These Terms of Service, along with any other documents referenced herein as applicable to your use of the products and services, features, technologies, and/or functionalities offered by Sunfish Solutions, LLC (“Sunfish“) on its website or through other digital mediums (collectively, the “Sites”), or through any other means (collectively, the “Services”) are a contract between you and Sunfish. As part of your use of the services, you may need to set up an account with us first (a “Sunfish Account”). Sunfish Accounts are for personal use only and should not be used for business purposes.
“You” and “your” means the person who is authorized to use the Services as provided in these Terms of Service. “We,” “us,” and “our” mean Sunfish, and our successors, affiliates, assignees and third-party service providers.
If there is a conflict between these Terms of Service and any other document or statement made to you concerning the Services, these Terms of Service will govern. If there is a conflict between these Terms of Service and any other document or statement made to you concerning any other service or product, the separate terms and conditions applicable to that service or product will govern. For example, if you obtain a Sunfish membership or financing, it may be subject to additional terms and conditions.
THESE TERMS OF SERVICE CONTAIN AN AGREEMENT TO ARBITRATE ALL CLAIMS, A WAIVER OF CLASS ACTION AND YOUR RIGHT TO A JURY TRIAL AND CONTAIN IMPORTANT DISCLAIMERS OF WARRANTIES, LIMITATIONS ON LIABILITY AND WAIVERS. Please read the entire Terms of Service carefully, but please take special care to read the capitalized provisions as they contain important disclaimers of warranties and limitations on liability.
2. Changes to these Terms of Service.
We may amend these Terms of Service at any time and any change or amendment will be effective upon posting the updated Terms of Service on the Sites. The date on the top of this page shows when the Terms of Service was last updated. We will try to provide reasonable notice in writing or by any method permitted by law if there is a change to these Terms of Service that is adverse to you or imposes additional obligations on you. However, by continuing to use the Sites or the Services, you agree to be bound by such amendments or additional obligations or restrictions.
3. Eligibility and Registration.
To access the Sites or use the Services, you must be an individual of at least 18 years of age who resides in the United States or one of its territories. Certain Services may require you to set up a Sunfish Account and for us to verify your identity and share your information with third party service providers to assist us in doing so.
If you choose to set up a Sunfish Account, you agree to provide and maintain true, accurate, current and complete information about yourself as prompted by the Service’s registration form. If any of this information changes, it is your obligation to provide updated information as soon as possible. From time to time, we may also require you to provide further information as a condition for continued use of the Services. If you do not provide or update your information, or if we have reasonable grounds to suspect that you have not provided or updated such information, we shall have the right, in our sole and absolute discretion, to disable your Sunfish Account.
Use of certain Services may have further eligibility requirements as permitted by applicable law. Certain features of the Services may be limited depending on the state in which you reside, the date on which you created your Sunfish Account or other factors.
You may register for only one (1) Sunfish Account. If you open additional accounts, we reserve the right to immediately close such additional accounts. By accessing the Sites or using the Services, you represent and warrant that you are eligible to do so, and that you have read and agree to these Terms of Service.
We reserve the right to modify or discontinue, temporarily or permanently, the Services (or any part of the Services) with or without notice. You agree that we will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
5. Consent to Receive Communications.
To provide you with the best possible service in our ongoing business relationship, we may need to contact you about your Sunfish Account or the Services from time to time by text messaging, push notifications and/or email. However, we will always do so with your consent, in compliance with the consumer protection provisions of the federal Telephone Consumer Protection Act of 1991 (TCPA), CAN-SPAM Act, and their related federal regulations and orders issued by the Federal Communications Commission (FCC).
Your consent to receive communications under this Section of the Terms of Service is limited to your Sunfish Account and the Services, and as authorized by applicable law and regulations. You covenant, warrant and represent that the telephone numbers that you have provided to us are your contact numbers and that you are permitted to receive calls at each of them. You agree to promptly alert us whenever you stop using a particular telephone number that you provided to us.
With the above understandings, you expressly consent to be contacted by us or our affiliates at any telephone number (including mobile or landline), e-mail address, mailing address, or physical or electronic address, in each case, that you provide or at which you may be reached. You agree we, our affiliates, agents, or service providers may contact you in any way, including by voice, voicemail, e-mail, SMS messages (including text messages) and calls using prerecorded messages, artificial voice, or an automated dialing device at any phone number you have provided to us, including any mobile phone number, as well as any address in our records or in public or nonpublic databases. You understand that the purpose of our communication may be marketing or transactional.
