Effective Date: March 16, 2018.
– – –
1.1 Important – this agreement (“Agreement”) is a legal document between you (either an individual or entity) (“You” or “Your”) and NexusLab Inc., DBA AppearMe (hereinafter “AppearMe,” “We”, “Us” or “Our”) that sets forth the legal terms and conditions for your access to and use of www.appearme.com, www.appearme.co and any other website owned and operated by AppearMe (the “website(s)” or “Site(s)”) and any AppearMe software, including any AppearMe mobile applications (the “App(s)”) or other services offered by AppearMe from time to time (collectively, the Website(s), App(s) and services are referred to as “Service(s)”).
1.2 Why should you read these Terms? These terms create a legally binding agreement between you and us. By accessing or using AppearMe, you are accepting this Agreement and agreeing to use the Services in accordance with the terms and conditions in this Agreement. Some of our Services may have additional rules, policies, and procedures. Where such additional terms apply, we will make them available for you. A copy of these Terms and Conditions may be downloaded, saved and printed for your reference.
1.3 You confirm that you can enter the Agreement. As a condition of your use of the Services, you confirm and warrant to us that you meet the eligibility requirements set out in Section 4.3 and have the right, authority, and capacity to enter into these terms.
1.4 What to do if you don’t want to accept these terms? If you do not agree with all of the provisions of these terms, do not access and/or use AppearMe.
2. Information about AppearMe and contact details
2.1 Who we are. AppearMe is the D.B.A. for NexusLab Inc., a California corporation.
2.2 Where we are based. Our registered office is at 801 N. Brand Blvd., Suite 210 Glendale, CA 91203
2.3 How to contact us. You can contact us by writing to us at 801 N. Brand Blvd., Suite 210 Glendale, CA 91203. Our phone number is (818) 744-3505.
2.4 How we may contact you. If we have to contact you we may do so by telephone or by email or postal mail sent to the number, email and/or address you provided when you registered for an Account.
2.5 Email counts as “in writing”. When we use the words “writing” or “written” in these Terms, this includes emails. For contractual purposes, you consent to receiving communications from AppearMe by email.
3. Changes to the Site and These Terms
3.1 Small changes. We reserve the right to change the terms and conditions of this Agreement or to modify or discontinue the Services offered by AppearMe at any time. Those changes will go into effect on the effective date shown in the revised agreement. If we change this Agreement, we will give you notice by posting the revised agreement on the applicable website(s) or app(s) and/or sending an email notice to you using the contact information provided by you. Therefore, you agree to keep your contact information up-to-date and that notice sent to the last email address you provided shall be considered effective. In addition, it is your responsibility to check this Agreement every time you submit an appearance or accept an appearance or otherwise log in or use the system to see if it has been updated.
3.2 By continuing to use any Services after the new effective date, you agree to be bound by such changes. If the modified terms are not acceptable to you, please cease using the Services.
4. Service Description and Participation/Account Creation/Eligibility
4.2 Account Creation. In order to access certain features of the Website and App and to use certain Services, you may be required to register to create an account (“Account”). In connection with setting up your Account with AppearMe, we may supply you with a user identification and/or password. In connection with any future use, you may be asked to input your user identification and/or password from time to time. You agree to be responsible for all activity that occurs under your Account and agree to be responsible for maintaining the security of your password and user identification. You agree to immediately notify AppearMe of any unauthorized use of your user identification or password or any other breach of security. You can delete your Account at any time, for any reason, by pressing the delete button in your Account. Note that the Appearance Attorneys cannot delete their account if they have active cases.
4.3 Eligibility. Only licensed attorneys may sign up and use AppearMe. If your license becomes suspended, terminated or inactive for any reason, you must immediately delete your account and stop using the app.
5. Acceptable Use
5.1. You are responsible for your use of the Services, and for any use of the Services made using your Account. Our goal is to create a positive experience in connection with our Services. To promote this goal, we prohibit certain kinds of conduct that may be harmful to other users or to AppearMe.
5.2. You agree not to attempt to contact each other directly about the Services outside of the Services for a period of 6 months after the date of your last visit to the Services, except as may be permitted by these Terms or AppearMe, or otherwise circumvent your relationship with AppearMe.
