Last updated: 12/9/2015
Welcome, and thank you for your interest in Fringe Inc. (“Fringe”, “we,” or “us”) and our social planning app that matches users’ calendars to find common free time for groups of friends to simply get together (“App”); our web site www.FringeTime.com (“Site”); and any related web sites, embeddable widgets, downloadable software, and other services provided by us on which a link to these Terms of Service is provided (collectively, including the Site and App, our “Service”). These Terms of Service are a legally binding contract between you and Fringe regarding your use of the Service.
You acknowledge and agree that, as provided in greater detail in these Terms:
the App is licensed, not sold to you, and you may use the Service only as set forth in these Terms;
your use of the Service may be subject to separate third party terms of service and fees, including without limitation the terms of service and data, SMS, MMS, and other fees of your mobile network operator (the “Carrier”), which are your sole responsibility;
the Service is provided “as is” without warranties of any kind and Fringe’s liability to you is limited;
disputes arising hereunder will be resolved by binding arbitration. BY ACCEPTING THESE TERMS, YOU AND FRINGE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Our rights will be determined by a neutral arbitrator and NOT a judge or jury, and your claims can’t be brought as a class action. Please review Section 18 below for the details regarding your agreement to arbitrate any disputes with Fringe;
access to certain features of the service may require access to information about the location of your device, such as GPS coordinates; and,
if you are using the App on an iOS-based device, you agree to and acknowledge the “Notice Regarding Apple”, below.
Eligibility. You must be at least eighteen (18) years of age to use the Service. By agreeing to these Terms, you represent and warrant to us: (i) that you are at least eighteen (18) years of age; (ii) that you have not previously been suspended or removed from the Service; and (iii) that your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind such organization to these Terms and you hereby agree to be bound by these Terms on behalf of yourself and such organization, and references to “you” in these terms will be deemed to refer to you in your individual capacity, your subscribing organization, and other users using the Service on behalf of such organization.
Additional Terms. Your use of the Service is subject to any and all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to on the Service (the “Additional Terms”), such as rules applicable to particular features or content on the Service, subject to Section 11 below. All Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.
Accounts and Registration. To access some features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself (such as your e-mail address or other contact information). You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at Support@FringeTime.com.
App Terms. The terms of this Section 5 govern your acquisition and use of our App.
Third Party Accounts. In order to download the App, you may be required by the third party who is distributing or providing you access to the App, such as Apple, Inc., (each, a “Distributor”) to create an account. You are solely responsible for maintaining the security of any logins, passwords, or other credentials that you select or that are provided to you to access your account with any Distributor. Your use of any account with a Distributor is subject to any terms, conditions, and policies, including privacy policies, of that Distributor. Fringe is not responsible for any act or omission of any Distributor.
License to the App. Subject to your complete and ongoing compliance with all the terms and conditions set forth in these Terms (including, without limitation, compliance with all license restrictions), Fringe grants you: (1) a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use one copy of the App downloaded directly from Fringe or from a legitimate marketplace (such as Apple’s iTunes store), solely in object code format and solely for your personal use (which includes using the App to schedule your business meetings) for lawful purposes, on a single compatible device that you own or control; and (2) permission to access and use the Service, only for your personal use (which includes using the Service to schedule your business meetings), and solely through the use of a licensed copy of the App. You may not reproduce, distribute, publicly display, or publicly perform the App or any part of the Service. Except if, and solely to the extent that, such a restriction is impermissible under applicable law, you may not (a) decompile, reverse engineer, or otherwise access or attempt to access the source code for the App, or make or attempt to make any modification to or derivative work of the App; or (b) interfere with or circumvent any feature of the App, including without limitation any security or access control mechanism. You may not use the App or the Service for any purpose other than a purpose for which the App and the Service are expressly designed. The term App, as used herein, includes any update or modification to the App made available to you by Fringe (unless provided with separate terms). If you are prohibited under applicable law from using the App or the Service, you may not use them.
Access to the App; Third Party Fees. Fringe does not provide you with the equipment to use the App. You are responsible for all fees charged by third parties to access and use the App (e.g., charges by Carriers). Without limiting the foregoing, you are solely responsible for the payment of all applicable fees associated with any Carrier service plan you use in connection with your use of the Service (such as data, SMS, MMS, roaming, and other applicable fees charged by the Carrier). Accordingly, you should use care in selecting a service plan offered by your Carrier.
Special Terms Regarding Apple. If you download software from Apple, Inc.’s App Store, your use of the software must at all times be in accordance with the Usage Rules set forth in the Apple, Inc. App Store Terms of Service, and you acknowledge that these Terms are between you and Fringe only, not with Apple. Apple is not responsible for the Service and the content thereof. These Terms are not intended to provide for usage rules for software that are less restrictive than the Usage Rules set forth for “Licensed Applications” in, or that otherwise conflict with, the App Store Terms of Service. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and Apple will refund any applicable purchase price for the App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (i) product liability claims; (ii) maintenance and support; (iii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iv) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the App infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the Service. Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
User Content Generally. Certain features of the Service may permit users to submit a variety of content, including messages, images, data, text, scheduling information, and other types of works (collectively, “User Content”) and may permit users to make certain User Content available to other users through the Service. As between Fringe and you, you retain ownership of all copyright and any other proprietary rights that you may hold in the User Content that you submit to the Service, and you do not transfer ownership of any of your intellectual property rights in your User Content to Fringe.