You understand that you are not required to provide consent to marketing SMS messages as a condition to accessing our Services or products. You may withdraw your consent to SMS communications by replying STOP to the SMS message, or by contacting us at firstname.lastname@example.org. You agree that we and our agents, representatives, affiliates or anyone calling on our behalf may contact you on a recorded or monitored line and that any incoming calls may also be recorded and monitored.
Your consent to receive communications under this Section of the Terms of Service is effective regardless of whether the number we use to contact you is assigned to a landline, a paging service, a cellular wireless service, a specialized mobile radio service, other radio common carrier service or any other service for which you may be charged for the call. If necessary, you may change or remove any of the telephone numbers or email addresses at any time using any reasonable means to notify us. To revoke the consent provided pursuant to this subsection, you must send 10 days’ prior written notice of such revocation to email@example.com.
You are responsible for any and all charges, including fees associated with text messaging, imposed by your communications service provider. You also agree to receive alerts about your Sunfish Account activity and other matters involving your use of the Sites or the Services through push notifications to your smartphone or other device. Receipt of push notifications may be delayed or prevented by factors beyond our control, including those affecting your internet/phone provider. We are not liable for losses or damages arising from non-delivery, delayed delivery, or the erroneous delivery of any push notification; inaccurate push notification content; or your use or reliance on the content of any push notification for any purposes. Each push notification may not be encrypted, and may include your name and information pertaining to your Sunfish Account or use of the Sites. We may terminate your use of push notifications at any time without notice. You may choose to discontinue receiving push notifications by updating your preferences on your smartphone or device.
Monitoring and Recording Telephone Calls: We may monitor or record phone calls made to or from us for security reasons, to maintain a record, and to ensure that you receive courteous and efficient service. You consent in advance to any such recording. We need not remind you of our recording before each phone conversation. We are not required to act upon instructions you give us by voice mail or on a telephone answering machine.
6. Termination and Account Closure.
You may terminate your agreement to these Terms of Service at any time by closing your Sunfish Account and discontinuing use of the Services by contacting us at firstname.lastname@example.org. When we receive your request to close your Sunfish Account, we may take a reasonable amount of time to process your account closure. Upon termination of this agreement and your Sunfish Account, you remain liable for all transactions made while your Sunfish Account was open.
You agree that Sunfish, in its sole discretion, may suspend or terminate your Sunfish Account (or any part thereof) or use of the Services and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Sunfish believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. We may refer to appropriate law enforcement authorities any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service. Sunfish may also in its sole discretion and at any time discontinue providing the Services, or any part thereof, with or without notice. You agree that any termination of your access to the Services under any provision of these Terms of Service may be affected without prior notice and acknowledge and agree that Sunfish may immediately deactivate or delete your Sunfish Account and all related information and files in your Sunfish Account and/or bar any further access to such files or the Service. Further, you agree that Sunfish will not be liable to you or any third party for any termination of your access to the Service.
7. Prohibited Activities:
As a condition to accessing the Sites, using the Services or operating a Sunfish Account, you agree you will not, in the course of obtaining or using the Services, Sites, or Sunfish Account, as applicable:
- violate (or assist any other party in violating) any applicable law, statute, ordinance, or regulation;
- intentionally try to defraud (or assist in the defrauding of) Sunfish;
- provide false, inaccurate, or misleading information;
- take any action that interferes with, intercepts, or expropriates any system, data, or information;
- partake in any transaction involving the proceeds of illegal activity;
- transmit or upload any virus, worm, or other malicious software or program;
- attempt to gain unauthorized access to other Sunfish accounts, the Sites, or any related networks or systems;
- use the Services on behalf of any third party or otherwise act as an intermediary between Sunfish and any third parties;
- defame, harass, or violate the privacy or intellectual property rights of Sunfish;
- upload, display or transmit any messages, photos, videos or other media that contain illegal goods, pornographic, violent, obscene or copyrighted images or materials for use as an avatar, in connection with a payment or payment request, or otherwise; or
- display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.