5.3. When you use the Services, you agree that you will not:
5.3.1. violate this Agreement or any AppearMe rules regarding use of the Services;
5.3.2. violate any law or regulation;
5.3.3. breach any agreements you enter into with any third parties;
5.3.4. violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, or other legal rights;
5.3.5. engage in any behavior that is abusive, harassing, indecent, profane, obscene, hateful or otherwise objectionable, including sexual misconduct;
5.3.6. stalk, harass, or harm another individual;
5.3.7. for the purpose of misleading others, create a false identity of the sender or the origin of a message, forge headers or otherwise manipulate identifiers in order to disguise the origin of any material transmitted through the Services or in connection with AppearMe;
5.3.8impersonate any person or entity or perform any other similar fraudulent activity;
5.3.9. harvest or otherwise collect or store any information (including personally identifiable information) about other users of the Services, including e-mail addresses, without the express consent of such users and AppearMe or alter transmission data;
5.3.10. collect, distribute or gather personal or aggregate information, including Internet, e-mail or other electronic addresses, about AppearMe’s customers or other users;
5.3.11. upload, post, e-mail or otherwise transmit any material that constitutes unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation or commercial electronic message;
5.3.12. use any means to scrape or crawl any Web pages or Content contained in the Websites or Apps (although AppearMe may allow operators of public search engines to use spiders to index materials from the Websites for the sole purpose of creating publicly available searchable indices of the materials, and AppearMe reserves the right to revoke these exceptions either generally or in specific cases);
5.3.13. attempt to circumvent any technological measure implemented by AppearMe or any of AppearMe’s providers or any other third party (including another user) to protect the Websites or Apps; to the extent permitted by applicable law, attempt to decipher, decompile, disassemble, or reverse-engineer any of the software used to provide the Websites or Apps; or
5.3.14. advocate, encourage, or assist any third party in doing any of the foregoing.
5.4 Attorney Conduct, Non-compete and Liquidation Damages for Breach Thereof
5.4.1. Users agree that under no circumstances may he/she solicit or agree to represent a party to the case for which an appearance is made. User agrees that said party is the client of the attorney placing the order for the appearance. Soliciting business from such party, making any derogatory statements about the attorney placing the order, encouraging and/or causing in any way for the party to switch attorneys shall be deemed a material breach of this non-compete clause.
5.4.2. In the event of such breach, breaching attorney (the appearance attorney) shall be liable to the attorney placing the order for liquidated damages computed as the greater of the income lost by the attorney placing the order, the income generated by the attorney taking over the case, or the reasonable fees which could have been charged by the attorney taking over the case.
5.4.3. Appearance Attorney also understands that this breach will be a direct, intentional, and unethical violation of this agreement, giving grounds for termination of his/her account with AppearMe and for reporting his conduct to the State Bar. AppearMe is designed to be a safe, useful and reliable community for all of its attorney members (not an opportunity to harm or disadvantage each other through unethical conduct).
6. Web and Mobile Application License
6.1. Subject at all times to this Agreement, if you elect to download the App, the following also applies: AppearMe grants you a license to download, install and use a copy of the App on a single mobile device or computer that you own or control solely for your personal and professional use on the basis that the license is:
6.1.1. revocable – we have the right to remove your ability to use the App in accordance with these Terms;
6.1.2. non-exclusive – other people can access and use the App;
6.1.3. non-transferable – you can’t pass this right to someone else or sublicense the license; and
6.1.4. limited – the license does not extend beyond what has just been described above.
6.2. Furthermore, with respect to any App accessed through or downloaded from an App Store such as Google Play or the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application: (1) on a product that runs the operating system for which it was intended and (2) as permitted by the “Usage Rules” set forth in the corresponding App Store. Use of the App from a third party App Store is also subject to the provisions of Section 9.
7. Ownership & Copyright
7.1. Ownership. The parties agree that all proprietary rights in the Services are and will remain the property of AppearMe. This includes non-personally identifiable aggregate data collected by AppearMe in connection with providing the Services, including usage statistics and traffic patterns, any and all rights, title and interest to which are hereby assigned to AppearMe by you.