Limited License Grant to Fringe. By submitting User Content to the Service, you grant Fringe a worldwide, non-exclusive, royalty-free, fully paid up, perpetual, irrevocable, and transferable right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify, and distribute your User Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed) in connection with the operation, support and promotion of the Service (as it may be modified from time to time) to you and other users. Any such use of your User Content by Fringe may be without any compensation paid to you. Fringe may now or in the future provide features on the Service that allow you to configure certain controls or limitations with respect to if and how other users may access particular User Content. For example, Fringe may prohibit other users from seeing your calendar content, but permit other users to see your profile picture, if applicable. Notwithstanding, such features are not foolproof or immune from being compromised, hacked, misused, or otherwise bypassed, and Fringe does not and cannot guarantee that your User Content will not be accessed in ways other than you intended.
User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By submitting, posting, publishing, or sharing User Content, you affirm, represent, warrant, and covenant that:
you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions to submit, post, publish, and share such User Content with Fringe and others, and to authorize Fringe and users and licensees of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section 6 and in the manner contemplated by these Terms;
your User Content, and the use thereof as contemplated herein, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (ii) slander, defame, or libel any third-party; and
your User Content is accurate and up to date, is not fraudulent, misleading, unlawful, inappropriate, or obscene, and does not violate any law or regulation, or constitute false advertising or any other unfair business practice.
User Content Disclaimer. Fringe is under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Fringe may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you may be exposed to User Content and a variety of other data and information from a variety of third party sources and acknowledge that such User Content, data, and information may be inaccurate, offensive, indecent, inappropriate, or objectionable. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Fringe with respect to such User Content, data, or information, and we expressly disclaim any and all liability in connection with such User Content, data, or information. If notified by a user or content owner that User Content does not conform to these Terms, we may investigate the allegation and determine in our sole discretion what course of action to take, which we reserve the right to do at any time and without notice. For clarity, Fringe does not permit copyright-infringing or other unlawful activities on the Service.
Backups. You are solely responsible for maintaining backups of your User Content outside the Service, and Fringe will have no liability whatsoever to you arising out of or in connection with any loss, compromise, or corruption of any data you may submit, receive, transmit, or store through the Service. Once you terminate your account, you will no longer have access to retrieve or obtain any of your User Content.
Digital Millennium Copyright Act
DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have any complaints with respect to material posted on the Service, you may contact our Copyright Agent at the following address: Fringe, Inc., c/o C T Corporation System, 818 West SeventhStreet, Suite 930, Los Angeles, CA 90017, CA 94133, E-mail: Copyright@FringeTime.com
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
description of the copyrighted work or other intellectual property that you claim has been infringed;
description of the material that you claim is infringing and where it is located on the Service;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Repeat Infringers. Fringe will promptly terminate without notice the accounts of users that are determined by Fringe to be “repeat infringers.” A repeat infringer is a user who has been notified of infringing activity more than twice and/or has had User Content removed from the Service more than twice.
Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
use the Service (including the submission, transmission, modification, addition, or deletion of any User Content or other content available through the Service) for any illegal or improper purpose, or in violation of any local, state, national, or international law, or for any purpose other than your personal, non-commercial purposes;
violate, or encourage others to violate, the rights of Fringe or third parties, including by infringing or misappropriating any Fringe third party intellectual property or other proprietary rights;
post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, abusive, discriminatory, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate or off-topic;
post, upload, or distribute any content or initiate communications which include information that you do not have the right to disclose or make available under any law or under contractual or fiduciary relationships (such as insider information, or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
interfere with security-related features of the Service, including without limitation by (i) disabling or circumventing features that prevent or limit use or copying of any content, or (ii) reverse engineering or otherwise attempting to discover the source code of the Service or any part thereof except to the extent that such activity is expressly permitted by applicable law;
interfere with the operation of the Service or any user’s enjoyment of the Service, including without limitation by (i) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, (ii) sending unsolicited or unauthorized offers, advertisements, or other forms of solicitation to other users of the Service, (iii) attempting to collect, personal information about users or third parties without their consent; or (iv) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the Service, or violating the regulations, policies, or procedures of such networks, equipment, or servers;
perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the Service accounts of others without permission, falsifying your age or date of birth, forging headers or otherwise manipulating identifiers in order to disguise the origin of any communication transmitted through the Service, or posting content in fields that are not intended for that content;
use web scraping, web harvesting, or web data extraction methods to extract data from the Service;
sell or otherwise transfer the access granted herein or any Materials (as defined in Section 12 below) or any right or ability to view, access, or use any Materials; or
attempt to do any of the foregoing in this Section 8, or assist or permit any persons in engaging or attempting to engage in any of the activities described in this Section 8.
