Important- Please read these Terms carefully, as they contain an agreement to arbitrate and other important information regarding your legal rights, remedies, and obligations. The agreement to arbitrate requires (with limited exception) that you submit claims you have against us to binding and final arbitration, and further (1) you will only be permitted to pursue claims against deepmove on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding, and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
YOU MUST BE AT LEAST 18 YEARS OF AGE TO USE THIS SERVICE.
The Service(s) consist of an online wellness marketplace through which Instructors may offer Classes for sale to Students, and Students may purchase such Classes for themselves and for the benefit of their children. While deepmove strives to high standards of service, you acknowledge and agree that: (1) deepmove is not a party to any agreements entered into between Instructors and Students, (2) deepmove only provides certain tools to facilitate the search for, purchase, sale and provision of Classes, (3) Students contract for classes directly with Instructors (4) deepmove is not a broker, agent (except as expressly set forth below) or insurer, and (5) deepmove disclaims all liability for the conduct of Instructors, Students, or any other Users of the Service(s) or Classes. Different sections of the Service(s) and Terms affect Instructors and Students differently, so please be sure to read these Terms carefully.
Use of the Service(s)
“Class(es)” means any online or in-person class(es) submitted by an Instructor for sale on the Service(s).
“Instructor(s)” means an individual instructor or studio that completes deepmove’s account registration process to sell Classes through the Service(s).
“Student(s)” means an individual that completes deepmove’s account registration process to browse and/or purchase Classes through the Service(s).
“User” “you” or “your” means a person, organization or entity using the Service(s), including Students and Instructors.
Service(s) Description: deepmove’s Service(s) are an all-in-one wellness platform that allows you to access yoga, pilates, meditation, breath work and beyond from the comfort of your home. The Service(s) are designed for Students to find and book Classes and for Instructors to market, sell and conduct their Classes. As the provider of an online marketplace platform, deepmove does not own, create, sell, resell, control, or manage any Classes. deepmove is only responsible for: (i) providing the Service(s) as an online marketplace platform to facilitate the sale, purchase, and conduct of Classes, and (ii) serving as the limited agent of each Instructor for the purpose of accepting payments from a Student on behalf of the Instructor.
There are risks that you assume when dealing with other Users (including those who may be acting under false pretenses). You agree that all of these risks are ultimately borne by you, and not deepmove. deepmove does not control the behavior of Users or the quality of the Classes. As a result, deepmove cannot guarantee the authenticity, quality, safety, legality, or appropriateness of Classes that are conducted online or in-person.
Service(s) Changes: deepmove reserves the right to modify or discontinue, temporarily or permanently, the Service(s) (or any part thereof) with or without notice. You agree that deepmove will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service(s).
With regard to your use of the iOS version of the Service(s), you acknowledge and agree that (i) these Terms are an agreement between you and deepmove only, and not Apple, and (ii) deepmove, not Apple, is solely responsible for the Service(s) and content thereof. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service(s). In the event of any failure of the Service(s) to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Service(s) to you and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service(s). As between deepmove and Apple, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be the sole responsibility of deepmove, subject to the these Terms. You and deepmove acknowledge that, as between deepmove and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the Service(s) or your possession and use of the Service(s), including, but not limited to: (i) product liability claims; (ii) any claim that the Service(s) fails to conform to any applicable legal or regulatory requirement; and, (iii) claims arising under consumer protection or similar legislation. You and deepmove acknowledge that, in the event of any third party claim that the Service(s), or your possession and use of the Service(s), infringes that third party’s intellectual property rights, as between deepmove and Apple, deepmove, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by, and subject to, these Terms. You and deepmove acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as they relate to your license of the Service(s), and that, upon your acceptance of the Terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as they relate to your license of the Service(s) against you as a third party beneficiary thereof.
Basic Obligations: As an Instructor, you must provide deepmove with any information requested in order for deepmove to list your Classes through its Service(s), including but not limited to a description of the Classes and the price for the Classes. deepmove has sole discretion as to which Classes we list on the Services and we reserve the right to reject or remove any Classes from the Services for any reason. Additionally, deepmove has discretion to edit Class descriptions as needed to make them conform to our Service(s) standards. deepmove has sole discretion as to which Instructors may offer Classes on the Services and we reserve the right to reject any potential Instructor and remove or suspend any Instructor from the Services for any reason. As an Instructor, you will also be asked to provide certain qualification information along with your registration form, which shall include, without limitation, documentation relating to your certifications, licenses, education, professional experience, expertise, and/or training as a wellness practitioner and instructor. Your registration will be reviewed by deepmove and deepmove may request that you provide supplemental documentation or other qualification information relating to your wellness experience.