7.2. Copyright Restrictions.
7.2.1. The Websites and Apps, including but not limited to software, content, text, photographs, images, graphics, video, audio and the compilation as a whole (“Content”), are copyrighted under U.S. copyright, trademark and other laws by NexusLab. Inc. or its licensors, unless otherwise noted. You must abide by all additional copyright notices or restrictions contained on the Websites, Apps or elsewhere. You may not delete any legal or proprietary notices in the Websites, Apps or elsewhere.
7.2.2. Except as noted in Section 6 above: (1) the Websites and Apps may not be used, displayed, copied, reproduced, distributed, republished, uploaded, downloaded, posted, transmitted, mirrored or modified; and (2) except to the extent permitted by applicable law, you may not redistribute, sell, translate, modify, reverse-engineer or reverse-compile or decompile, disassemble or make derivative works of the Websites, Apps or any Content or components that are available on the Websites or Apps.
7.2.3. You agree not to interfere or take action that results in interference with or disruption of the Websites or Apps or servers or networks connected to the Websites or Apps. You agree not to attempt to gain unauthorized access to other computer systems or networks connected to the Websites or Apps. AppearMe reserves all other rights. Except as expressly provided herein, nothing on the Websites or as part of the Services will be construed as conferring any license under AppearMe’s and/or any third party’s intellectual property rights. Notwithstanding anything herein to the contrary, AppearMe may revoke any of the foregoing rights and/or your access to the Services, including the App, or any part thereof, at any time without prior notice.
7.3. Copyright Permission. Permission is granted for viewing the Website pages and Content on the Internet and via the Apps for your own informational purposes, subject to the terms and conditions of this Agreement. In the event that information is downloaded from the Websites or Apps, the information, including any Content, data or files incorporated in or generated by the Websites or Apps are owned by AppearMe and AppearMe retains complete title to the information and all property rights therein. All other rights are reserved. Reproduction of multiple copies of the Content, in whole or in part, for resale or distribution, is strictly prohibited.
7.4. Content License. As part of the Services, we may, if our sole discretion, permit you to post, upload, publish, submit or transmit certain content (“Your Materials”). We may also post a photograph or other visual likeness of you (“Your Image”). By making available any of Your Materials on or through the Services or if we make available Your Image on or through the Services, you (i) hereby grant to AppearMe the right to use Your Materials and Your Image as necessary to provide the Services, promote the Services and improve the Services, and (ii) waive any and all rights that you may have in and to Your Materials and Your Image with respect to these uses. AppearMe does not claim any ownership rights in any of Your Materials and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit any of Your Materials. If you do not want to grant us permission to use Your Material or Your Image in accordance with this Agreement, please do not post, upload, publish, submit or transmit Your Materials or Your Image.By supplying information to AppearMe you grant us full and unrestricted rights to use such information as we deem appropriate, including but not limited to compiling, monetizing, reselling, etc…
7.5. Copyright Policy. You acknowledge and agree that you are solely responsible for all of Your Materials that you make available through the Services. You represent and warrant that: (1) you either are the sole and exclusive owner of all of Your Materials that you make available through the Services or you have all rights, licenses, consents and releases that are necessary to grant to AppearMe (or, the Appearance Attorney or Customer as applicable) the rights in Your Materials, as contemplated by this Agreement; and (2) neither Your Materials nor your posting, uploading, publication, submission or transmittal of Your Materials or AppearMe’s (or, the Appearance Attorney’s or Customer’s as applicable) use of Your Materials or Your Image (or any portion thereof) on, through or by means of the Services will infringe, misappropriate or violate any patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
7.6. Trademarks/Use of Name or Brand. All Content, product names, trademarks, service marks and logos appearing as part of the Services, unless otherwise noted, are wholly owned or validly licensed by AppearMe. Trademarks, service marks and logos owned by third parties remain the property of such third parties.
