Subject to these Terms of Use (the "Terms"), Talespin Reality Labs, Inc., whose offices are at600 Corporate Pointe, Suite 1130, Culver City, CA, and its affiliates (hereinafter “Talespin or“we” or “us”) provides you with access to its Properties. “Properties” means our hosted services, websites, widgets and embedded content, mobile device applications and applications provided through headsets, APIs, connected devices or other consumer electronic devices.
IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE ANY OF THE PROPERTIES OR ANY INFORMATION ON OR RELATED TO THE PROPERTIES. BY AGREEING TO AN ORDER FORM THAT REFERENCES THESE TERMS,CLICKING TO AGREE TO THESE TERMS OR USING OR ACCESSING, OR CONTINUING TO USE, ANY OF THE PROPERTIES, YOU AGREE TO ABIDE BY EACH OF THE TERMS SET FORTH BELOW AS TO YOUR USE OF ALL OF THE PROPERTIES.
If you have entered into a signed agreement with Talespin, the terms and conditions of such signed agreement shall take precedence and control in the event of any conflict with the terms of these Terms; provided that any additional terms set forth in these Terms shall apply.
If you are entering into these Terms on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity to these Terms, in which case the term"you" shall refer to such entity. If you do not have such authority, or if you do not agree with these Terms, you must not accept these Terms and may not use any of the Properties. As a company, business or other legal entity, you agree to these Terms on behalf of your entity and all users under your account, whether internal or external, and you are responsible for such users and their compliance with these Terms. You are responsible for ensuring that all of your users, whether internal or external, understand these Terms and agree to abide by these Terms. Any breach of these Terms by any of your users will be deemed a breach by you.
If you are an account administrator for a company, business or other legal entity, you agree that you have all necessary rights to provide us with any personal data, if any, of your authorized users under your account.
The effective date of these Terms as to your use of the Properties is the date that you first accept or agree to these Terms.
THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION. YOU AGREE THAT, EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED BELOW, ALL DISPUTES BETWEEN YOU AND TALESPIN WILL BE RESOLVED THROUGH BINDING INDIVIDUAL ARBITRATION, AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION, CLASS ARBITRATION, OR REPRESENTATIVE ACTION. PLEASE READ THE SECTION TITLED “DISPUTE RESOLUTION BY BINDING ARBITRATION” BELOW TO LEARN MORE.
Using any of these Properties indicates your unconditional agreement to these Terms, including our Privacy Policy, as updated from time to time. If you are under 18, you must obtain the consent of your parent or guardian to access our Properties and your parent or legal guardian agrees to these Terms on your behalf. If you are under 16 years old, you are not permitted to register as a user or otherwise provide us any personal information. These Terms (including the Privacy Policy and any additional terms incorporated by reference) constitute the entire agreement between you and us, and supersede all other written or oral agreements.
A. We grant you a non-exclusive, non-assignable, non-sublicensable limited license to use our Properties and Property Content solely for your internal business use only to obtain trainings and to provide trainings to authorized users under your account during your subscription term or trial term, as applicable (though, you may have certain rights to assign and sublicense to Approved Third Parties (as defined herein) if those rights are provided in your signed agreement with us, if any – see your agreement for details which may supercede these limitations). “Property Content” means our Properties and all content they contain, including but not limited to any video, music, text, images, graphics, sounds, information, curriculum, speaking modules, dialogue, URLs, technology, documentation and interactive features included with or available through our Properties, learning flow and sequences, derivative works or enhancements, and all intellectual property rights to the same, including all copyrights, patents, trademarks, service marks, trade names and trade dress.
B. We may from time to time give you the ability to embed certain elements contained in the Properties or Property Content into third party platforms pursuant to the license terms contained herein or supplemental terms. If you do so, you may not modify, build upon or block any portion or functionality of the Property Content, including links back to our Properties. We have sole control over which elements, if any, may be embedded. You also agree that we have the right
to serve ads and collect information through such embed. In addition, you will post your own terms and privacy policy consistent with applicable law, your use of our content, these Terms and our Privacy Policy.
