Terms of Service
Brown Bear Brown Bear Inc. ("BROWN BEAR", "We" or "Us") Internet Web Sites and Applications Terms of Service
Last updated: March 25, 2020
Effective as of: March 25, 2020
THE TERMS AND CONDITIONS SET FORTH BELOW (THE "TERMS") GOVERN YOUR USE OF THE BROWN BEAR WEBSITES LOCATED AT BROWNBEARBROWNBEAR.COM AND SPEAKNATIVEAPP.COM (THE "SITES"), THE SOFTWARE APPLICATIONS PROVIDED BY BROWN BEAR (THE "APPS") AND THE SERVICES AVAILABLE THROUGH THE SITES AND THE APPS (THE "SERVICES"). THESE TERMS ARE A LEGAL CONTRACT BETWEEN YOU AND BROWN BEAR AND GOVERN YOUR ACCESS TO, AND USE OF, THE SITES, THE APPS AND THE SERVICES. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE SITES OR ANY INFORMATION CONTAINED ON THE SITES, DO NOT INSTALL AND/OR USE THE APPS AND DO NOT USE AND/OR PURCHASE THE SERVICES. YOUR USE OF THE SITES SHALL AND/OR INSTALL OR USE OF THE APPS WILL AND/OR USE OR PURCHASE OF THE SERVICES WILL BE DEEMED TO BE YOUR AGREEMENT TO ABIDE BY EACH OF THE TERMS SET FORTH BELOW. BROWN BEAR MAY MAKE CHANGES TO THE CONTENT AND SERVICES OFFERED ON THE SITES OR THE APPS AT ANY TIME. BROWN BEAR CAN CHANGE THESE TERMS AT ANY TIME BY POSTING UPDATED TERMS OF SERVICE ON THE SITES. BROWN BEAR ALSO MAY SEND NOTICE OF A CHANGE TO USERS THAT HAVE PROVIDED THEIR EMAILS TO BROWN BEAR THROUGH THE SITES AND/OR THE APPS AND/OR THE SERVICES. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOU SHALL CEASE USING THE SITES, THE APPS AND THE SERVICES. IF YOU DO NOT CEASE USING THE SITES, THE APPS OR THE SERVICES, YOU WILL BE DEEMED TO HAVE ACCEPTED THE CHANGE.
NOTE: THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND TIME LIMIT ON SUBMITTING CLAIMS THAT AFFECT YOUR RIGHTS. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.
General Use Restrictions
BROWN BEAR provides internet-based Apps and Services. BROWN BEAR enables people to interact with each other via virtual group(s). To interact with other people via the Sites or the Apps, you are required to become a "User" by registering an account with your email address and providing login credentials, such as a password.
A virtual group, as used herein, is a virtual place for people to interact with each other over an indefinite period. Each virtual group is created for a particular purpose. For example, a virtual group can be created for entrepreneurs to network with each other; another virtual group can be created for English learners and instructors to practice English conversation. Any person who joins a virtual group is called a "Member" of the group. You may become a Member of a virtual group after providing introductory information about yourself (the Personal Profile). Your Personal Profile should contain a name and an introductory video. It may also contain any other relevant information you choose to provide in text or other forms. After you become a Member of a virtual group, any potential Member, current Member or future Member of the virtual group may have access to your Personal Profile.
When a Member accesses your Personal Profile, the Member may send you digital greetings. If you reply to the greetings, you and the Member become "connected". Once connected, you and the Member can exchange text messages, audio/video messages and invitations for real time conversation through a "Chat" at any time.
After you set up your Personal Profile, you may share with some or all Members of your availability during specific periods of time (the "Availability Windows".) In an Availability Window, a Member may send you video messages and invite you for real time conversations even if the Member and you are not connected.
After you set up your Personal Profile, you may publish a "Post", that is, a video message that you voluntarily share with all Users. When you create a Post, you may specify the topic of the Post. Your Post will be assigned one or more uniform resource locators (URLs), which may be used by anyone to access your Post via the Sites or the Apps. A Member may respond to your Post either by sending you a private video message or creating another Post.
When you reply to a Post, unless you choose to publish the reply message as a Post, the reply message will be kept private between you and the intended receiver of the reply message.
