FYLLAN TERMS OF SERVICE
These terms of service (“Agreement”) apply to the use and/or access by any user, party or entity (“you” or “user”) – for example, a guest user (“Guest”) or a Host or service provider (“Host”) – of the Fyllan Software Application (“Application” or “Fyllan Application”) or of the Fyllan Website at http://www.fyllan.com (“Website”, “Fyllan Website” or “Fyllan Site”), provided by Fyllan, Inc. (“Fyllan”). The Agreement sets forth the legally binding terms and conditions for any use of the Application or Website (“Services”).
I. User Representations, Covenants and Warranties
By accessing or using any the Services, or by clicking “accept” or “agree” to the Agreement, you represent, warrant and acknowledge that:
- You have read, understand and agree to be bound by the Agreement;
- You are of legal age in the jurisdiction in which you reside to form a binding contract – which is the Agreement – with Fyllan; Use of Fyllan by anyone under 13 is strictly prohibited.
- You are not prohibited by law from using or accessing the Services, and are only using or accessing the Services in a legal or lawful manner, and not using or accessing the Services in any unlawful manner;
- You agree to comply with all applicable laws in the nation/country, state, city/town or area in which you reside while using or accessing the Services;
- You have legal authority to enter into the Agreement personally and/or on behalf of any company, organization, agency, legal entity, or other parties you have named during any registration to use the Services;
- You will use or access the Services to annoy, inconvenience or disturb anyone else or any other party;
- You will not use or access the Services, or any content accessible via the Services, for any commercial purpose outside of making or administering reservations, including but not limited to contacting, advertising to, soliciting or selling to, any Host, unless Fyllan has given you explicit permission to do so in writing.
- You will not copy or distribute any software or content involved the Services without explicit prior written permission from Fyllan;
- You will not create or compile, directly or indirectly, any collection, compilation, or other directory from any software or content involved with the Services except for your personal, noncommercial use;
- You will notify Fyllan – via the Services – of any updates to information, and will also provide proof of identification if necessary;
- You are aware that when using or accessing the Services by SMS text messages, standard messaging charges will apply.
- You will keep secure and confidential your password or any identification credentials Fyllan provides you during set up of your user account (“User Account”) which allows usage of or access to the Services.
- You will only use or access the Services for your own use and will not resell either the software associated with the Services or the Services to a third party.
- You will not use or access the Services in any way that could damage, disable, overburden or impair any server of Fyllan, or the networks connected to any Fyllan server;
- You will not attempt to gain unauthorized access to any part of the Services and/or to any website, page, service, account, resource, computer system and/or network connected to any Fyllan server;
- You will not deep-link to any pages or accessible websites through the Services or use or access the Services manually or with any robot, spider, web crawler, extraction software, automated process and/or device to scrape, copy or monitor any portion of the Services or any content on the Services, unless Fyllan has given you exlicit permission to do so in writing;
- You will not copy any content displayed, presented or conveyed through the Services, including but not limited to menu content, service lists and reviews of the Host, for republication in any format or media;
- You will not conduct any systematic retrieval of data or other content from the Services;
- You will not try to harm other users or Fyllan or the Services in any way whatsoever;
- You will report any errors, bugs, unauthorized access methodologies or any breach of our intellectual property rights that you uncover in your use or access of the Services; and
- You will not abuse any promotional or credit code system associated with the Services by engaging in activity such as, but not limited to, redeeming multiple coupons at once.
II. Reservation Services
A. Host Reservations. Fyllan provides the ability to reserve seats at Hosts or appointments at services (“reservation”), as part of the Services (“Reservation Services”) to users to enable users to secure dining reservations or appointment reservations at participatigng Hosts. In response to a user’s online request for a reservation through the Services, Fyllan directly contacts the Host’s computerized database of reservations. The availability of reservations is determined at the time of user’s query. Once a reservation is made by a user through the Services, Fyllan will provide confirmation of the reservation to the user by email. By using the Reservation Services, the user agrees to receive reservation confirmations by email after booking a reservation through the Reservation Services.