C. You are responsible for your use of the Properties (including the use by any approved third parties). Our goal is to create a positive, useful, and safe user experience. To promote this goal, we prohibit certain conduct that may be harmful to other users or to us. When you use the Properties, you shall not:
i. violate any law or regulation;
ii. violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, or other legal rights;
iii. post or share anything that is illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, discriminatory or otherwise objectionable;
iv. send unsolicited or unauthorized advertising or commercial communications, such as spam;
v. use any means to spider, harvest, scrape, crawl, or participate in the use of software, including spyware, to collect data from the Properties or any Web pages contained in the Properties, other than in compliance with any applicable separate written license agreement or supplemental terms from us, if any;
vi. transmit any viruses or other computer instructions or technological means whose purpose is to disrupt, damage, or interfere with the use of computers or related systems;
vii. stalk, harass, or harm another individual;
viii. impersonate any person or entity or perform any other similar fraudulent activity, such as phishing;
ix. attempt to circumvent any technological measure implemented by us or any of our providers or any other third party (including another user) to protect the Properties;
x. attempt to decipher, decompile, disassemble, or reverse engineer any of the software or other underlying code used to provide the Properties; or
xi. advocate, encourage, or assist any third party in doing any of the foregoing.
D. Except as expressly set forth in these Terms, you shall not, directly or indirectly, in whole or in part: (a) copy any of the Properties, except for downloading the mobile app from an authorized distribution channel, such as the Oculus website, Apple App Store or Google Play, onto your mobile device as authorized under the license granted herein; (b) cause or permit any reverse engineering, decompilation, modification, translation or disassembly of any of the Properties (or any component thereof, including without limitation associated imagery and technology); (c) sell, rent, sublicense, distribute, disclose, publish, assign or otherwise transfer any rights in the Properties (except as otherwise provided in your signed agreement with Talespin, if any); (d) modify, or create derivative works based upon, the Properties (or any component thereof, including without limitation associated imagery and technology); (e) permit any third party to benefit from the use or functionality of the Properties via a timesharing, service bureau or similar arrangement, other than your authorized users; (f) take any action or omit to act in any way that would interfere with or disrupt the integrity or performance of the Properties, or adversely affects Talespin’s right, title or interest in or to the Properties; (g) host any digital copy of any Property Content (or any component thereof, including without limitation associated imagery and technology) in any place other than the Properties; or (h) redistribute any digital copy of any Property Content (or any component thereof, including without limitation associated imagery and technology) for any purpose. You acknowledge that the software code and technology underlying the Properties is Talespin’s confidential and proprietary information and shall not be used or disclosed to any third party.
A. “User Content” means text that you provide to us or make available through the Propertiesand that we convert to voice in the Properties and any content you provide through theProperties. When you provide or otherwise make available any such User Content, you grant usa universal, royalty-free, non-exclusive, fully sublicensable and transferable right to host, store,use, reproduce, modify, distribute, create derivative works based upon, translate, communicate,publicly display, publicly perform, transmit the User Content solely for purposes of providing youwith the Properties. You represent that User Content you provide is original with you, does notand will not (when used by Talespin consistent with the above license) violate or infringe uponthe rights of any third parties, including, without limitation, any intellectual property rights andrights of publicity and/or privacy.
B. “Feedback” means any suggestions or ideas regarding the Properties that you may submit orprovide to us in any manner. You agree and understand that Talespin is not obligated to useany Feedback and you have no right to compel such use. You understand and acknowledgethat Talespin has wide access to ideas, stories, designs, and other materials, and that newideas are constantly being submitted to it or being developed by Talespin’s own employees.Many ideas or stories may be competitive with, similar or identical to your Feedback in structure,purpose, function, theme, idea, plot, format or other respects. You acknowledge and agree thatyou will not be entitled to any compensation as a result of Talespin’s use of any such similar oridentical material. Finally, you acknowledge that, with respect to any claim you may haverelating to or arising out of Talespin’s actual or alleged exploitation or use of any Feedback, thedamage, if any, thereby caused will not be irreparable or otherwise sufficient to entitle you toinjunctive or other equitable relief and your rights and remedies in any such event shall bestrictly limited to the right to recover damages, if any, in an action at law consistent with theterms set forth in the sections entitled “DISPUTE RESOLUTION BY BINDING ARBITRATION”.
