of the information requested during registration of Your Account is mandatory and You must provide this information in order to create an Account; other information is optional and You may choose whether to provide it. Creation of an Account may be subject to requests for more information, review and/or approval by TLF in its sole discretion. In order to provide an integrated Platform and collection of related Services, Your Account may be used across the Platform and may incorporate information received through Your use of the different Services.
1.4. Projects. Within the Platform, You may be permitted to register one or more open source projects to participate in the Platform and the Services (each, a “Project”). Some Projects are managed by TLF and receive support from TLF separately from the Platform (each, a “TLF Project”) while others are not (each, a “Community Project”). One or more Accounts may be associated with the Project as a “maintainer” on the Platform (each, a “Project Maintainer”). TLF is authorized, but does not have the obligation or responsibility, to make determinations about who will be registered as a Project Maintainer for Projects on the Platform. By registering as a Project Maintainer, You represent and warrant that You have the authority and capacity to accept this Agreement on behalf of the Project; to make the commitments and license grants set forth herein; and to take the actions via the Platform and the Services that You choose to take; in each case, on behalf of the corresponding Project(s). In order to register a Project with the Platform and the Services, or to register as a Project Maintainer for a Project, You may be required to authenticate using credentials managed by TLF and/or third party sites in order to (1) demonstrate your authorization to be listed as the Project Maintainer for that Project, and (2) make use of integrations between the Platform and third party sites.
1.5. Organizations. Within the Platform, You may be permitted to register the corporation, company or other organization that You represent, such as a company that You own or that employs You, in each case only where You have authority to act on behalf of that organization (each, an “Organization”). One or more Accounts may be associated with the Organization as a “representative” on the Platform (each, an “Organization Representative”). TLF may, but does not have the obligation or responsibility, to make determinations about who will be registered as an Organization Representative for Organizations on the Platform. By registering as an Organization Representative, You represent and warrant that You have the authority and capacity to accept this Agreement on behalf of the Organization; to make the commitments and license grants set forth herein; and to take the actions via the Platform and the Services that You choose to take; in each case, on behalf of the corresponding Organization(s).
1.6. Not a Backup or Storage Site. The Platform is intended solely to provide You and third parties with access to and use of the Services. It is not intended for use as a data backup or storage site. You are solely responsible for ensuring that You maintain copies of any of Your Content (as defined herein). Except as may be required under applicable data privacy or other laws and regulations, TLF is under no obligation to provide You with access to any data or other materials stored on the Platform or to ensure their reliability or availability.
1.7. Modifications. TLF may alter the Platform, Services and Content and/or may choose to modify, suspend or discontinue the Platform and Services at any time and without notifying You. TLF may also change, update, add or remove provisions (collectively, “Modifications”) of the Agreement from time to time. TLF will make any modified versions of the Agreement available by posting them on the Website. If You object to any such Modifications, Your sole recourse shall be to cease all use of the Platform. Continued use of any part of the Platform following notice of any such Modifications indicates You acknowledge and agree to be bound by the Modifications. The Agreement may be superseded by expressly-designated legal notices or terms located on particular portions of the Platform. These expressly-designated legal notices or terms are incorporated into the Agreement and supersede the provision(s) of these Terms that are designated as being superseded.
2. Term and Termination.
2.1. Term. The Agreement shall commence as of the date that You accept the Agreement by creating an Account or (if earlier) by otherwise making use of the Platform or the Services, and shall continue until terminated as set forth herein.
2.2. Termination by You. You may terminate this Agreement at any time by closing Your Account and ceasing all subsequent use of the Platform and the Services.
2.3. Termination by TLF. The Agreement shall be terminated without notice effective upon Your breach of its terms. TLF may terminate this Agreement at any time by closing Your Account; by otherwise disabling Your access to the Platform or the Services; or by attempting to provide You with notice of termination.
2.4. Effect of Termination. Upon the termination of the Agreement, You shall cease all subsequent use of the Platform and the Services and shall delete or destroy any copies You have made of TLF Content. If the Agreement was terminated by You without breach, then You may re-accept the Agreement at a later time and create a new Account. If the Agreement was terminated by TLF, then You shall not attempt to circumvent termination by creating a separate Account using different identifying information.
2.5. Survival. Sections 1.6, 2.4, 2.5, 4.1, 4.3-4.6, and 5-12 of this Platform Use Agreement shall survive the termination of the Agreement. Any and all proprietary rights, disclaimers of warranties, representations made by You, indemnities, and limitations of liability set forth in the Service-Specific Use Terms shall survive the termination of the Agreement.