You may interact with other Users through Temporary Recorded Messages (TRMs). A TRM is an audio or a video message that a User voluntarily shares with other Users. Each TRM has an expiration time, after which the TRM will no longer be accessible to any User. You may choose to share a TRM with your Personal Profile or without your Personal Profile. If you choose to share a TRM with your Personal Profile, when a User accesses the TRM, your Personal Profile will be made available to that User together with the TRM. If you choose to share a TRM without your Personal Profile, when a User accesses the TRM, your Personal Profile will not be made available to that User together with the TRM. If you share a TRM, the TRM may be transcribed to text (the "Transcript") with speech recognition technology. Both the TRM and the Transcript may also be analyzed to yield a moderation report on the audio/video quality of the TRM and whether there is any inappropriate or objectionable content in the TRM. When a User access the TRM, both the Transcript and the moderation report may also be made available to that User.
You are expected to meet an openness standard (the "Standard") when using the Apps. At a minimum, your voice should be clearly heard and your face should be clearly seen in your Personal Profile and Posts. You should not include any objectionable scenes or languages in your Personal Profile and Posts. You should not behave in an objectionable way or use objectionable languages when interacting with other Members through text/audio/video messages or real time conversation.
A User may submit a report to BROWN BEAR if he or she believes that you have not met the Standard. Upon receiving such a report (or reports), BROWN BEAR and/or other Users may review your Personal Profile, Post and/or other information available, to determine if you have met the Standard. If BROWN BEAR determines that you have not met the Standard, you may not be able to access certain contents or functionalities of the Sites or the Apps, and BROWN BEAR may post warnings that you have not met the Standard when another User accesses your Personal Profile or Posts. If you update your Personal Profile and the updated Personal Profile does not meet the Standard, BROWN BEAR may make a previous Personal Profile that meets the Standard accessible if another User requests access to your Personal Profile.
You may have multiple different Personal Profiles and choose to use different Personal Profiles for different virtual groups.
BROWN BEAR also provides services based on speech recognition technology (the "SR Services") to help users improve their speaking skills. If you use the SR Services, BROWN BEAR may save any data generated in the process, including, but not limited to, your voice sample, speech recognition results, time you spend on each speech recognition task, etc. BROWN BEAR may further analyze the data to produce qualitative or quantitative assessment of your speaking skills. BROWN BEAR may share such assessment with you and other Users.
Generally, you may use the Sites, the Apps and the Services at no cost. By using the Sites, the Apps and/or the Services for free, you agree that BROWN BEAR can show you ads that third party advertisers pay us to promote. Although we do not directly share your personal information with any of the third party advertisers, such third party advertisers may attempt to collect your personal data independently, to deliver ads that are more relevant to you.
BROWN BEAR grants you a one-time, personal, non-exclusive, non-assignable and non-transferable license to use the Sites, the Apps and the Services solely for your personal or business use.
Except for the licenses set forth above, you acknowledge and agree that you have no right to modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit the Apps or the Services in any manner. You will not (and will not permit any third party to): (i) use the Apps or the Services for timesharing, out-sourcing, or service bureau purposes, in application service provider or managed service provider environment, or otherwise for the benefit of a third party; (ii) remove or modify any proprietary notices or labels from the Apps or the Services; or (iii) provide any content or information from the Apps or the Services to any unauthorized third party. Except as stated herein, you acknowledge that you have no right, title or interest in or to the Sites, the Apps or the Services.
Age Restrictions
You must be 18 years of age in order to use the Sites, the Apps and the Services.
Privacy Policy
Your use of the Sites, the Apps and the Services is governed by the BROWN BEAR Privacy Policy, which is available at https://brownbearbrownbear.com/privacy (the "Privacy Policy").
User Content
If you use the Apps or the Services, you may communicate information to other potential or current Users through the Apps or the Services, such as making yourself available in one or more Availability Windows, making self-introductions, having audio or video conversations, sending messages, sharing content through URLs, sharing audios, sharing videos, sharing documents, sharing notes or your screen, uploading presentations, streaming audios or streaming videos. If you use the SR Services, you will generate information regarding your speaking skills, such as your voice samples, speech recognition results, qualitative/quantitative assessment of your speaking skill, etc. Collectively, such information is referred to as "User Content". As between you and BROWN BEAR, you retain rights to such User Content. You grant to BROWN BEAR, a non-exclusive, worldwide license to use and reproduce the User Content to make the User Content available on the Apps and the Services to other potential or current Users through the Apps and the Services. BROWN BEAR DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES AND CONDITIONS WITH REGARD TO ALL USER CONTENT, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. You may elect to remove certain User Content from the Apps and the Services. You agree to comply with the conditions and restrictions set forth in the Section titled "Your Responsibilities."