If you register in connection with your usage, you may be asked to create a user name andpassword. You are responsible for the activity that occurs under your account, and formaintaining the confidentiality of your account, including for any single sign on services that weprovide or that you use from a third party to login to your account. You agree not to provide anyfalse personal information or to create an account for anyone other than yourself and yourauthorized users. You agree to contact us at support@talespin.com immediately if you becomeaware of any breach of security or unauthorized use of your account. The foregoing shall alsoapply in the case of your assignment or sub-license of the Properties to third parties (“ApprovedThird Parties”), if permitted under your signed Agreement with Talespin and you agree to bebound and responsible for such use by third party transferees and to use best efforts to ensurethat such Approved Third Parties abide by these Terms.
Talespin 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 Talespin of your infringement claim in accordance with the procedure set forth below. Talespin 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 Talespin’s Copyright Agent below. To be effective, the notification must be in writing and contain the following information:
i. your name, address, telephone number, and e-mail address;
ii. a description of the copyrighted work that you claim has been infringed;
iii. the exact URL or if no URL exists, a description of each place where alleged infringing material is located;
iv. a statement by you that you have a good faith belief that the disputed use has not been authorized by you, your agent, or the law;
v. your electronic or physical signature or the electronic or physical signature of the person authorized to act on your behalf; and
vi. a statement by you that the information in your notice is accurate, and a statement made under penalty of perjury that you are the copyright owner or authorized to act on the copyright owner's behalf.
Talespin’s Copyright Agent’s address is:
Talespin Reality Labs, Inc.
Attn: General Counsel as Copyright Agent
600 Corporate Pointe, Suite 1130
Culver City, CA 90230
Email: g.segal@talespin.company
We will review any notices of copyright infringement and take appropriate action. Inquiries that do not follow this procedure may not receive a response. Repeat Infringer Policy: In accordance with the DMCA and other applicable law, Talespin has adopted a policy of terminating, in appropriate circumstances and at Talespin's sole discretion, Users who are deemed to be repeat infringers. Talespin may also at its sole discretion limit access to the Properties and/or terminate the memberships of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
A. Subject to the terms of Section 5.C. below, we agree to indemnify and hold harmless you from and against any and all “Losses” (as defined below) that may arise in connection with (i) Talespin’s gross negligence or willful misconduct or (ii) any of the Properties infringing on a third party’s intellectual property or proprietary rights, excluding claims arising out of any User Content, your embedding any of the Properties into third party platforms or your combination of the Properties with materials provided by third parties. Talespin is not obligated to indemnity you hereunder during any free trial periods.
B. Subject to the terms of Section 5. C. below, you agree to indemnify and hold harmless the“Talespin Parties” (as defined below) from and against any and all “Losses” (as defined below)that may arise in connection with: (i) your (or Approved Third Parties’) gross negligence or willful misconduct; (ii) User Content provided by you (or Approved Third Parties) infringing on a third party’s intellectual property or proprietary rights; or (iii) any actual or alleged violation or breach by you (or Approved Third Parties) of these Terms. “Talespin Parties” means Talespin and its officers, directors, employees, parents, partners, successors, agents, distribution partners, affiliates, subsidiaries and their related companies.
C. “Losses” means third party claims and resulting liabilities, losses, damages, obligations, costs and expenses (including reasonable attorneys’ fees and costs). The indemnities hereunder are subject to the following: The indemnified party must promptly notify the indemnifying party of the claim, allow the indemnifying party to control the defense of the claim and reasonably cooperate with the indemnifying party in defending the claim (at the indemnifying party’s expense).