3. Acceptable Use.
3.1. Acceptable Use Policy. You shall only use the Platform and Services in accordance with the AUP.
3.2. Codes of Conduct. As used herein, a Project’s “Code of Conduct” shall mean (a) the code of conduct adopted and publicly designated by a project, or (b) if it has not adopted one, the most recent version of the Contributor Covenant available at https://www.contributor-covenant.org/. When interacting with a Project via the Platform and any of the Services, Your interactions shall conform to the Project’s Code of Conduct.
3.3. Suspension. If You use the Platform or Services in a manner that TLF believes in its sole discretion (a) is contrary to the AUP or an applicable Project’s Code of Conduct, or (b) is harmful to the Platform, the Services, or Projects or other users of the Platform or Services, then TLF may suspend Your Account or Your use of the Platform or any Services.
4. Intellectual Property Rights.
4.1. Contributions of Content to Projects. Code, documentation or other content that is contributed to Projects’ code repositories shall be licensed pursuant to the applicable contribution policies and/or agreements adopted by such Projects, and shall not be subject to this Agreement.
4.2. TLF Content. As used herein, “Content” means text, data, information, software, graphics, videos, photographs and other materials. Content provided to You via the Platform and the Services (“TLF Content”) shall remain owned by TLF or its licensors, as applicable. Subject to Your compliance with the Agreement and all applicable laws and regulations, TLF grants You a limited, personal, non-exclusive, non-transferable license to use and display the TLF Content. You must retain any copyright and other proprietary notices on any copies You make of TLF Content. All rights in TLF Content not expressly granted herein are reserved.
4.3. Your Content. Content that You post to the Platform (“Your Content”) shall remain owned by You. You hereby grant TLF an irrevocable, perpetual, transferable, non-exclusive, fully-paid, worldwide, royalty-free license (sublicensable through multiple tiers) to (a) use, distribute, reproduce, modify, adapt, publish, translate, publicly perform, and publicly display Your Content (or any modification thereto), in whole or in part, in any format or medium now known or later developed; and (b) use (and permit others to use) Your Content in any manner and for any purpose (including, without limitation, commercial purposes) that TLF deems appropriate in its sole discretion (including, without limitation, to incorporate Your Content or any modification thereto, in whole or in part, into any technology, product, or service). TLF may, but is not obligated to, pre-screen Your Content or monitor any area of the Platform through which Your Content may be submitted. TLF is not required to host, display, or distribute any of Your Content on or through the Platform and may remove at any time or refuse any of Your Content for any reason. TLF is not responsible for any loss, theft, or damage of any kind to any of Your Content.
4.4. Your Marks. When You upload Your Projects’ or Organizations’ names, logos and other trademarks to the Platform (collectively, “Your Marks”), You hereby grant to TLF a non-exclusive, royalty-free, worldwide license to reproduce and display Your Marks via the Platform and the Services in connection with the corresponding Projects and Organizations. All goodwill arising from such use shall inure to the benefit of the holders of such marks. You acknowledge that TLF shall use the logo image files that You provide to TLF via the Platform and the Services, and accordingly TLF shall not be responsible for ensuring that the logo image files You upload are compliant with or conformant to any trademark usage guidelines that You may have in place regarding Your Marks. For the avoidance of doubt, Your Marks shall not include trademarks that are owned by TLF.
4.5. TLF and Third Party Trademarks. This Agreement does not grant You any rights to use the trademarks of TLF or of third party Organizations or Projects displayed via the Platform or the Services. Use of TLF’s trademarks is subject to TLF’s Trademark Usage Guidelines, a copy of which can be found at https://www.linuxfoundation.org/trademark-usage/, as updated from time to time. Other third party’s trademarks are subject to their own trademark usage policies.
4.6. Feedback. If You send or transmit any communications, comments, questions, suggestions, or related materials to TLF whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to any part of the Platform, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign to TLF all right, title, and interest in, and TLF is free to use, without any attribution or compensation to You, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. To the extent the foregoing assignment of rights, title and interest in and Your Feedback is prohibited by applicable law, You hereby grant TLF a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license (including the right to sublicense through multiple tiers) to (a) to fully use, practice and exploit those non-assignable rights, title and interest, including, but not limited to, the right to use, reproduce, adapt, publicly perform, publicly display, modify, prepare derivative works, publish, transmit and distribute Your Feedback, or any portion thereof, in any form, medium or distribution method now known or hereafter existing, known or developed, for any purpose, and to develop, manufacture, have manufactured, license, market, and sell, directly or indirectly, products and services using such Feedback; and (b) authorize any such use by others of Your Feedback, or any portion thereof, in the same manner. You understand and agree that TLF is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and You have no right to compel such use, display, reproduction, or distribution.