Third Party Content
Certain information and other content that is not User Content may be the material of third-party licensors and suppliers to BROWN BEAR ("Third Party Content"). The Third Party Content is, in each case, the copyrighted and/or trademarked work of the creator/licensor. You agree to only display the Third Party Content on your device solely for your personal or business use in conjunction with your use of the Apps or the Services. You acknowledge and agree that you have no right to download, cache, reproduce, modify, display (except as set forth in this paragraph), edit, alter or enhance any of the Third Party Content in any manner unless you have permission from the owner of the Third Party Content. BROWN BEAR DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES AND CONDITIONS WITH REGARD TO THIRD PARTY CONTENT, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Payment and Electronic Communications
By using the Sites and/or the Apps and/or the Services, you consent to receiving electronic communications from BROWN BEAR. These electronic communications may include notices about applicable fees and charges related to transactional or other information concerning or related to the Apps or the Services. These electronic communications are part of your relationship with BROWN BEAR and you receive them as part of your use of the Apps or the Services. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
Your Responsibilities
YOU RETAIN OWNERSHIP OF ANY COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS APPLICABLE TO ANY INFORMATION YOU OWN AND SUBMIT TO BROWN BEAR THROUGH THE SITES, THE APPS OR THE SERVICES, INCLUDING USER CONTENT. If you pull content from other sources on the Internet or otherwise create User Content that includes or incorporates information or other content owned by a third party, you represent and warrant that you have all necessary rights and permissions to use such content and to create the User Content using that content. You further agree that you will not upload, post or otherwise make available on the Sites or the Apps or the Services any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right owned by a third party, and the burden of determining whether any material is protected by any such right is on you. You shall be solely liable for, and shall indemnify BROWN BEAR and its officers, directors, employees, stockholders, affiliates, agents, licensors, and business partners for, any damage resulting from any infringement of copyrights, trademarks, proprietary rights, or any other harm or losses resulting from any of your User Content. You represent and warrant that: (i) you own all User Content provided by you on or through the Sites, the Apps or the Services or otherwise have the right to grant the licenses to BROWN BEAR set forth in the Section entitled "User Content," and (ii) the provision of your User Content on or through the Sites, the Apps or the Services does not violate the privacy rights, publicity rights, trademark rights, copyrights, contract rights or any other rights of any person or entity. You agree to pay for all royalties, fees, damages and any other monies owing any person by reason of any User Content provided by you to or through the Sites, the Apps or the Services. BROWN BEAR shall have no obligation to pay you any fees or royalties for your User Content.
Acceptable Use
When making and/or submitting User Content to BROWN BEAR, or otherwise using the Sites and/or the Apps and/or the Services, you agree not to, without limitation:
· Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
· Use racially, ethnically, or otherwise offensive language.
· Conduct fraud.
· Discuss or incite illegal activity.
· Use explicit/obscene language or solicit/post sexually explicit images (actual or simulated).
· Submit any objectionable content
· Submit anything that exploits children or minors or that depicts cruelty to animals.
· Submit any copyrighted or trademarked materials without the express permission from the owner.
· Disseminate any unsolicited or unauthorized advertising, promotional materials, "junk mail", "spam", "chain letters", "pyramid schemes", or any other form of such solicitation.
This list of prohibitions is an example and is not complete or exclusive. These prohibitions do not require BROWN BEAR to monitor, police or remove any User Content or other information submitted by you or any other User; provided that BROWN BEAR shall have the right to monitor such User Content. BROWN BEAR reserves the right to (a) terminate your access to the Sites and your ability to use the Apps or the Services and/or upload User Content and (b) refuse, delete or remove any User Content; in either case with or without cause and with or without notice, for any reason or no reason, or for any action that BROWN BEAR determines is inappropriate or disruptive to the Sites, the Apps, the Services or to any other User of the Sites and/or the Apps and/or the Services.