We may charge a fee for your use of the Services or any part of your use of the Sunfish Account. To the extent we do, you may be required to select a form of payment and provide information to us regarding your form of payment. You represent and warrant to us that such information is true, correct and accurate, and that you are authorized to use the payment instrument. You will promptly update your Sunfish Account information with any changes (for example, a change in your billing address) that may occur. You agree to pay to us the amount that is specified in accordance with these Terms of Service. If you dispute any charges, you must let us know within sixty (60) days after the date that we charge you. We reserve the right to modify our prices with notice to you through any reasonable method of communication (including email, by updating these Terms of Service, or by notice to you through the Sites) at least thirty (30) days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the modified amount. You are responsible for all taxes associated with the Services other than U.S. taxes based on our net income.
9. Links to Other Websites and Content.
Our Services may appear on, or link to, or third-party links, websites, or content. We have no control over such sites and resources and are not responsible for and do not endorse such sites and resources. You further acknowledge and agree that we will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that we are not liable for any loss or claim that you may have against any such third party.
10. Intellectual Property Rights
Service Content, Software and Trademarks:
The technology and software underlying the Services and the Sites or distributed in connection therewith are the property of Sunfish and/or our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Sunfish.
You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by us, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service.
The Sunfish name and logos are trademarks and service marks of Sunfish (collectively, the “Sunfish Trademarks”). Other Sunfish product and Service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Sunfish. Nothing in these Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of any Sunfish Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of the Sunfish Trademarks will inure to our exclusive benefit.
With respect to the content or other materials you upload through the Service or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading any User Content, you hereby grant and will grant to us and our affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to us are non-confidential and we will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you. You acknowledge and agree that we may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Sunfish, its users and the public. You understand that the technical processing and transmission of the Service, including your User Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Copyright Complaints: We respect 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 us of your infringement claim in accordance with the procedure set forth below. We 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.
To be effective, the notification must be in writing and contain the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
11. Indemnity and Release.
You agree to release, indemnify and hold Sunfish, and its officers, directors, shareholders, employees, successors, predecessors, representatives, principals, agents, assigns, parents, subsidiaries and/or insurers harmless for any losses, damages, suits and expenses, including reasonable attorneys’ fees, that we may incur, without regard to the merit or lack thereof, arising out of, or related in any way to (1) the matters set forth herein; (2) our taking any action or not taking any action that we are entitled to take pursuant to these Terms of Service and applicable law; (3) any action or omission by you in violation of these Terms of Service or applicable law; or (4) our action or inaction in reliance upon oral, written or electronic instructions or information from you.
If you are a user from a jurisdiction that does not allow certain indemnification obligations, you agree that this section titled “Indemnity and Release” is intended to be as broad as permitted under the laws of such jurisdiction. If any portion of this section is held to be invalid under the laws of such jurisdiction, the invalidity of such portion will not affect the validity of the remaining portions of the applicable sections.
12. DISCLAIMER OF WARRANTIES
YOUR USE OF THE SITE, SERVICE, AND SUNFISH ACCOUNT IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SUNFISH EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. SUNFISH MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
If you are a user from a jurisdiction that does not allow the exclusion of certain types of warranties, you agree that this section titled “Disclaimer of Warranties” is intended to be as broad as permitted under the laws of such jurisdiction. If any portion of this section is held to be invalid under the laws of such jurisdiction, the invalidity of such portion will not affect the validity of the remaining portions of the applicable sections.
13. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT SUNFISH WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SUNFISH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF OR LOSS OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL SUNFISH’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID SUNFISH IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($1000).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
IF YOU ARE A USER FROM NEW JERSEY OR ANY OTHER JURISDICTION THAT DOES NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY OR SUCH OTHER JURISDICTION. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY OR SUCH OTHER JURISDICTION, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
14. NOT LEGAL, TAX, OR FINANCIAL ADVICE
SUNFISH DOES NOT INTEND TO PROVIDE YOU WITH ANY LEGAL, TAX, OR FINANCIAL ADVICE THROUGH THE SITES OR THE SERVICES. SUNFISH IS NOT A LAWYER, TAX ADVISOR, BROKER, OR FINANCIAL PLANNER. SUNFISH ENCOURAGES YOU TO CONSIDER CONSULTING AN ACCOUNTANT OR OTHER FINANCIAL ADVISOR AWARE OF YOUR INDIVIDUAL CIRCUMSTANCES BEFORE IMPLEMENTING ANY FINANCIAL STRATEGY OR MAKING OTHER FINANCIAL DECISIONS.