5. Data Privacy; Compliance with Laws.
5.2. Compliance with Laws. You shall comply with all laws and regulations that are applicable to Your use of the Platform and the Services, including without limitation all United States export controls, import controls, sanctions, anti-boycott, money laundering, data privacy and otherwise. Without limiting the generality of the foregoing, You shall be solely responsible for ensuring that Your use of the Platform and the Services is compliant with applicable laws, and You shall not make use of the Platform and the Services in any fashion that would be contrary to applicable laws (for instance, to receive access to certain technology or payments if such would be prohibited under applicable laws). TLF controls and operates the Platform from the United States of America and the entirety of this Platform may not be appropriate or available for use in other locations. If You use the Platform or any part of the Platform outside the United States of America, You are solely responsible for following applicable local laws.
5.4. Links to Third-Party Sites. TLF sometimes provides links from the Platform to third-party websites. If You use these links, You will leave the Platform. TLF provides these links to You as a convenience, and TLF does not verify, make any representations or take responsibility for such third-party sites, including, without limitation, the truthfulness, accuracy, quality or completeness of the content, services, links displayed and/or any other activities conducted on or through such third-party sites. Therefore, unless specifically stated on TLF’s website or elsewhere in the Platform, TLF does not endorse or make any representations about such websites or any information, material or results that may be obtained from using them. If You decide to access any of the third-party websites linked to from the Platform, You do this entirely at Your own risk and You must follow the privacy policies and terms and conditions for those third-party websites. YOU AGREE THAT TLF WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD PARTY.
6. Your Representations and Warranties.
6.1. Authority. You represent that You are at least 18 years of age, and that You have all necessary authority and capacity to enter into this Agreement on Your own behalf, and or on behalf of any and all Projects and Organizations on whose behalf You are using the Platform and the Services.
6.2. Your Account. You represent and warrant that all information You provide to TLF in connection with Your Account and Your use of the Services shall be true, complete, accurate and not misleading.
6.3. Your Content and Your Trademarks. You represent and warrant that You have all necessary rights, title and licenses to make the license grants specified herein, with regards to (a) all of Your Content, and (b) all of Your Trademarks. You represent and warrant that Your Content and Your Trademarks shall not violate the Acceptable Use Policy or any applicable Projects’ Codes of Conduct.
6.4. Taxes. You are solely responsible for the payment of any and all taxes relating to Your use of the Platform and the Services, or to Your receipt of anything of value in connection therewith. You represent and warrant that under no circumstances will You take, or cause TLF or any TLF-related Project to take, any action on behalf of Yourself or any Project that is inconsistent with the tax-exempt status or purpose of TLF.
6.5. Third party services. Where use of the Platform or any Service requires You to visit or otherwise make use of a third-party service, such as by visiting a third party service provider’s website, You represent and warrant that You will comply with the terms and conditions applicable to use of that third party service.
6.6. Service-Specific Use Terms. The Service-Specific Use Terms may specify additional representations and warranties by You that are applicable to Your use of particular Services. If so, then by using such Services You hereby make such representations and warranties to TLF.
THE PLATFORM AND THE SERVICES ARE PROVIDED ‘AS IS’, ‘AS-AVAILABLE’ AND “WITH ALL FAULTS”, WITHOUT WARRANTY OF ANY KIND. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PLATFORM AND THE SERVICES IS WITH YOU, AND YOUR USE OF THE PLATFORM AND THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. TLF DISCLAIMS ALL WARRANTIES AND MAKES NO WARRANTIES, AND YOU ACKNOWLEDGE THAT YOU RECEIVE NO WARRANTIES WITH RESPECT TO THE PLATFORM AND THE SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE. TLF PROVIDES NO GUARANTEE OF SUPPORT FOR THE PLATFORM OR THE SERVICES; NO COMMITMENT FOR A PARTICULAR SERVICE LEVEL, AVAILABILITY, UPTIME, RESPONSIVENESS OR CORRECTNESS; AND NO COMMITMENT THAT THE PLATFORM AND THE SERVICES WILL BE ERROR-FREE, FREE FROM VULNERABILITIES OR DEFECTS, UNINTERRUPTED, TIMELY, SECURE, OR THAT THE PLATFORM OR THE SERVICES WILL MEET YOUR REQUIREMENTS. TLF IS NOT RESPONSIBLE FOR ANY LOST OR MODIFIED CONTENT; YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF THE PLATFORM AND THE SERVICES, AND FOR MAKING ANY NECESSARY BACKUPS OF YOUR CONTENT. TLF MAKES NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM OR THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE PLATFORM OR THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE PLATFORM OR THE SERVICES SHALL CREATE ANY WARRANTY. TLF DISCLAIMS ALL EQUITABLE INDEMNITIES.
8. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TLF AND ITS SERVICE PARTNERS, LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES SHALL NOT BE LIABLE FOR ANY LOSS OF DATA, REVENUE, PROFITS, GOODWILL, USE OR OTHER ECONOMIC ADVANTAGE, OR FOR ANY DAMAGES, INCLUDING DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, EXTRAORDINARY, EXEMPLARY OR PUNITIVE DAMAGES, ARISING OUT OF OR RELATING TO THE PLATFORM OR THE SERVICES OR ANY USE THEREOF, OR THIS AGREEMENT OR ANYTHING RELATING HERETO. THE FOREGOING LIMITATIONS OF LIABILITY ARE AN ESSENTIAL BASIS OF TLF’S DECISION TO OFFER THE PLATFORM AND THE SERVICES, AND SHALL APPLY REGARDLESS OF THE LEGAL THEORY UPON WHICH DAMAGES MAY BE CLAIMED; REGARDLESS OF WHETHER A PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; AND REGARDLESS OF WHETHER THE FOREGOING LIMITATIONS OF LIABILITY CAUSE ANY REMEDY TO FAIL IN ITS ESSENTIAL PURPOSE.
9.1. Indemnification. You agree to indemnify, defend and hold harmless TLF and its directors, officers, employees, agents and representatives (the “Indemnified Parties”) from and against any and all costs, fees, damages, losses, liabilities, expenses, awards, claims, actions of any kind penalties, and expenses, including attorneys’ fees (collectively, “Losses”) arising from or relating to (a) Your use of the Platform and the Services; (b) Your breach of the Agreement; (c) any claims that Your Content or Your Trademarks infringe or misappropriate any third party’s intellectual property rights, or that You violate any data privacy rights or other rights of a third party; or (d) Your violation of any applicable laws or regulations. TLF reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification hereunder and, in such case, You agree to cooperate with TLF’s defense of such claim.
9.2. Service-Specific Use Terms. The Service-Specific Use Terms may specify additional indemnification obligations by You that are applicable to Your use of particular Services. If so, then by using such Services You hereby agree to such indemnification obligations.
10. Reports of Intellectual Property Infringement.
10.1. TLF respects the intellectual property rights of others and encourage You to do the same. Accordingly, TLF has a policy of removing Content that violates intellectual property rights of others, suspending access to the Platform or the Services (or any portion thereof) to any user who uses the Platform or the Services in violation of someone’s intellectual property rights, and/or terminating in appropriate circumstances the account of any user who uses the Platform or the Services in violation of someone’s intellectual property rights.
10.2. Pursuant to Title 17 of the United States Code, Section 512, TLF has implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If You believe Your copyright or other intellectual property right is being infringed by a user of the Platform, please provide written notice to TLF’s agent for notice of claims of infringement: Legal Department, The Linux Foundation, 548 Market Street, PMB 57274, San Francisco, CA 94104-5401, Phone: 415-723-9709, Email: email@example.com. Unless the notice pertains to copyright or other intellectual property infringement, TLF’s agent will be unable to address the listed concern. To be sure the matter is handled promptly, Your written notice must:
- Contain Your physical or electronic signature;
- Identify the copyrighted work or other intellectual property alleged to have been infringed;
- Identify the allegedly infringing material in a sufficiently precise manner to allow TLF to locate that material;
- Contain adequate information by which TLF can contact You (including postal address, telephone number, and e-mail address);
- Contain a statement that You have a good faith belief that use of the copyrighted material or other intellectual property is not authorized by the owner, the owner’s agent or the law;
- Contain a statement that the information in the written notice is accurate; and
- Contain statement, under penalty of perjury, that You are authorized to act on behalf of the copyright or other intellectual property right owner.