B. No-Show Policy. For Guest: If a user, as a Guest, cannot show up to the appointed time for the reservation they have purchased, then the Guest will lose 25% of their credit and will be required to rebook with the same Host to use the remaining credit at another time. For Hosts: Hosts, as users, must try to the best of their abilities to honor the times that the Guest has paid for. Hosts also have 15 (fifteen) minutes past the appointment time to seat the Guests. There will be no service charge on this second booking. Fyllan is committed to providing superior quality services to users (Guests and Hosts). To assist us in maintaining a consistently high level of service for Hosts and their Guests, Guests must also cancel any reservations that they will be unable to honor at least 240 (two hundred forty) minutes in advance of the reservation. You may cancel your reservation via the firstname.lastname@example.org. Some Hosts may require a debit or credit card number to finalize your reservation. In order to use the Reservation Services for these Hosts, you must provide valid debit or credit card information. To confirm that the debit or credit card information you have provided is accurate, Fyllan will charge your credit or debt card at the time of the booking.
C. General Cancellation Policy. In the absence of a specific Host cancellation policy, Guests have fifteen (15) minutes to show up to the reservation that they have purchased at the specified or appointed time. If Guests do not show up to their purchased reservation at the appointed time in 15 minutes, the Host may be able to give away their seats. Your User Account will be terminated if you are a no-show for four reservations within a 12-month period. If you receive a no-show notification email in error, you may dispute it. Guests agree that all final no-show determinations will be made by Fyllan in its sole discretion.
D. Usage Guidelines. Guests agree to use the Reservation Services only to book reservations at Hosts and then honor those reservations by arriving at the Hosts on time and ordering and paying for reservations (or service items at a reservation). User further agrees not to book more than one reservation for a Guest’s personal use during any one reservation time (e.g., lunch, dinner, etc.). Resale or attempted resale of reservations is prohibited and is grounds for, among other things, cancellation of your reservations or termination of your access to the Services.
III. Payment Services
A. General Description and Requirements. Users can pay for reservations via various payment methods, including online or in person debit or credit cards (“Payment Services”). The Payment Services allow users to pay bills at participating Hosts through the Services. In order to use the Payment Services at a participating Host, you must: (1) install the Fyllan Application on a compatible mobile device; (2) make a reservation for the Host through the Reservation Services; (3) provide valid payment method information through or to the Fyllan Application as further described below; (4) provide and verify your mobile phone number as further described below; and (5) have an User Account in good standing. The Payment Services may not be available for all Hosts; for a list of participating Hosts, please visit the Fyllan Site or Fyllan Application. There is a service fee to you to use the Payment Services, and your mobile carrier’s standard text message and data charges may apply; you are responsible for any fees charged by your mobile carrier in connection with your use of the Payment Services and Fyllan Application.
By providing debit or credit card account information through or to the Fyllan Application, you represent, warrant, and covenant that: (1) you are legally authorized to provide such information to us; (2) you are legally authorized to perform payments from the debit or credit card account(s); and (3) such action does not violate the terms and conditions applicable to your use of such debit or credit card account(s) or applicable law. When you authorize a payment using a debit or credit card account via the Fyllan Application, you represent, warrant, and covenant that there are sufficient funds or credit available to complete a payment using the debit or credit card account.
C. Verified Mobile Phone Number. In order to use the Payment Services, you must provide a valid mobile phone number through the Fyllan Application and verify such number as instructed by us. To verify your mobile phone number, we will send you a code via text message to the mobile phone number you provided, and you must enter that code as instructed in the Fyllan Application. If you change your mobile phone number, you must promptly provide and verify your new mobile phone number. When you provide your mobile phone number, you expressly consent to receive direct dial calls, autodialed and prerecorded message calls, and text messages relating to the Payment Services at that number.
D. Account Settings. You may establish certain default settings for your use of the Payment Services through the Fyllan Application, such as your preferred payment card account if you provided debit or credit card information directly through the Fyllan Application. You may change these settings through the Fyllan Application.
E. Payment Authorization and Settlement. After you place an order at a participating Host, you will be charged the minimum spending amount as set by the HOST immediately. You may only use the Payment Services to pay the full amount of the bill; no split checks or partial payments are permitted. This Agreement does not alter your payment obligations to Hosts; you are responsible for timely payment of all amounts owed by you to any Host. Depending on your payment method, you may be subject to certain minimum charges. Except to the extent otherwise required by applicable law, Fyllan is not responsible or liable for any payments authorized through the Fyllan Application using your payment method information.