A. YOU EXPRESSLY AGREE THAT USE OF OUR PROPERTIES IS AT YOUR SOLE RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING FROM DOING SO. WE ARE NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, DATA, OR INFORMATION SHARED BY THIRD PARTIES. OUR PROPERTIES (INCLUDING SOFTWARE) AND ALL ASSOCIATED CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DO NOT MAKE ANY COMMITMENTS ABOUT ANY CONTENT WITHIN OUR PROPERTIES, ANY SPECIFIC FUNCTIONS OR THE RELIABILITY, ACCURACY, SECURITY, TIMELINESS, NON-INFRINGEMENT, OR AVAILABILITY OF OUR PROPERTIES OR ANY ASSOCIATED CONTENT TO MEET YOUR NEEDS. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM THE WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR THOSE ARISING OUT OF A COURSE OF DEALING OR USAGE OF TRADE, AND ALL OTHER IMPLIED WARRANTIES.
B. TO THE FULLEST EXTENT PERMITTED BY LAW, THE TALESPIN PARTIES WILL NOT BE RESPONSIBLE FOR LOST PROFITS, REVENUES OR DATA, FINANCIAL LOSSES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF
THE TALESPIN PARTIES FOR ANY DAMAGES AND/OR CLAIMS UNDER THESE TERMS, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE GREATER OF ONE THOUSAND DOLLARS AND THE AMOUNT THAT YOU PAID US TO USE THE PROPERTIES IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION FIRST GIVING RISE TO THE CLAIM (OR, IF WE CHOOSE, TO SUPPLY YOU WITH THE PROPERTIES AGAIN).
C. BY ACCESSING THE PROPERTIES, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE
BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR OR ANALOGOUS LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
D. YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH ANY OF OUR PROPERTIES OR THESE TERMS MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED. THIS
PROVISION IS NOT APPLICABLE IN NEW JERSEY.
E. TO REDUCE THE RISK OF PERSONAL INJURY, DISCOMFORT OR PROPERTY DAMAGE, YOU SHALL ENSURE THAT, BEFORE USING ANY OF THE PROPERTIES, ALL USERS OF THE PROPERTIES READ CAREFULLY ALL HEALTH AND SAFETY WARNINGS PROVIDED TO YOU.
A. By using the Properties, you consent to receiving electronic communications from Talespin. These electronic communications may include notices about applicable Properties fees and charges related to the Properties and transactional or other information concerning or related to the Properties. These electronic communications are part of your relationship with Talespin and you receive them as part of your use of the Properties. You agree that any notices, agreements, disclosures or other communications that Talespin sends you electronically will satisfy any legal communication requirements, including that such communications be in writing.
B. The Properties will be provided according to the plan level and subscriptions you select. Unless otherwise specified on an order form, fees will be billed to the credit card or other payment account you provide in accordance with the billing terms in effect at the time a fee or charge is due and payable. You acknowledge and agree that Talespin will automatically charge your credit card or other payment account on record with Talespin in connection with your use of the Properties in arrears or in advance, as set forth on the payment page or applicable order form. Your subscriptions will automatically-renew for the same term as the initial term, subject to the terms of Section 8 below. You represent and warrant to Talespin that all of your payment information is true and that you are authorized to use the payment instrument. You will promptly
update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. If payment is not received or cannot be charged to your credit card or other payment account for any reason in advance, Talespin reserves the right to either suspend or terminate your access to the Properties and terminate these Terms. All fees are non-refundable, except as expressly stated otherwise in these Terms.
C. All payments shall be made in the currency of, and within the borders of the United States. You will pay all applicable taxes, duties, withholdings, backup withholding and the like; when Talespin has the legal obligation to pay or collect such taxes, the appropriate amount shall be paid by you directly to Talespin. If all or any part of any payment owed to Talespin under these Terms is withheld, based upon a claim that such withholding is required pursuant to the tax laws of any country or its political subdivisions and/or any tax treaty between the U.S. and any such country, such payment shall be increased by the amount necessary to result in a net payment to Talespin of the amounts otherwise payable under these Terms. You will reimburse Talespin any pre-approved and agreed upon costs. Talespin may change its fees and payment terms at its discretion; provided however, that such changes will not take effect for you until the start of the next payment period. Talespin will provide written notice to you for any changes to the fees that affect the Properties purchased by you. Your continued use of the Properties after the price change becomes effective constitutes your agreement to pay the changed amount.