7.7. Feedback. If you submit any ideas, suggestions or testimonials “Feedback” to AppearMe, you hereby transfer to us all rights in such Feedback without charge. You also agree that AppearMe shall have the right to use and fully exploit such Feedback in any manner that we consider appropriate, including posting on the Internet. Please note that the Feedback you provide to us will not be treated as confidential information – accordingly, you agree not to submit to us any information or ideas that you consider to be confidential or proprietary.You may only submit ideas and material if you have obtained appropriate copyright and other permission to submit such materials and to permit AppearMe to use such material without restriction. You agree that you will not violate or infringe the rights of third parties, including privacy, publicity and intellectual and proprietary rights, such as copyright or trademark rights.
8. Rules of Conduct & Terms of Services
8.1.1. Attorney of Record is the individual who has a valid retainer agreement executed with the client for which an appearance is at issue.
8.1.2. Appearance Attorney is the individual who is a licensed attorney who has agree to make the subject appearance on behalf of the attorney of record.
8.1.3. Appearance is the actual conduct of personally and physically attending the sight (courtroom, office or other premises) where the subject appearance or proceeding is scheduled to take place.
188.8.131.52. If the appearance type is not one that is mentioned when creating an appearance request and accepted by the appearance attorney, it is not considered to be an appearance and the Appearing attorney has the right to bill the Attorney of Record a reasonable hourly fee for the word done.
8.2. What do we offer
8.2.1. AppearMe is a real-time on-demand software that uses the latest technology to connect independent entities. The services offered by AppearMe are not Appearances or Court Hearing coverage. AppearMe only connects individuals licensed attorneys with each other to fulfill a specific task for each other.
8.2.2. AppearMe facilitates the connection and takes care of the payment processing for one appearance at a time, with the appearance not lasting longer than 1.5 hours (ninety minutes).
184.108.40.206. The payments covered by AppearMe are those for one appearance and/or a maximum of 1.5 hours (ninety minutes). Any payments due to the Appearance Attorney because of multiple appearances packed into one request or overtime appearances are to be paid separately and in addition to the base rate paid through the AppearMe application. The additional rates are hourly and are equal to the base/first appearance rate mentioned/charged.
220.127.116.11.1. As an example: an appearance that costs $90 (as a base price for 1-1.5 hours) and lasts 2 hours and 30 minutes (or 1 hour and 50 minutes) will cost a total of $180 to the Attorney of Record. Each overtime appearance is to be paid to the Appearance Attorney in the amount of the base rate listed but calculated hourly. An appearance this is over the min 1.5 hours by more than 10 minutes is counted as a full hour.
8.2.3. Each Attorney of Record is still and always responsible for his/her appearance, hearing or other event that he/she is looking to find a coverage for.
8.2.4. Each Appearance Attorney is liable and responsible for the appearance he/she has accepted through the AppearMe web or mobile app. In essence, AppearMe is the equivalent of a staffing company which connects attorneys of record who wish to hire appearance attorneys for limited scope work (a single appearance) on independent contractor basis.
8.3. How it works
8.3.1. All users need to register and submit their attorney application for review. Review and approval of new applications usually lasts 24 hours but is no way guaranteed.
8.3.2. Submit your appearance.
18.104.22.168. The Attorney of Record is responsible for submitting an appearance request where all information is true and accurate. The Appearance Attorney will rely on the information provided to make the necessary appearance.
22.214.171.124.1. If the information entered changes later on or is not accurate as determined by facts or the Appearance Attorney during the appearance, constitutes a breach. The Attorney of Record is liable for all and any subsequent outcomes and may be subject to hourly billing if the scope of the resulting work goes beyond that minimum described herein or on the AppearMe page for prices.
126.96.36.199. Submitting an appearance request does not suggest and/or guarantee that an appearance attorney is found or matched with your request. Your hearing has no appearance coverage until (a) you receive a notification through our system that someone has accepted your appearance request AND (b) you have physically called and confirmed the appearance with the appearance attorney who has accepted your request.
8.3.3. Accepting an appearance.
188.8.131.52. Accepting an appearance is a 2-clicks verification process. After accepting to appear the Appearance Attorney becomes responsible for making the appearance and fulfilling his/her duties to the fullest.
8.3.4. Cancelling an appearance
184.108.40.206. Attorneys of Record
220.127.116.11.1. Attorneys of Record can cancel an appearance request that is not yet accepted at any time.
18.104.22.168.2. Appearances that have been accepted by an Appearance Attorney can be cancelled no later than 24 hours before the appearance date and time.