F. Receipts and Transaction History. As a courtesy, we will email a receipt to the email address associated with your User Account upon completion of a transaction using the Payment Services. You may print and save copies of these receipts. If you would like a paper receipt, you must request one from the Host at the time of the transaction.
G. Certain Limitations. You acknowledge and agree that Fyllan provides the Payment Services only as a convenience and is not a party to your payment transactions performed using the Payment Services. Fyllan is an independent contractor for all purposes and is not your agent or trustee. Fyllan is not responsible, and has no liability for, the products or services that are paid for with the Payment Services. Fyllan is not responsible for any overcharges or other payment disputes with Hosts. Users must resolve payment and other disputes directly with Hosts.
Fyllan is not liable for any payments that the Payment Services do not complete because: (1) your debit or credit card account does not contain sufficient funds to complete the transaction or the transaction would exceed the credit limit or overdraft protection of the debit or credit card account; (2) you have not provided us with correct payment account information; (3) your debit or credit card has expired; or (4) circumstances beyond our control (such as, but not limited to, power outages, interruptions of cellular service, or any other interferences from an outside force) prevent the execution of the transaction. To the extent that any amounts owed cannot be collected from your debit or credit card account through the Payment Services, you are solely responsible for paying the applicable Host(s) by other means.
IV. Terms for All Services
B. Your Account. You may (but are not required to) create an account with Fyllan through the Fyllan Site or Fyllan Application (“Account”) in order to use the Reservation Services or to purchase, gift, or redeem (as applicable) gift certificates or gift cards. However, you must have an Account in order to use the Payment Services. When registering for an Account, you must provide true, accurate, current, and complete data about yourself on the Fyllan registration form (“Registration Data”). You also agree to promptly update the Registration Data to keep it true, accurate, current, and complete. You are solely responsible for maintaining the confidentiality of your Account and the information in your Account, and, except as otherwise required by applicable law, you are solely responsible for all use of your Account, whether or not authorized by you. You agree to immediately notify Fyllan of any unauthorized use of your Account or any other breach of security related to your use of the Services.
E. Modifications to Services. Fyllan reserves the right, in its sole discretion, to modify the Services from time to time and without notice, including, without limitation, by removing, adding, or modifying portions of the Fyllan Site, Fyllan Application, and/or Hosts. Fyllan shall have no liability to you for any of the foregoing actions. If you object to any such changes, your sole recourse shall be to cease using the Services. Continued use of the Services following any such changes shall indicate your acknowledgment of such changes and satisfaction with all the Services.
F. Intellectual Property Rights and Grant of Rights to User. The features, information, and materials provided and depicted through the Services are protected by copyright, trademark, patent, and other intellectual property laws. All text, graphical content, video, data, and other content made available through the Services (collectively, the “Fyllan Content”) are provided to users (Guests and Hosts) by Fyllan or its partners or licensors solely to support any user’s permitted use of the Services. The Fyllan Content may be modified from time to time by Fyllan in its sole discretion. Except as expressly set forth herein, no license is granted to any user for any other purpose, and any other use of the Services or the Fyllan Content by any user shall constitute a material breach of this Agreement. Fyllan and its partners or licensors retain all rights in the Services and Fyllan Content and any associated patents, trademarks, copyrights, mask work rights, trade secrets, or other intellectual property rights. No license, right, or interest in any trademarks of Fyllan or any third party is granted under this Agreement.
G. Application License. Subject to the terms and conditions of this Agreement, Fyllan grants any user (Guests and Hosts) a non-exclusive, non-transferable, revocable license to use the Fyllan Application, in object code form only, on any user’s compatible mobile devices, solely to support any user’s permitted use of the Services.
H. Use Restrictions. The Services and Fyllan Content are offered solely for any user’s (Guest’s and Host’s) personal use for the purposes described in this Agreement. Any and all other uses are prohibited. Fyllan expressly reserves all its rights and remedies under applicable state and federal laws. Fyllan reserves the right, in its sole discretion, to refuse service, terminate Accounts, remove or edit content, cancel reservations, or deny access to the Services. You agree not to (and not to allow any third party to): (1) use any deep-link, robot, spider, scraper, or other automatic or manual device, process, or means to access, copy, search, or monitor any portion of the Services or Fyllan Content, except as expressly authorized by Fyllan; (2) take any action that imposes or may impose (in Fyllan’s sole determination) an unreasonable or a disproportionately large load on the Services or Fyllan’s infrastructure; (3) utilize any device, software, or routine that will interfere or attempt to interfere with the functionality of the Services; (4) rent, lease, copy, provide access to or sublicense any portion of the Services or Fyllan Content to a third party; (5) use any portion of the Services or Fyllan Content to provide, or incorporate any portion of the Services or Fyllan Content into, any product or service provided to a third party; (6) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Fyllan); (7) modify any Services or Fyllan Content or create any derivative product from any of the foregoing; (8) remove or obscure any proprietary or other notices contained in the Services or Fyllan Content; (9) use the Services or Fyllan Content for any illegal purpose; or (10) publicly disseminate information regarding the performance of the Services or Fyllan Content or access or use the Services or Fyllan Content for competitive analysis or benchmarking purposes.