15 DISPUTE RESOLUTION BY BINDING ARBITRATION
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
This Dispute Resolution Provision (this “Dispute Resolution Provision”) sets forth the circumstances and procedures under which Claims (as defined below) will be arbitrated instead of litigated in court upon the election of either party. Neither you nor we will have the right to: (1) have a court or a jury decide the dispute; (2) engage in information-gathering (discovery) to the same extent as in court; (3) participate in a class action in court or in class arbitration; or (4) join or consolidate a claim with claims of any other persons. Arbitration procedures are simpler and more limited than rules applicable in court. The decision of the arbitrator is final and binding.
As used in this Dispute Resolution Provision, the term “Claim” means any claim, dispute, or controversy between you and Sunfish, or any of its agents or retailers, arising from or relating to these Terms of Service or the Services as well as any related or prior agreement that you may have had with us, including the validity, enforceability or scope of this Dispute Resolution Provision or the Terms of Service. “Claim” includes claims of every kind and nature, including, but not limited to, initial claims, counterclaims, crossclaims and third-party claims and claims based upon contract, tort, fraud and other intentional torts, statutes, regulations, common law and equity. The term “Claim” is to be given the broadest possible meaning that will be enforced. We will not elect to use arbitration under the Dispute Resolution Provision for any Claim that you properly file and pursue in a small claims court of your state or municipality so long as the Claim is individual and pending only in that court; any appeals from that court will be pursued only in arbitration.
As used in this Dispute Resolution Provision, the terms “we” and “us” will for all purposes mean Sunfish, our wholly or majority owned subsidiaries, affiliates, licensees, predecessors, successors, and assigns, and our agents, employees, directors and representatives. In addition, “we” or “us” will include any third party using or providing any product, service or benefit in connection with the Services (including, but not limited to, third parties who use or provide services, debt collectors and all of their agents, employees, directors and representatives) if, and only if, such third party is named as a co-party with us (or files a Claim with or against us) in connection with a Claim asserted by you. As solely used in this Dispute Resolution Provision, the terms “you” or “yours” will mean all persons or entities using the Services.
NEITHER YOU NOR WE ARE ENTITLED TO JOIN OR CONSOLIDATE DISPUTES BY OR AGAINST OTHERS IN ANY COURT ACTION OR ARBITRATION, OR TO INCLUDE IN ANY COURT ACTION OR ARBITRATION ANY DISPUTE AS A REPRESENTATIVE OR MEMBER OF A CLASS, OR TO ACT IN ANY ARBITRATION IN THE INTEREST OF THE GENERAL PUBLIC OR IN A PRIVATE ATTORNEY GENERAL CAPACITY, UNLESS THOSE PERSONS ARE BENEFICIARIES ON YOUR ACCOUNT. THIS IS SO WHETHER OR NOT THE CLAIM HAS BEEN ASSIGNED. FURTHER, NEITHER YOU NOR WE HAVE THE RIGHT TO LITIGATE A CLAIM IN COURT, SUBJECT TO THE SECTION TITLED EXCLUDED CLAIMS, OR HAVE A JURY TRIAL ON A CLAIM, OR TO ENGAGE IN DISCOVERY, EXCEPT AS PROVIDED FOR IN THE CODE OF PROCEDURES OF JAMS OR AAA.
Any Claim will be resolved, upon the election by you or us, by arbitration pursuant to this Dispute Resolution Provision and the code of procedures of the national arbitration organization to which the Claim is referred in effect at the time the Claim is filed. Claims will be referred to either Judicial Arbitration and Mediation Services (“JAMS”) or the American Arbitration Association (“AAA”), as selected by the party electing to use arbitration. If a selection by us of one of these organizations is unacceptable to you, you will have the right within thirty (30) days after you receive notice of our election to select the other organization listed to serve as arbitrator administrator. For a copy of the procedures, to file a Claim or for other information about these organizations, contact them as follows: email@example.com, http://www.jamsadr.com, or 1-800-352-5267. To file a Claim with JAMS, mail JAMS’ Demand for Arbitration form to: JAMS Atlanta Resolution Center, One Atlantic Center, 1201 West Peachtree, NW, Suite 2650, Atlanta, GA 30309. For a copy of relevant rules and procedure or for other information about AAA, write them, visit their website, or call them at: firstname.lastname@example.org, http://www.adr.org, or 1-800-778-7879. To file a Claim with AAA, submit AAA’s Filing Form at https://www.adr.org/Support.