Standards: When you elect to become an Instructor on the Services, you agree to abide by all of our policies, which we may update from time to time. Those expectations include thoughtful and professional communications with our community and acting professionally. You agree to use the Service(s), including any messaging or chat functionality, in an appropriate manner. Inappropriate behavior that is not permitted on the Service(s) includes, but is not limited to: behavior intended to provoke, bully, demean, or cause harm to others, or to create conflict; any posts or content that deepmove, in its discretion, believes to be un-conducive to a respectful and welcoming community for all; posting online or speaking to the media on deepmove’s behalf without prior written authorization from deepmove; posts that deepmove, in its discretion, finds to be offensive or inappropriate based on race, sex, age, gender, sexual orientation, gender identity or expression, national origin, disability or medical condition, veteran status, or any other legally protected characteristic; derogatory, disparaging, or disrespectful comments about Students, Instructors, parents, other Users, or deepmove staff, even if the target is not identified by name; sharing any private material, communication, or information regarding other Users, including but not limited to their names, photos, conversations, emails, performance information, work product, or any other personal identifying information; posts that may be harmful to deepmove’s ongoing business operations; sharing content that contains or promotes hate speech, threats of violence, or the endangerment of children; and any other violation of deepmove’s community standards.
Additional Instructor Requirements: Each Instructor is solely responsible for obtaining all licenses and other permissions required to offer or provide any Classes, and deepmove assumes no responsibility for an Instructor's failure to obtain such licenses or permissions or to otherwise comply with any applicable laws, rules or regulations.
You understand and agree that deepmove is not an insurer, agent or employer for you as an Instructor. If a Student purchases any of your Classes, any agreement you enter into with such Student is between you and the Student, and deepmove is not a party thereto. Notwithstanding the foregoing, deepmove is authorized to serve as your limited agent purely for the purpose of accepting payments from Students on your behalf and transmitting such payments to you (minus our Fees). You acknowledge and agree that, as an Instructor, you are responsible for your own acts and omissions while using the Service(s).
Payments and Fees
General: Each Student agrees to pay all applicable fees for Classes (“Fees”) as set forth on the Services. All Fees are payable in United States Dollars at the time of purchase. You shall be responsible for all taxes and associated charges incurred or associated with the Service(s) other than U.S. taxes based on deepmove’s net income. deepmove currently uses third party payment processors for our electronic commerce. Our third party payment processor accepts payments through methods detailed on the applicable payment screen, which may include various credit cards and Stripe. Information that you supply to our payment processor (e.g., payment information, credit card numbers, billing addresses, etc.) is not stored by us or within our control, and is subject to the third party payment processor’s own privacy policies and terms and conditions. If a Student disputes any charges, as a Student, you must let deepmove know within thirty (30) days after the date of purchase for deepmove to determine, in its sole discretion, how to handle the dispute.
Instructor Payments and Refunds: Instructor shall sign up for a Stripe account prior to offering any Classes to Students. Unless otherwise agreed to by deepmove and an Instructor, Stripe will transfer the Fees to Instructor’s designated account for sales of Classes (or set of Classes, as applicable), minus deepmove’s service fees and payment processing charges (“deepmove Fees”), according to the schedule and policies detailed in our [LINK-PAYMENT PAGE]. deepmove has the sole discretion to act on behalf of the Student, and to request Stripe to refrain from transferring the Fees to Instructor, if Student reports that the Classes were not provided or adequately completed. This may include, but is not limited to, circumstances where an Instructor did not arrive (or was unreasonably tardy) for a Class or a Class could not be completed due to an Instructor’s technical issues that prevented Students from hearing and/or viewing the Class. deepmove will independently review such circumstances on a case-by-case basis, seeking input from the Student, the Instructor, and/or other Students participating in the Class in question, and may decide at its sole discretion to issue a refund to the Student. All determinations of deepmove with respect to a refund shall be final and binding on the Student and Instructor. deepmove’s general policy is that there will be no refunds.