Unauthorized Activities
Unauthorized use of any User Content, the Sites, the Apps, the Services or Third Party Content contained on the Sites or the Apps may violate certain laws and regulations. You agree to indemnify and hold BROWN BEAR and its officers, directors, employees, stockholders, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys' fees and costs of defense) BROWN BEAR or any other such indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third party based on your submitted User Content or your use of the Sites, the Apps, the Services or Third Party Content that violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third party. BROWN BEAR may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at BROWN BEAR's discretion, BROWN BEAR will cooperate with law enforcement agencies in any investigation of alleged illegal activity on the Sites, the Apps, the Services or on the Internet.
Links to Third Party Sites
The Sites, the Apps or the Services may be linked to other sites that are not BROWN BEAR sites. BROWN BEAR is providing these links to you only as a convenience, and BROWN BEAR is not responsible for such linked sites, including, without limitation, the content or links displayed on such sites. You further understand that such third party sites are governed by separate agreements available on such third party sites and you agree to be bound by the terms and conditions of such agreements. Your dealings with other entities linked on or through the Sites, the Apps or the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such other entity. You agree that BROWN BEAR shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the promotion of such other entities through the Sites, the Apps or the Services. The use of certain Services also may require you to agree to additional terms and conditions with respect to the use of such Services.
Proprietary Rights
"Brown Bear Brown Bear", "Brown Bear", "SpeakNative", the Logo of the Brown Bear App and the Logo of the SpeakNative App are trademarks of BROWN BEAR in the United States. Other trademarks, names and logos on the Sites, the Apps or the Services are the property of their respective owners.
Unless otherwise specified in these Terms, all information and screens appearing on the Sites or the Apps or as part of the Services, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of BROWN BEAR, Copyright © 2018 BROWN BEAR BROWN BEAR INC. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
Copyright and Trademark Infringements
Notification:
BROWN BEAR respects the intellectual property of others, and we ask you to do the same. BROWN BEAR may, in appropriate circumstances and at BROWN BEAR's discretion, terminate access to the Sites, the Apps or the Services to Users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or a trademark infringement and appears on the Sites or the Apps, please provide BROWN BEAR's copyright agent the following information:
· A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
· Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
· Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit BROWN BEAR to locate the material.
· Information reasonably sufficient to permit BROWN BEAR to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
· A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
· A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
BROWN BEAR's agent for notice of claims of copyright or trademark infringement on the Sites or the Apps can be reached as follows:
By mail:
Brown Bear Brown Bear Inc.
DMCA Administrator
4471 Macbeth Circle
Fremont, CA 94555
By phone: 404-395-1669
By e-mail: dmca@brownbearbrownbear.com
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Counter-Notification:
If you elect to send us a counter notice, to be effective it must be a written communication provided to our designated agent that includes substantially the following (please consult your legal counsel or see 17 U.S.C. Section 512(g)(3) to confirm these requirements):
· Your physical or electronic signature.
· Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
· A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
Such written notice should be sent to our designated agent as follows:
By mail:
Brown Bear Brown Bear Inc.
DMCA Administrator
4471 Macbeth Circle
Fremont, CA 94555
By phone: 404-395-1669
By e-mail: dmca@brownbearbrownbear.com
Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
Only the intellectual property rights owner may report potentially infringing items through BROWN BEAR's reporting system set forth above. If you are not the intellectual property rights owner, you should contact the intellectual property rights owner and they can choose whether to use the procedures set forth in these Terms.
Disclaimer of Warranties
Your use of the Sites and/or the Apps and/or the Services is at your own risk. Neither the User Content nor the Third Party Content have been verified or authenticated in whole or in part by BROWN BEAR, and they may include inaccuracies or typographical or other errors. BROWN BEAR does not warrant the accuracy or timeliness of the Services, User Content or the Third Party Content contained on the Sites or the Apps. BROWN BEAR has no liability for any errors or omissions in the Services, User Content and/or the Third Party Content, whether provided by BROWN BEAR or our licensors.