A. Subject to earlier termination as provided below, the term of these Terms will commence on your acceptance of these Terms and will continue for as long as the Properties are being provided to you under these Terms. The term of your subscription and any Properties purchased shall automatically renew for successive terms equal in duration to the initial term unless you cancel your subscription thirty (30) days in advance of the renewal date.
B. You have the right to terminate your account at any time by sending a cancellation request to accounting@talespin.com. Such termination will be effective at the start of the next billing or renewal period. Subject to earlier termination as provided below, Talespin may terminate your account and these Terms at any time by providing thirty (30) days prior notice to the administrative email address associated with your account. In addition to any other remedies Talespin may have, Talespin may also terminate these Terms upon ten (10) days' notice (or two
(2) days in the case of nonpayment), if you breach any of the terms or conditions of these Terms. You acknowledge that Talespin reserves the right to terminate accounts that are inactive for an extended period of time and the right to modify or discontinue, temporarily or permanently, the Properties (or any part thereof). All of User Content on the Properties (if any) may be permanently deleted by Talespin upon any termination of your account in its sole discretion.
C. All sections of these Terms which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
D. Upon the termination of these Terms for any reason: (i) the licenses granted under these Terms in respect of the Properties shall immediately terminate and you and your users shall cease use of the Properties; (ii) Talespin will cease providing any support; (iii) you shall pay to Talespin the full amount of any outstanding fees due hereunder; and (iv) within fourteen (14) calendar days of such termination, you shall destroy or return all Talespin confidential information in your possession or control, and will not make or retain any copies of such information in any form.
We reserve the right, at our sole discretion, to change or modify portions of these Terms at anytime. If we do this, we will post the changes on certain portions of the Properties and will indicate at the top of this page the date these terms were last revised. We may also notify you, either through the Properties interface, or in an email notification or through other reasonable means to registered users and/or the administrator for an account. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Properties or changes made for legal reasons will be effective immediately. Your continued use of the Properties after the date any such changes become effective constitutes your acceptance of the new Terms.
A. With respect to the mobile versions of the Properties, you will only use the Properties (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) or a product that runs on the Android operating system; and (ii) as permitted by, and in compliance with, applicable “Usage Rules” set forth in the Apple App Store Terms of Use or the Google Play Terms. We reserve all rights in the Properties not expressly granted to you by these Terms. With regard to your use of the iOS version of the Properties, you acknowledge and agree that (i) these Terms are an agreement between you and Talespin only, and not Apple, and (ii) Talespin, not Apple, is solely responsible for the Properties and content thereof. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Properties. In the event of any failure of the Properties to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Properties to you and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Properties. As between Talespin 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 Talespin, subject to the these Terms. You and Talespin acknowledge that, as between Talespin and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the Properties or your possession and use of the Properties, including, but not limited to: (i) product
liability claims; (ii) any claim that the Properties fails to conform to any applicable legal or regulatory requirement; and, (iii) claims arising under consumer protection or similar legislation. You and Talespin acknowledge that, in the event of any third party claim that the Properties, or your possession and use of the Properties, infringes that third party’s intellectual property rights, as between Talespin and Apple, Talespin, 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 Talespin acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as they relate to your license of the Properties, 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 Properties against you as a third party beneficiary thereof.