22.214.171.124.3. Appearances can be cancelled within the 24 hours of the appearance time by contacting AppearMe and will result in no refunds back. The Appearance Attorney on file will receive his/her portion even without the obligation to appear.
126.96.36.199. Attorneys of Record
188.8.131.52.1. The attorney of record can request from the Attorney of Record to cancel the appearance and relieve that Appearance Attorney from the duty to appear.
8.3.5. Closing and Reporting. The Attorney of Record has 24 hours to close the appearance on AppearMe and submit a report after the end of the appearance.
184.108.40.206. By signing up and submitting any info through the web or mobile app, you give AppearMe permission to use your information as needed. Your profile information as well as any case and appearance related information can be sent to other members, affiliates and constituents of AppearMe.
220.127.116.11. You give AppearMe permission to contact you via email, phone, physical address or any other means provided.
8.4.1. Payments are processed and managed using Stripe.
8.4.2. To submit payments, Attorneys of Record have to add a valid credit card. before creating an appearance request.
8.4.3. To receive payments, Appearance Attorneys must submit a checking account info. The funds will be transferred through direct deposit into your checking account on file.
18.104.22.168. Funds are transferred immediately upon the completing of “Close and report” task by the Appearance Attorney at the end of each appearance. In addition, the funds are transferred no sooner than 24 (twenty four) hours after the Appearance Attorney accepts the offer to appear.
8.4.4. All attorneys must submit a W-9 form. Following the IRS rules governing payments made out to independent contractors, any funds over $400 will not be distributed until all necessary documents are filed to and processed by AppearMe.
22.214.171.124. AppearMe charges a small fee for processing payments, developing and maintaining the necessary servers and software
9. Our Responsibility for Loss or Damage
9.1. To consumer clients
9.1.1. Disclaimer. Appearme does not make any representations, conditions or warranties, express or implied, including without limitation, warranties of merchantability, satisfactory quality, fitness for a particular purpose, title, compatibility, security, accuracy, or usefulness with respect to the services and/or quality of Appearance by any Appearance Attorney.. You agree that any claims or causes of action arising out of any action or inaction of any Appearance Attorneys or customer, shall be exclusively between you and the Appearance Attorney or customer (as applicable) and you will hold harmless and indemnify AppearMe against any claims or loss. The services are provided “as is.” You agree to use the services solely at your own risk. You assume full responsibility and risk of loss resulting from your use of the services. Although we intend to take reasonable steps to prevent any damages to you, we are not liable for any damages or harm attributable to the foregoing. You understand and acknowledge that appearme only provides a platform for communication between appearance attorneys and customers, and as such appearme disclaims any and all liability relating to your interactions with any appearance attorney(s) or other customer(s). Any conduct or representations made to you by any Appearance Attorney(s) are made solely at the discretion of the appearance attorney andAppearMe has no way to monitor or validate, and shall not be responsible or liable in any way for, any conduct,representations or statements made to you by the Appearance Attorney(s). You understand and acknowledge that AppearMe shall have no liability to you for any conduct, statements or representations made by the Appearance Attorney to you as a result of your use of the service(s).
9.1.2. AppearMe is not designed to meet all your needs. You acknowledge that AppearMe has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the site meet your requirements.
9.1.3. We are not responsible to you for any foreseeable or unforeseeable loss and/or damage caused by us of AppearMe.
9.1.4. We are not liable for business losses., loss of profit, loss of business, business interruption, or loss of business opportunity.
9.1.5. No liability for damage caused by unauthorized access. We are not responsible for any loss or damage incurred as a result of unauthorized access to your account.