BROWN BEAR, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THE SITES, THE APPS, THE SERVICES, ANY USER CONTENT, OR THIRD PARTY CONTENT, RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THE SITES AND/OR THE APPS AND/OR THE RESULTS OBTAINED FROM THE USE OF THE SITES OR THE APPS OR THE SERVICES, INCLUDING WITHOUT LIMITATION THE USER CONTENT AND THE THIRD PARTY CONTENT. SPECIFICALLY, BROWN BEAR MAKES NO EXPRESS OR IMPLIED REPRESENTATION THAT THE USE OF THE SERVICES OR THE APPS OR THE SITES WILL PROVIDE AN EFFECTIVE SOCIAL MEDIA SOLUTION OR POLICY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITES, THE APPS, THE SERVICES, USER CONTENT, THIRD PARTY CONTENT, AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THE SITES OR THE APPS IS PROVIDED TO YOU ON AN "AS IS," "AS AVAILABLE" AND "WHERE-IS" BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. BROWN BEAR DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR DEVICE.
Limitation of Liability
BROWN BEAR SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY OF THE THIRD PARTY CONTENT OR USER CONTENT TO OR FROM THE SITES OR THE APPS OR THROUGH THE SERVICES. IN NO EVENT SHALL BROWN BEAR BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF BROWN BEAR KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE AND BROWN BEAR SHALL NOT BE LIABLE IN THE AGGREGATE FOR MORE THAN THE GREATER OF (A) ONE HUNDRED DOLLARS ($100.00) OR (B) ANY AGGREGATE FEES PAID BY THE USER TO BROWN BEAR, AS APPLICABLE.
Local Laws; Export Control
BROWN BEAR controls and operates the Sites from its headquarters in the United States of America and the User Content and/or Third Party Content may not be appropriate or available for use in other locations. If you use the Sites, the Apps or the Services outside the United States of America, you are responsible for following applicable local laws, including, without limitation, all applicable export control laws and regulations.
Dispute Resolution and Binding Arbitration Provision
Definitions. As used in this Arbitration Provision, "Claims" means all claims, disputes, or controversies between you and us of any nature or kind, whether pre-existing, present, or future, that arise from or relate to the Apps and the Services. This includes but is not limited to disagreements about the validity, enforceability, or scope of this Arbitration Provision.
Informal Efforts to Resolve Dispute. If a dispute arises between you and BROWN BEAR, you should first attempt to resolve it by contacting BROWN BEAR by email at contact@brownbearbrownbear.com. We will attempt in good faith to resolve all Claims submitted this way within fifteen (15) days of receipt.
Agreement to Arbitrate; Right to Opt Out. If informal efforts to resolve Claims fail or are not used, you agree that any and all Claims will be resolved exclusively by binding arbitration as described herein, except that: (i) you may assert Claims in a small claims court in the United States if your Claims meet the court's jurisdictional requirements; and (ii) either party may pursue Claims and relief in a court of competent jurisdiction regarding the validity and/or infringement of a party's intellectual property rights.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS VERY LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD TO YOU ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND FORMS OF RELIEF AS A COURT COULD (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF AS WELL AS STATUTORY DAMAGES), AND MUST FOLLOW THE LAW AND TERMS OF THIS AGREEMENT AS A COURT WOULD. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS AND PRIVATE ATTORNEY GENERAL ACTIONS ARE NOT PERMITTED.
IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY US IN WRITING WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST ACCEPT OR HAVE ACCESS TO THESE TERMS BY MAILING OR FAXING AN OPT-OUT REQUEST TO US. YOUR WRITTEN NOTIFICATION MUST INCLUDE YOUR NAME, ADDRESS, THE EMAIL ADDRESS YOU USED TO REGISTER WITH US, AND A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH US THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH US OR THE DELIVERY OF SERVICE TO YOU BY US. IF YOU HAVE PREVIOUSLY NOTIFIED US OF YOUR DECISION TO OPT OUT OF ARBITRATION, YOU DO NOT NEED TO DO SO AGAIN.
Arbitration Fees. The allocation and payment of all filing, administration and arbitrator fees will be governed by the AAA's rules which limit the amount a consumer is required to pay. If the arbitrator determines that your Claims are not frivolous applying the standards of the Federal Rules of Civil Procedure, We agree to reimburse you the amount of all filing, administration and arbitrator fees you are required to pay for the arbitration.