B. If we provide you with any Oculus Quest headsets (“Facebook Products”) for use in conjunction with our Properties, you acknowledge and agree to the following terms: (i) the enterprise software as developed by Facebook (“Enterprise Software”) is provided by Facebook under the terms of the Facebook Enterprise Use Agreement (“EUA”) at https://business.oculus.com/legal/enterprise-use-agreement and you agree to abide by the terms of the EUA; (ii) Facebook will not provide any warranty or support for the Facebook Products; (iii) you acknowledge and agree that you may experience interruptions in service when using the Facebook Products and may be required to reset or install updates to the Facebook Products from time to time; (iv) you acknowledge and agree that Talespin and not
Facebook is the owner of the Facebook Products, and that any data provisions included in the EUA will not be applicable to you; (v) you will not disclose your use of the Facebook Products to any third party; (vi) you will not transfer or resell any license to Enterprise Software to another party, (vii) you will abide by and provide all content-specific warnings to all of your users under your account that may use the Facebook Products; (viii) you will keep the Facebook Products clean and in good working order; and (ix) you will follow all health and safety warnings provided by Facebook with or in connection with the use of the Enterprise Software and Facebook Products. The provision of the Facebook Products is a bailment and you are responsible for returning such Facebook Products to Talespin on the earlier of Talespin’s request or at the
expiration or termination of your subscription.
If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to info@talespin.company 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 Services of the CaliforniaDepartment 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 Properties or to receive further information regarding use of the Properties.
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 Talespin, whether arising out of or relating to these Terms (including any alleged breach thereof), the Properties, 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 ArbitrationAgreement, 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 Talespin 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 TALESPIN 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 TALESPIN 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 ArbitrationAgreement more generally is intended to non-waivable rights under the Private AttorneysGeneral Act, Cal. Lab. Code § 2698 et seq.
Pre-Arbitration Dispute Resolution: Talespin 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 support@talespin.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 Talespin should be sent to Talespin Reality Labs, Inc., 600 Corporate Pointe, Suite 1130, Culver City, CA 90230 (“Notice Address”). If Talespin and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Talespin may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Talespin or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Talespin 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 ArbitrationAgreement, 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 Talespin 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, Talespin 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 thisArbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Talespin 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, Talespin 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, Talespin will pay as much of the ArbitrationFees 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, Talespin 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 Properties, you may reject any such change by sending Talespin 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 ArbitrationAgreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
A. These Terms shall be construed in accordance with the laws of the State of California without regard to its conflict of laws rules. Except as provided in these Terms, these Terms constitute the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written or oral agreements between the parties with respect to the subject matter hereof. You shall not assign or transfer these Terms to any third party without our prior written consent.
B. These terms do not create any rights in favor of any third party, except as otherwise expressly specified hereunder. Our failure to take action to enforce our rights does not mean that we give up those rights or cannot take such action in the future.
C. If you access the Properties from locations outside of the U.S. you do so on your own initiative and at your own risk, and you are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
D. If a provision in these Terms is found to be illegal or unenforceable, that provision shall be removed from these Terms and the remaining provisions of these Terms shall remain in force.
E. At any time and for any reason or no reason we may restrict, suspend or terminate your access to the Properties, terminate your account, and add, remove or modify functionality.
F. When using our Properties, you agree to comply with all applicable laws and regulations.
G. You agree to fully cooperate with us to investigate any suspected or actual activity that is in breach of these Terms.
H. Our Properties may link or contain links to other websites maintained by our licensors, affiliates and/or third parties. We do not operate, control or necessarily endorse the content found on these third-party websites. You assume sole responsibility for your use of third-party links and any content posted on third-party websites.
I. Authorized users of the Properties under a corporate account of certain organizations that license use of certain Properties from us (“Customer Organizations”) may have data related to their usage, including personal identifiable information (“PII”) that we otherwise keep confidential, downloaded, parsed and retained by such Customer Organizations. Such use and retention of such data is determined by the applicable Customer Organization and is not on behalf of Talespin and you agree to fully hold us harmless, to the greatest extent permitted under applicable law, from any loss, liability or other recourse with respect to such use and retention of your data, including any PII, to the extent that it is obtained, utilized, stored or otherwise manipulated by a Customer Organization to which you are attached and through which your usage of the Properties, in part or in total, is arranged or obtained,
J. If you have a question, concern or complaint about these Terms, you can contact us at Office of General Counsel, Talespin Reality Labs, Inc., 600 Corporate Point, Suite 1100, Culver City CA 90230.