9.2. To lawyer clients and appearance attorneys
9.2.1. Disclaimer.AppearMe does not make any representations, conditions or warranties, express or implied, including without limitation, warranties of merchantability, satisfactory quality, fitness for a particular purpose, title, compatibility, security, accuracy, effectiveness, competency, quality or usefulness with respect to the services and/or performance of appearance or any appearance attorney. you agree that any claims or causes of action arising out of any action or inaction of any appearance attorneys or customers, shall be exclusively between you and the appearance attorney or customer (as applicable) and notAppearMe. the services are provided “as is.” you agree to use the services solely at your own risk. you assume full responsibility and risk of loss resulting from your use of the services. although we intend to take reasonable steps to prevent any damages to you, we are not liable for any damages or harm attributable to the foregoing. you understand and acknowledge thatAppearMe only provides a platform for communication between appearance attorneys and customers, and as suchAppearMe disclaims any and all liability relating to your interactions with any appearance attorney(s) or other customer(s). any conduct or representations made to you by any appearance attorney(s) are made solely at the discretion of the appearance attorney andAppearMe has no way to monitor or validate, and shall not be responsible or liable in any way for, any conduct, representations or statements made to you or on your behalf by the appearance attorney(s). you understand and acknowledge that AppearMe shall have no liability to you for any statements or representations made by the appearance attorney to you or on your behalf as a result of your use of the service(s).
9.2.2. Limited liability. to the maximum extent permitted by applicable laws, you agree thatAppearMe, its affiliates, agents and their respective officers, directors, shareholders, employees, contractors, representatives and agents will not be liable whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for: (a) any loss of profits; (b) any indirect or consequential loss; or (c) to the extent that you experience any loss or damages resulting from your use of the services, interactions with appearance attorney(s) or other customers; (d) or for any other loss.
9.2.3. Indemnification. you agree to indemnify and hold harmlessAppearMe, its affiliates, agents, contractors, and their respective officers, directors, shareholders, employees, contractors, representatives and agents, from any and all liabilities, claims, expenses and damages, including reasonable attorneys’ fees and costs, arising out of or in any way related to your breach of this agreement.
9.3. To individual customers, corporate customers and appearance attorneys
9.3.1. Liability cap. except where prohibited by applicable law, the aggregate liability ofAppearMe, its affiliates, agents and their respective officers, directors, shareholders, employees, contractors, representatives and agents to you for all claims arising from or relating to this agreement or your use of the services, including, without limitation, your interaction with any appearance attorney(s) or other customer(s), any cause of action sounding in contract, tort, or strict liability, will not exceed twenty-five dollars ($25).
9.3.2. This limitation of liability is intended to apply without regard to whether other provisions of this agreement have been breached or have proven ineffective or if a remedy fails of its essential purpose. some jurisdictions do not allow for limited liability or exclusion of certain warranties, conditions or representations so not all of the above limitations may apply to you. you acknowledge and understand that the disclaimers, exclusions and limitations of liability set forth herein form an essential basis of the agreement between the parties hereto, that the parties have relied upon such disclaimers, exclusions and limitations of liability, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this agreement would be substantially different.
10. Third Party Links & App Store
10.1. Third-Party Links & Ads. The Site may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Where the Site contains links to Third-Party Links & Ads, these links are provided for your information and convenience only. We have no control over the contents of those sites or resources. AppearMe does not review, approve, endorse or make any promises with respect to Third-Party Links & Ads. You use Third-Party Links & Ads at your own risk. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, not these Terms.
10.2. App Store. When you download our Apps, you may do so through a third party’s App Store. You acknowledge that the terms of this Agreement are between you and us and not with the owner or operator of the App Store (“App Store Owner”). As between the App Store Owner and us, we, and not the App Store Owner, are solely responsible for the Services, including the App, the content, maintenance, support services, and warranty, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store Owner in connection with the Services, including the App. The following applies to any App Store Sourced Application:
10.2.1. Your use of the App Store Sourced Application must comply with the App Store’s “Terms of Service” or equivalent terms.
10.2.2. You acknowledge that the App Store Owner has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
10.2.3. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify the App Store Owner, and the App Store Owner will refund the purchase price for the App Store Sourced Application to you (if any) and to the maximum extent permitted by applicable law, the App Store Owner will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between AppearMe and the App Store Owner, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of AppearMe.
10.2.4. You and we acknowledge that, as between AppearMe and the App Store Owner, the App Store Owner is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (1) product liability claims; (2) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.