If either party elects to resolve a Claim by arbitration, that Claim will be arbitrated on an individual basis. There is no right or authority for any Claims to be arbitrated on a class action basis or on bases involving Claims brought in a purported representative capacity on behalf of the general public, other account holders or other persons similarly situated. The arbitrator’s authority to resolve Claims is limited to Claims between you and us alone, and the arbitrator’s authority to make awards is limited to you and us alone. Furthermore, Claims brought by you against us or by us against you may not be joined or consolidated in arbitration with Claims brought by or against someone other than you, unless otherwise agreed to in writing by all parties.
Any arbitration hearing that you attend will take place in the federal judicial district of your residence. At your written request, we will consider in good faith making a temporary advance of all or part of the filing administrative and/or hearing fees for any Claim you initiate as to which you or we seek arbitration. At the conclusion of the arbitration (or any appeal thereof), the arbitrator (or panel) will decide who will ultimately be responsible for paying the filing, administrative and/or hearing fees in connection with the arbitration (or appeal). If and to the extent you incur filing, administrative and/or hearing fees in arbitration, including for any appeal, exceeding the amount they would have been if the Claim had been brought in the state or federal court which is closest to your billing address and would have had jurisdiction over the Claim, we will reimburse you to that extent unless the arbitrator (or panel) determines that the fees were incurred without any substantial justification.
This Dispute Resolution Provision is made pursuant to a transaction involving interstate commerce, and will be governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-16, as it may be amended (the “FAA”). The arbitration will be governed by the applicable Code, except that (to the extent enforceable under the FAA) this Dispute Resolution Provision will control if it is inconsistent with the applicable Code. The arbitrator will apply applicable substantive law consistent with the FAA and applicable statutes of limitations and will honor claims of privilege recognized at law and, at the timely request of either party, will provide a brief written explanation of the basis for the decision. In conducting the arbitration proceeding, the arbitrator will not apply the Federal or any state rules of civil procedure or rules of evidence. Either party may submit a request to the arbitrator to expand the scope of discovery allowable under the applicable Code. The party submitting such a request must provide a copy to the other party, who may submit objections to the arbitrator with a copy of the objections provided to the other party, within fifteen (15) days of receiving the requesting party’s notice. The granting or denial of such request will be at the sole discretion of the arbitrator who will notify the parties of his/her decision within twenty (20) days of the objecting party’s submission. The arbitrator will take reasonable steps to preserve the privacy of individuals, and of business matters. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision will be final and binding, except for any right of appeal provided by the FAA. However, any party can appeal that award to a three-arbitrator panel administered by the same arbitration organization, which will consider anew any aspect of the initial award objected to by the appealing party. The appealing party will have thirty (30) days from the date of entry of the written arbitration award to notify the arbitration organization that it is exercising the right of appeal. The appeal will be filed with the arbitration organization in the form of a dated writing. The arbitration organization will then notify the other party that the award has been appealed. The arbitration organization will appoint a three-arbitrator panel, which will conduct arbitration pursuant to its Code and issue its decision within one hundred twenty (120) days of the date of the appellant’s written notice. The decision of the panel will be by majority vote and will be final and binding.
This Dispute Resolution Provision will survive termination of your Sunfish Account, your use of the Services, these Terms of Service and any bankruptcy by you or us. If any portion of this Dispute Resolution Provision is deemed invalid or unenforceable under any principle or provision of law or equity, consistent with the FAA, it will not invalidate the remaining portions of this Dispute Resolution Provision, these Terms of Service or any prior agreement you may have had with us, each of which will be enforceable regardless of such invalidity.
These Terms of Service constitute the entire agreement between you and Sunfish and govern your use of the Service, superseding any prior agreements between you and Sunfish with respect to the Service; provided, however, that you may also be subject to additional terms and conditions for products or Services provided by Sunfish, as applicable. These Terms of Service will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Sunfish agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within California. The failure of Sunfish to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service, or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms of Service without the prior written consent of Sunfish, but Sunfish may assign or transfer these Terms of Service, in whole or in part, without restriction.