Limited Payment Collections Agent: Each Instructor appoints deepmove as the Instructor’s limited payment collection agent solely for the purpose of accepting the Fees from Student. Each User agrees that payment of Fees by a Student to deepmove, as that Instructor’s limited payment collection agent, shall be considered the same as a payment made directly by such Student to the relevant Instructor and that the Instructor will provide the relevant Classes to the Student, as outlined on the Services, as if the Instructor had received payment directly. deepmove relies on Stripe to process all payments from students for specific content, and all payments owed to instructor for said paid content, less the deepmove fees.
Conditions of Using the Service(s)
deepmove Users must treat each other without bias or prejudice in all manners including, but not limited to, race, ethnicity, nationality, sexual orientation, religion, and gender identity. The following are additional terms that all Users must observe. deepmove Users who do not follow these terms will be removed from the Service(s).
- Offer Classes only in the areas in which Instructor has appropriate background, credentials, certifications or expertise;
- Teach Classes professionally, be prepared, begin on-time, and treat all Students with respect;
- Not teach Classes while impaired by alcohol or drugs;
- Respond promptly to questions and requests from deepmove and Students; and
- Communicate with Students and/or other Instructors in a professional manner, both in messages and in Classes.
- Ask questions of Instructors to clarify any missing details about Classes;
- Attend Classes for which you have registered (certain Classes may have a limit on the number of Students, so if you do not attend, someone else may miss a spot in the Class); and
- Engage in civil conversation, and speak and act with respect for different opinions.
All Users shall:
- Always show up for Class fully clothed (shirts required) and dress in an appropriate manner to help create a safe and comfortable environment; and
- Treat other Users and deepmove staff respectfully.
User Conduct: You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“content”) that you upload, post, publish or display (hereinafter, “upload”) or email or otherwise use via the Service(s). The following are examples of the kind of content and/or uses that are illegal or prohibited by deepmove. deepmove reserves the right to investigate and to take appropriate legal action against anyone who, in deepmove’s sole discretion, violates this provision, including without limitation, removing the offending content from the Service(s), suspending or terminating the account of such violators and reporting you to the law enforcement authorities.
You agree to not use the Service(s) to:
- email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of deepmove, is objectionable or which restricts or inhibits any other person from using or enjoying the Service(s), or which may expose deepmove or its Users to any harm or liability of any type;
- interfere with or disrupt the Service(s) or servers or networks connected to the Service(s), or disobey any requirements, procedures, policies or regulations of networks connected to the Service(s);
- violate any applicable local, state, national or international law, or any regulations having the force of law;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- harvest or collect email addresses or other contact information of other Users from the Service(s) by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
- advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
- further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
- obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service(s).
DEEPMOVE MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO, STUDENTS AND INSTRUCTORS, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON REGARDLESS OF WHETHER SUCH MEETINGS ARE SCHEDULED ON THE SERVICES. DEEPMOVE EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY USER OR OTHER THIRD PARTY. YOU ARE RESPONSIBLE FOR YOUR OWN SAFETY AND WELL-BEING. YOU SHALL NOT TAKE ANY CLASSES THAT ARE ABOVE YOUR LEVEL OR THAT MAY PRESENT YOU WITH ANY RISK OF INJURY. YOU SHALL NOT TAKE ANY CLASSES IF YOU HAVE A MEDICAL CONDITION OR INJURY THAT MAY AFFECT YOUR PERFORMANCE IN THE CLASS OR THAT MAY CAUSE FURTHER INJURY TO YOU OR OTHERS. YOU ASSUME ALL RISKS OF TAKING ANY CLASSES.
deepmove Ownership, Third Party Content and User Material
Service(s) Content, Software and Trademarks: You acknowledge and agree that the Service(s) may contain content or features (“Service(s) Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by deepmove, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service(s) or the Service(s) Content, in whole or in part, except that the foregoing does not apply to your own User Material (as defined below) that you legally upload to the Service(s). In connection with your use of the Service(s), you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by deepmove from accessing the Service(s) (including by blocking your IP address), you agree not to implement any measures to circumvent any such blocking (e.g., by masking your IP address or using a proxy IP address). Unless otherwise expressly authorized herein or in the Service(s), you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service(s), use of the Service(s), or access to the Service(s).
Any use of the Service(s) or the Service(s) Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service(s) are the property of deepmove, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by deepmove. You shall not violate any export control laws in your use of the Software.