Third-Party Services and Linked Websites. Fringe may provide tools through the Service that enable you to export and import information, including User Content, to and from third party services, including through features that allow you to link your account on Fringe with an account on a third party service. By using these tools, you agree that we may transfer such information to the applicable third-party service. Such third party services are not under our control, and we are not responsible for their use of your exported information. The Service may also contain links to third-party websites. Such linked websites are not under our control, and we are not responsible for their content.
Termination of Use; Discontinuation and Modification of the Service. If you violate any provision of these Terms, your permission to use the Service will terminate automatically. Additionally, Fringe, in its sole discretion may terminate your user account on the Service or suspend or terminate your access to the Service at any time, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including, without limitation, by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time by contacting customer service at Support@FringeTime.com.
Changes to the Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. In the event that a change to these Terms materially modifies your rights or obligations, we will make reasonable efforts to notify you of such change. We may provide notice through a pop-up or banner within the Service, by sending an email to any address you may have used to register for an account, or through other mechanisms. Generally, modifications to the Terms are effective upon publication, provided that if the changed Terms materially modify your rights or obligations, the changes are effective upon the earlier of (a) your using the Service with actual knowledge of the change, or (b) your acceptance of the modified Terms, and further provided that disputes arising under these Terms will be resolved in accordance with the Terms in effect that the time the dispute arose. If you do not accept the changed Terms, you may not continue to access and use the Service.
Ownership; Proprietary Rights. The Service is owned and operated by Fringe. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (the “Materials”) provided by Fringe are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Service, and all intellectual property rights therein and thereto, are the property of Fringe or our third-party licensors. Except as expressly authorized by Fringe, you may not make use of the Materials. Fringe reserves all rights to the Materials not granted expressly in these Terms. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Fringe an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
Indemnity. You agree that you will be responsible for your use of the Service, and you agree to defend, indemnify, and hold harmless Fringe and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “Fringe Entities”) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys' fees and costs, arising out of or in any way connected with (i) your access to, use or misuse of, or alleged use or misuse of the Service; (ii) your violation of these Terms or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; (iv) your User Content, or (v) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.
Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE FRINGE ENTITIES SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING BUT NOT LIMITED TO (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE FRINGE ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PART THEREOF, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE WILL BE ACCURATE, UP TO DATE, UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. FRINGE MAKES NO GUARANTEES OR WARRANTIES RELATED TO SCHEDULING INFORMATION PLACED THROUGH THE SERVICE, INCLUDING ANY GUARANTEES THAT SCHEDULING INFORMATION WILL BE CORRECT OR COMMUNICATED IN A TIMELY MANNER.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE FRINGE ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALINGS WITH OTHER SERVICE USERS OR OTHER THIRD PARTIES, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICE) OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF SUCH MATERIALS OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF CERTAIN WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
Limitation of Liability
IN NO EVENT WILL THE FRINGE ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT ANY FRINGE ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
YOU AGREE THAT THE AGGREGATE TOTAL OF ALL LIABILITY OF THE FRINGE ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF, RELATING TO THE USE OF, OR ANY INABILITY TO USE THE SERVICE (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE) OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF (i) THE AMOUNTS YOU HAVE PAID TO FRINGE FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM OR (ii) $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 15 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Governing Law. These Terms shall be governed by the laws of the State of California without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Fringe agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within the County of San Francisco, California for the purpose of litigating all such disputes.
Dispute Resolution and Arbitration
Generally. In the interest of resolving disputes between you and Fringe in the most expedient and cost effective manner, you and Fringe agree that any and all disputes arising in connection with these Terms shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND FRINGE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Exceptions. Notwithstanding subsection 16.1, we both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
Arbitrator. Any arbitration between you and Fringe will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Fringe.
Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Fringe's address for Notice is as set forth below. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Fringe may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Fringe shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in your favor, Fringe shall pay you (i) the amount awarded by the arbitrator, if any, (ii) the last written settlement amount offered by Fringe in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.00, whichever is greater.
Fees. In the event that you commence arbitration in accordance with these Terms, Fringe will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in San Francisco, California, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Fringe for all monies previously disbursed by it that are otherwise your obligation to pay under 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 decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
No Class Actions. YOU AND FRINGE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Fringe agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Modifications. In the event that Fringe makes any future change to this arbitration provision (other than a change to Fringe's address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Fringe's address for Notice, in which case your account with Fringe shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
Enforceability. If Subsection 18.6 is found to be unenforceable or if the entirety of this Section 18 is found to be unenforceable, then the entirety of this Section 18 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 16 shall govern any action arising out of or related to these Terms.
Open Source Software. The App may include open source software or third party software. Any such software is made available to you under the terms of the applicable licenses. Please review the information on our [Third Party Software page] for the applicable notices and license terms.
Contact Information. The services hereunder are offered by Fringe Inc., located at 350 Bay Street #373, San Francisco, CA 94133. You may contact us by sending correspondence to the foregoing address or by emailing us at Support@FringeTime.com. If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for these Terms.
Notice to California Residents. If you are a California resident, California Civil Code Section 1789.3 allows you to contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210, in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.