Arbitration Rules. The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules if you are a resident of the United States; if your use of the Apps and the Services has been principally for personal or household use, the AAA's Supplementary Procedures for Consumer-Related Disputes will also apply. If you are a resident of a country other than the United States, the arbitration will be conducted by the AAA's International Centre for Dispute Resolution in San Francisco, California, under its rules for international arbitration, and you and we agree to submit to the personal jurisdiction of the U.S. federal court in San Francisco, California, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. In the event of a conflict or inconsistency between the applicable arbitration rules and this Arbitration Provision, this Arbitration Provision shall govern and control.
The arbitration will be conducted in the English language by a single arbitrator who is an attorney-at-law with experience in consumer and technology transactions and who is also a member of the AAA National Roster of Arbitrators. If you and we can't agree on a mutually acceptable arbitrator within fifteen (15) days after the arbitration is initiated, then the AAA will pick a neutral arbitrator who meets the qualifications. The AAA's rules are available at www.adr.org.
Initiating Arbitration. To begin an arbitration proceeding, you must follow the procedures specified by the applicable AAA rules as described on their website at www.adr.org.
Time Restriction. YOU MUST FILE A COMPLAINT WITH THE AAA OR A PERMITTED COURT WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A CLAIM, OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS OR DISPUTE.
Arbitration Process. Because appearing in person for arbitration can be unduly burdensome in the circumstances, arbitration under this Arbitration Provision shall not require any personal appearance by the parties or witnesses unless mutually agreed. Either or both parties may participate by written submission, telephone calls, or other means of remote communication as allowed by the arbitrator. The arbitration proceedings will be conducted in the English language at a location designated by the AAA that is the most convenient for you.
The arbitration can only decide Claim(s) between you and us, and may not consolidate or join the claims of other persons that may have similar claims. There shall be no pre-arbitration discovery except as provided for in the applicable AAA rules. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information.
In conducting the arbitration proceeding, the arbitrator will apply the law of the State of California (without regard to its conflicts of law provisions) including U.S. federal law for matters covered by federal law (e.g. the Federal Arbitration Act). At the request of any party, the arbitrator shall provide a brief written explanation of the basis for the decision and award. 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 on the parties except for any right to appeal under the AAA rules or the Federal Arbitration Act.
Recovery and Attorneys' Fees. If the arbitrator rules in your favor on the merits of any Claim you bring against us and issues you an award that is greater in monetary value than our last written settlement offer made to you before written submissions are made to the arbitrator, then we will (i) pay you 150% of your arbitration damages award, up to $1,000 over and above your damages award; and (ii) pay your attorneys, if any, the amount of attorneys' fees, and reimburse any expenses (including expert witness fees and costs) that you or your attorney reasonably incurred for investigating, preparing, and pursuing your Claim in arbitration. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of such fees, expenses, and the alternative payment and the attorney premium at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits. The right to attorneys' fees and expenses discussed above supplements any right to attorneys' fees and expenses you may have under applicable law, although you may not recover duplicative awards of attorneys' fees or costs. If your use of the Apps or the Services was principally for personal or household use, BROWN BEAR waives any right it may have to seek an award of attorneys' fees and expenses from you in connection with any arbitration of Claims between us.
Confidentiality. You and we shall keep confidential any information exchanged during the arbitration as well as the decision of the arbitrator made with respect to any Claim(s) arbitrated under this Arbitration Provision and, with the exception of disclosure to your or our attorneys, accountants, auditors, and other legal or financial advisors, neither party shall disclose such information or decision to any other person unless required to do so by law.
Continuing Obligation to Arbitrate; Severability. This Arbitration Provision shall survive termination of the Terms and your access to the Sites or the Apps or use of the Services and related agreements. If any portion of this Arbitration Provision is deemed invalid or unenforceable at law, such invalid or unenforceable provision will be interpreted, construed or reformed to the extent required to make it valid and enforceable, and this shall not invalidate the remaining portions of this Arbitration Provision.
General
California law and controlling U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. If any of these Terms are deemed invalid or unenforceable at law, such invalid or unenforceable provision will be interpreted, construed or reformed to the extent required to make it valid and enforceable, and this shall not invalidate the remaining portions of these Terms. BROWN BEAR's failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and BROWN BEAR and supersede all prior or contemporaneous negotiations, discussions or agreements between you and BROWN BEAR about the Sites, the Apps and the Services. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability, arbitration and general provisions shall survive any termination of these Terms.