11.2. Severability. If any provision of the Agreement, or any portion thereof, is held to be invalid and unenforceable, then the remainder of the Agreement shall nevertheless remain in full force and effect.
11.3. Waiver. TLF’s failure or delay in exercising its rights under the Agreement shall not operate as a waiver of those rights or constitute a waiver of any prior, concurrent, or subsequent breach.
11.4. Choice of Law; Venue. The Agreement shall be interpreted and enforced in accordance with the Federal Arbitration Act, the laws of the State of California and applicable U.S. federal law, without reference to conflict of law provisions. Except for disputes subject to arbitration as described below, any dispute regarding the Agreement shall be subject to the sole jurisdiction of the federal or state courts located in San Francisco, California.
11.5. Assignment. You may not assign the Agreement without TLF’s prior written consent, and any purported assignment shall be null and void. TLF may assign the Agreement in its discretion.
11.6. Force Majeure. TLF shall not be liable for any delay, breach or failure to perform for reasons that are beyond its reasonable control.
11.7. Notices. TLF may deliver legal notices required or permitted under the Agreement by sending written notice to You, either by physical mail to the mailing address associated with Your Account, by electronic mail to the email address associated with Your Account, or by other notification to You within the Platform. You may deliver legal notices to TLF by physical mail to: The Linux Foundation, 548 Market Street, PMB 57274, San Francisco, California 94104-5401, Attn: LFX Platform Legal Notices.
12. DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER.
Please Read This Provision Carefully. It Affects Your Legal Rights.
This Dispute Resolution and Arbitration; Class Action Waiver provision (this “Provision”) facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between You and TLF. Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to You (such as TLF’s licensors, suppliers, dealers or third-party vendors) whenever You also assert claims against TLF in the same proceeding.
This Provision provides that all disputes between You and TLF shall be resolved by binding arbitration. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees). You may, however, opt-out of this Provision which means You would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). BOTH YOU AND TLF AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
12.1. Pre-Arbitration Claim Resolution. For all Disputes, whether pursued in court or arbitration, You must first give TLF an opportunity to resolve the dispute which is first done by emailing TLF at firstname.lastname@example.org the following information: (1) Your name, (2) Your address, (3) a written description of Your claim, and (4) a description of the specific relief You seek. If we do not resolve the dispute within 45 days after receiving Your notification, then You may pursue Your dispute in arbitration. You may pursue Your dispute in a court only under the circumstances described below.
12.2. Exclusions from Arbitration/Right to Opt Out. Notwithstanding the above, You or TLF may choose to pursue a dispute in court and not by arbitration if: (a) The dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt-out of this Provision by emailing TLF at email@example.com the following information: (1) Your name; (2) Your address; and (3) a clear statement that You do not wish to resolve disputes with TLF through arbitration. Either way, TLF will not take any decision You make personally. In fact, TLF promise that your decision to opt-out of this Provision will have no adverse effect on Your relationship with TLF. Any opt-out request received after the Opt-Out Deadline will not be valid and You must pursue Your dispute in arbitration or small claims court.
12.3. Arbitration Procedures. If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either You or TLF may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because the Platform and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or TLF may initiate arbitration in either California or the federal judicial district that includes Your billing address. In the event that You select the latter, TLF may transfer the arbitration to California so long as TLF agrees to pay any additional fees or costs which the arbitrator determines You incur as a result of the transfer.
Payment of Arbitration Fees and Costs – So long as You place a request in writing prior to commencement of the arbitration, TLF will pay all arbitration fees and associated costs and expenses. But, You will still be responsible for all additional fees and costs that You incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if You provide notice and negotiate in good faith with TLF as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that You are the prevailing party in the arbitration, You will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
12.4. Class Action Waiver. Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both You and TLF specifically agree to do so following initiation of the arbitration. If You choose to pursue Your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to You. Neither You, nor any other user of the Platform can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
12.5. Jury Waiver. You understand and agree that by accepting this Provision in these Terms, You and TLF are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, You and TLF might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that You would have if You went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived.
12.6. Severability. If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court.
12.7. Continuation. This Provision shall survive the termination of this Agreement, the termination of Your Account, or Your discontinued use of the Platform or the Services. Notwithstanding any provision in this Agreement to the contrary, TLF agrees that if TLF makes any change to this Provision (other than a change to the Notice Address), You may reject any such change and require TLF to adhere to the language in this Provision if a dispute between us arises.