I. Government End Users. The Services constitute a “commercial item” as defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire any Fyllan Application with only those rights set forth therein.
J. Export Control. You may not use, export, or re-export any Fyllan Application or other aspects of the Services (or any copy or adaptation of the foregoing) in violation of applicable law, including, without limitation, United States and foreign export laws and regulations. You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country and that you are not listed on any U.S. Government list of prohibited or restricted parties.
K. Termination. Fyllan may suspend your ability to use all or any element of the Services or may terminate this Agreement effective immediately, without notice or explanation. Without limiting the foregoing, Fyllan may suspend your access to the Services if we believe you to be in violation of any part of this Agreement (including any Fyllan Policies) or, with respect to purchasers of gift cards or gift certificates and any users of the Payment Services, if we receive excessive chargebacks on the debit or credit card associated with your Account. After any suspension or termination, you may or may not be granted permission to use the Services or re-establish an Account. You agree that Fyllan shall not be liable to you for any termination of this Agreement or for any effects of any termination of this Agreement. You are always free to discontinue your use of the Services at any time. You understand that any termination of your Account may involve deletion of any content stored in your Account for which Fyllan will have no liability whatsoever.
L. Reviews, Comments, Communications, and Other Content. The Services may permit you to submit reviews, comments, and ratings; send emails and other communications; and submit suggestions, ideas, comments, questions, or other information for publication and distribution to Hosts and other third parties (“User Content”). Any such User Content must not be illegal, threatening, obscene, racist, defamatory, libelous, pornographic, infringing of intellectual property rights, promoting of illegal activity or harm to groups and/or individuals, invasive of privacy, purposely false or otherwise injurious to third parties, or objectionable and must not consist of or contain software, computer viruses, commercial solicitation, political campaigning, chain letters, mass mailings, any form of “spam” or references to illegal activity, malpractice, purposeful overcharging, false advertising, or health code violations (e.g., foreign objects in food, food poisoning, etc.). Your User Content should be unbiased and objective. You may not submit reviews, comments or ratings of your own Host, or any Host of your employer, friend, relative or a competitor. You may not use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of User Content. Fyllan reserves the right (but has no obligation) to monitor, remove, or edit User Content in Fyllan’s sole discretion, including if User Content violates this Agreement (including any Fyllan Policies), but you acknowledge that Fyllan may not regularly review submitted User Content. If you do submit User Content, and unless we indicate otherwise, you grant Fyllan a nonexclusive, perpetual, royalty-free, irrevocable, and fully sublicensable (through multiple tiers) right to use, modify, reproduce, adapt, translate, publish, create derivative works from, distribute, display, and otherwise exploit such User Content throughout the world in any media. Fyllan takes no responsibility and assumes no liability for any User Content submitted by you or any other user or third party.
M. Your Representations and Indemnity. You represent and warrant that you own or otherwise control all of the rights to any User Content submitted by you; that all User Content submitted by you is accurate; and that exploitation of such User Content by Fyllan and its other Users, partners, and licensees will not violate this Agreement, cause injury to any person or entity, or infringe any third-party rights (including, without limitation, intellectual property rights and rights of privacy or publicity). You will indemnify, hold harmless, and (at Fyllan’s request) defend Fyllan, its affiliates, and its and their representatives, agents, directors, managers, officers, employees, and shareholders (collectively, the “Fyllan Parties”) from and against all claims resulting from (1) any User Content submitted by you, (2) your use of the Services, or (3) any breach or alleged breach by you of this Agreement.