The deepmove name and logos are trademarks and service marks of deepmove (collectively the “deepmove Trademarks”). Other deepmove, product, and service names and logos used and displayed via the Service(s) may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to deepmove. You should not interpret anything in these Terms or the Service(s) to mean that deepmove is in any way explicitly or implicitly giving you any license or right to use any of deepmove Trademarks displayed on the Service(s), without our prior written permission in each instance. All goodwill generated from the use of deepmove Trademarks is only for deepmove’s exclusive benefit.
Third Party Content: Under no circumstances will deepmove be liable in any way for any content or materials of any third parties (including Users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that deepmove may, but is not required to, pre-screen content, and deepmove and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service(s). Without limiting the foregoing, deepmove and its designees will have the right to remove any content that violates these Terms or that is deemed to be objectionable in deepmove’s sole discretion. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
User Material Transmitted Through the Service(s): With respect to the content or other materials you upload through the Service(s) or share with other Users or recipients (collectively, “User Material”), you represent and warrant that you own all right, title and interest in and to such User Material, including, without limitation, all copyrights and rights of publicity contained therein. You shall retain any intellectual property rights that you hold in your User Material, and DeepMove does not claim any ownership (copyright, trademark, or otherwise) over your User Material. By submitting, posting or otherwise uploading User Material on or through the Service(s) you give deepmove a worldwide, nonexclusive, perpetual, irrevocable, fully sub-licensable, royalty-free right and license as set below:
- with respect to User Material that you submit, post or otherwise transmit privately via the Service(s) (e.g., via User messages with other Users), the license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and publicly display such User Material for the sole purpose of enabling deepmove to provide you with the Service(s); and
- with respect to User Material that you submit, post or otherwise make publicly or generally available via the Service(s) (e.g., reviews), the license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform, and publicly display such User Material (in whole or part) worldwide via the Service(s) or otherwise, and/or to incorporate it in other works in any form, media, or technology now known or later developed for any legal business purpose.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service(s) (“Feedback”), provided by you to deepmove are non-confidential and deepmove will be entitled to the unrestricted use and dissemination of these Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that deepmove may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government or administrative requests; (b) enforce these Terms; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of deepmove, its Users and the public. You understand that the technical processing and transmission of the Service(s), including your content thereon, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
deepmove respects the intellectual property of others, and we ask our Users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify deepmove of your infringement claim in accordance with the procedure set forth below.
deepmove will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to deepmove’s Copyright Agent at firstname.lastname@example.org (Subject line: “DMCA Takedown Request”). You may also contact us by mail at: Deep Move, Inc.
855 El Camino Real Ste. 13A #137
Palo Alto, CA 94301.
To be effective, the notification must be in writing and contain the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Service(s), with enough detail that we may find it on the Service(s);
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and
- a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Counter-Notice: If you believe that your User Material that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Material, you may send a written counter-notice containing the following information to the Copyright Agent:
- your physical or electronic signature;
- identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within the Northern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, deepmove will send a copy of the counter-notice to the original complaining party informing that person that deepmove may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
Repeat Infringer Policy: In accordance with the DMCA and other applicable law, deepmovehas adopted a policy of terminating, in appropriate circumstances and at deepmove's sole discretion, Users who are deemed to be repeat infringers. deepmove may also at its sole discretion limit access to the Service(s) and/or terminate the memberships of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Links to Third Party Websites
The Service(s) may provide, or third parties may provide, links or other access to other sites and resources on the Internet that are not owned by deepmove. deepmove has no control over, is not responsible for, and does not endorse such sites and resources. You further acknowledge and agree that deepmove will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such sites or resources. Any agreements you have with third parties found while using the Service(s) are between you and the third party, and you agree that deepmove is not liable for any loss or claim that you may have against any such third party.
Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE(S) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. DEEPMOVE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
DEEPMOVE MAKES NO WARRANTY REGARDING THE SERVICE(S), THE THIRD PARTY CONTENT, USER MATERIALS OR FEEDBACK. DEEPMOVE MAKES NO WARRANTY THAT (I) THE SERVICE(S) WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE(S) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE(S) WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE(S) WILL MEET YOUR EXPECTATIONS.
YOU ACKNOWLEDGE AND AGREE THAT ANY CRIMINAL BACKGROUND CHECKS CONDUCTED BY DEEPMOVE ON INSTRUCTORS ARE SOLELY FOR ITS OWN BENEFIT. DEEPMOVE MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS ON THE SERVICE(S).