N. Liability Limitations. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY SPECIFIED BELOW WITH RESPECT TO FYLLAN GIFT CARDS AND MERCHANT GIFT CARDS, IN NO EVENT SHALL THE FYLLAN PARTIES BE LIABLE FOR ANY INJURIES, LOSSES, CLAIMS, OR DIRECT DAMAGES OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE OUT OF OR ARE ANY WAY CONNECTED WITH (1) THIS AGREEMENT, (2) ANY USE OF THE SERVICES, THE FYLLAN CONTENT, OR THE USER CONTENT, (3) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF THE RESERVATION SERVICES OR PAYMENT SERVICES), OR (4) YOUR VISIT TO ANY HOST OR THE PERFORMANCE, NON-PERFORMANCE, CONDUCT, OR POLICIES OF ANY HOST OR MERCHANT IN CONNECTION WITH THE SERVICES. IN ADDITION, YOU SPECIFICALLY UNDERSTAND AND AGREE THAT ANY THIRD PARTY DIRECTING YOU TO THE FYLLAN SITE BY REFERRAL, LINK, OR ANY OTHER MEANS IS NOT LIABLE TO USER FOR ANY REASON WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR LOSS ASSOCIATED WITH THE USE OF THE SERVICES OR THE FYLLAN CONTENT. FYLLAN IS NEITHER AN AGENT OF NOR OTHERWISE ASSOCIATED WITH ANY HOST FOR WHICH A USER HAS MADE A RESERVATION OR PAID A BILL USING THE PAYMENT SERVICES OR ANY MERCHANT THAT ISSUES A MERCHANT GIFT CARD.
You and Fyllan understand and agree that the disclaimers, exclusions, and limitations in this Section 33 and in Section 34 are essential elements of this Agreement and that they represent a reasonable allocation of risk. In particular, you understand that Fyllan would be unable to make the Services available to you except on these terms and agree that this Agreement will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
O. Disclaimer of Warranties. THE SERVICES, ALL FYLLAN CONTENT, AND ANY OTHER INFORMATION, PRODUCTS, AND MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICES, ARE PROVIDED TO USER ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND. FYLLAN EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, OR INDEMNITIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. FYLLAN DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT FYLLAN WILL REVIEW THE INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SERVICES FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN ANY SUCH INFORMATION OR MATERIALS WITHOUT LOSS. FYLLAN SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF FYLLAN.
THE FOREGOING DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
P. Links to Third-Party Websites. The Services may contain hypertext links to websites operated by parties other than Fyllan. Such hypertext links are provided for User’s reference only, and Fyllan does not control such websites and is not responsible for their content. Fyllan’s inclusion of any hypertext links to such websites does not imply any endorsement of the material on such websites or any association with their operators. Fyllan assumes no liability whatsoever for any such third-party websites or any content, features, products, or services made available through such third-party websites.
Q. Release. Hosts and Merchants are solely responsible for their interactions with you and any and all claims, injuries, illnesses, damages, liabilities, and costs (“Claims”) suffered by you (or, if applicable, any recipient of any gift cards or gift certificates) as a result of your (or such recipient’s) interaction with or visit to any Host or from any product or service of any Host. You hereby release the Fyllan Parties from any and all such Claims. IN CONNECTION WITH THE FOREGOING, IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS 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.” You hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to the release of any unknown or unsuspected claims you may have against the Fyllan Parties pertaining to the subject matter of this Section 36.
R. Notify Us of Infringers. If you believe any of the Services violate your copyright, notify our copyright agent in writing.
38. Severability. If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision (or portion thereof) notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted.
S. Assignment. This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned, or delegated in any manner by User, but may be freely transferred, assigned, or delegated by Fyllan.
T. Waiver. Any waiver of any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right.
U. ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE. Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and the Fyllan Parties or their successors or assigns shall exclusively be settled through binding and confidential arbitration.
Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”).
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and Fyllan must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR FYLLAN MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Fyllan will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (4) Fyllan also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law.
Notwithstanding the foregoing, either you or Fyllan may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in San Francisco County, California. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in San Francisco County, California in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within San Francisco County, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
With the exception of subparts (1) and (2) in this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If, however, either subpart (1) or (2) is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Fyllan shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court located in San Francisco County, California.
For more information on AAA, the Rules and Procedures, or the process for filing an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
V. Choice of Law. This Agreement is made under and shall be governed by and construed in accordance with the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.