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT DEEPMOVE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF DEEPMOVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE(S); (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE(S); (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE(S); OR (V) ANY OTHER MATTER RELATING TO THE SERVICE(S). IN NO EVENT WILL DEEPMOVE’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID DEEPMOVE IN THE LAST SIX (6) MONTHS, AND (B) ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE(S) OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE(S).
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
Indemnification and Releases
You agree to release, indemnify and hold deepmove and its affiliates and their officers, employees, directors and agents (collectively, “Indemnitees”) harmless from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service(s), any User Material, your connection to the Service(s), your violation of these Terms or your violation of any rights of another. You waive California Civil Code Section 1542 (and any similar or analogous laws or regulations if you reside out of California), which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
Changes to the Terms
We reserve the right, at our sole discretion, to change or modify portions of these Terms at any time. If we do this, we will post the changes on the Services and will indicate at the top of this page the date these terms were last revised. We will also notify you, either through the Service(s) user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Service(s) or changes made for legal reasons will be effective immediately. Your continued use of the Service(s) after the date any such changes become effective constitutes your acceptance of the new Terms.
Dispute Resolution By Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS
Agreement to Arbitrate: This Dispute Resolution by Binding Arbitration section is referred to in these Terms as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and deepmove, whether arising out of or relating to these Terms (including any alleged breach thereof), the Service(s), any advertising, any aspect of the relationship or transactions between you and us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms, you and DeepMove are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
Prohibition of Class and Representative Actions and Non-Individualized Relief: YOU AND DEEPMOVE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND DEEPMOVE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). Nothing in this Section or in this Arbitration Agreement more generally is intended to waive non-waivable rights under the Private Attorneys General Act, Cal. Lab. Code § 2698 et seq.
Pre-Arbitration Dispute Resolution: deepmove is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at email@example.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute, which must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought (“Notice”). The Notice to deepmove should be sent to Deep Move, Inc. 855 El Camino Real, Ste. 13A #137, Palo Alto, CA 94301 (“Notice Address”). If deepmove and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or deepmove may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by deepmove or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or deepmove is entitled.
Arbitration Procedures: Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, https://www.adr.org/. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, https://www.adr.org/consumer. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless deepmove and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, deepmove agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Costs of Arbitration: Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, deepmove will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, deepmove will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, deepmove will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
Confidentiality: All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
Severability: If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the Section titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of the Section above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Terms will continue to apply.
Future Changes to Arbitration Agreement: Notwithstanding any provision in these Terms to the contrary, deepmove agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a User of the Service(s), you may reject any such change by sending deepmove written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute with us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
You agree that deepmove, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service(s) and remove and discard any content within the Service(s), for any reason, including, without limitation, for lack of use or if deepmove believes that you have violated or acted inconsistently with the letter or spirit of these Terms. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service(s), may be referred to appropriate law enforcement authorities. deepmove may also, in its sole discretion and at any time, discontinue providing the Service(s), or any part thereof, with or without notice. You acknowledge and agree that (i) any termination of your access to the Service(s) under any provision of these Terms may be effected without prior notice, (ii) deepmove may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service(s), and (iii) deepmove will not be liable to you or any third party for any termination of your access to the Service(s). Sections that are intended to survive, including, without limitation, sections on limitation of liability and warranty disclaimers will survive any termination.
We understand that occasionally disputes may arise between or among our Users. In the event of a dispute with another User, you agree to resolve the dispute in good faith and, if requested by deepmove, to work with deepmove and to provide information to deepmove in order to resolve the dispute. Notwithstanding the foregoing, you agree that deepmove is under no obligation to become involved in or to resolve any dispute between or among Users or any third party.
These Terms constitute the entire agreement between you and deepmove and govern your use of the Service(s), superseding any prior agreements between you and deepmove with respect to the Service(s). These Terms will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and deepmove agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Santa Clara County, California. The failure of deepmove to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service(s) or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of these Terms and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms without the prior written consent of deepmove, but deepmove may assign or transfer these Terms, in whole or in part, without restriction. The section titles in these Terms are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service(s) may also provide notices to you of changes to these Terms or other matters by displaying notices or links to notices generally on the Service(s).
Notice for California Users
If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to firstname.lastname@example.org with your email address and a request for the Terms and any linked terms. In addition, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Service(s) of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at 1-800-952-5210 in order to resolve a complaint regarding the Service(s) or to receive further information regarding use of the Service(s).
Please contact us at email@example.com to report any violations of these Terms or to pose any questions regarding these Terms or the Service(s).