10.2.5. You and we acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between AppearMe and the App Store Owner, AppearMe, not the App Store Owner, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
10.2.6. You and we acknowledge and agree that the App Store Owner, and the App Store Owner’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of this Agreement, the App Store Owner will have the right (and will be deemed to have accepted the right) to enforce the terms of this Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
10.2.7. You represent and warrant that (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.
10.2.8. Without limiting any other terms in this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
11.1. When we might suspend or terminate your Account or Site access. We may, subject to applicable law, in our discretion and without liability to you, with or without cause, with or without prior notice and at any time: (a) terminate this Agreement and/or your access to the Services, and (b) deactivate or cancel your Account.
11.2. What happens when this agreement terminate? Upon termination we will promptly pay you any amounts that we reasonably determine we owe you (if any) in our discretion. In the event AppearMe terminates this Agreement or your access to the Services or deactivates or cancels your Account, you will remain liable for all amounts due hereunder.
11.3. Your right to cancel. You may cancel your Account at any time by contacting us at the contact information set out in Section 2. Please note that if your Account is cancelled, we do not have any obligation to delete or return to you any of Your Materials that you have posted to the Services, including, but not limited to, any reviews or Feedback.
11.4. Our right to cancel. If we terminate this Agreement and/or your access to the Services as a result of your violation of any applicable law or regulation, we may also, at our sole discretion, inform law enforcement or regulatory authorities of the circumstances surrounding such termination, if we deem such action appropriate for preserving ethics standards and/or for the safety of others.
12. Other Important Terms
12.2. Anti-Spam. AppearMe prohibits the sending of unsolicited email or text messages (spam) or other communications that violate applicable privacy and anti-spam legislation. Spam is defined for this purpose as sending any message that encourages participation in a commercial activity or multiple messages similar in content to any person(s), entity(ies), newsgroup(s), forum(s), email list(s), or other group(s), individual(s) or list(s) unless prior authorization has been obtained from the recipient or unless a business or personal relationship has already been established with the recipient in accordance with the requirements under applicable law. AppearMe also prohibits using false headers in emails or falsifying, forging or altering the origin of any email or text message in connection with AppearMe, and/or any products and Services. AppearMe prohibits engaging in any of the foregoing activities by using the service of another provider, remailer service, or otherwise. If you or anyone you know is “spammed” by someone in relation to AppearMe’s services, please contact us promptly via the contact mechanism made available via the website so that we may take appropriate action.
12.3. Governing Law and Jurisdiction. To the extent permitted by applicable law, this Agreement will be governed by and interpreted in accordance with the laws of the State of California and we both agree to submit to the non-exclusive jurisdiction of the District Courts of California.
12.4. Any delay or failure to enforce any terms herein, does not constitute a waiver or breach of any rights held by AppearMe.
12.5. Rights and Remedies. Unless stated otherwise, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise.
12.6. Mandatory Arbitration and Dispute Resolution for United States Users. Please read this Arbitration Agreement carefully. It is part of your contract with AppearMe and affects your rights. It contains procedures for mandatory binding arbitration and a class action waiver.
12.6.1. Applicability of Arbitration Agreement. To the extent permitted by applicable law, all claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of the Services provided by AppearMe that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and AppearMe, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
12.6.2. Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to AppearMe should be sent to Director of Operations, AppearMe, NexusLab Inc. firstname.lastname@example.org. After the Notice is received, you and AppearMe may attempt to resolve the claim or dispute informally. IF any party fails to engage in good faith settlement discussions that party shall not be entitled to any recovery of attorney’s fees even upon prevailing under a cause of action with a fee shifting provision. If you and AppearMe do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
12.6.3. Arbitration Rules. Arbitration shall be initiated through JAMS, an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If JAMS is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearing. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that AppearMe made to you prior to the initiation of arbitration, AppearMe will pay you the greater of the award or fifty dollars ($50). Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
12.6.4. Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
12.6.5. Time Limits. If you or AppearMe pursues arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
12.6.6. Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and AppearMe, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and AppearMe.
12.6.7. Waiver of Jury Trial. The parties hereby waive their constitutional and statutory rights to go to court and have a trial in front of a judge or a jury, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and AppearMe in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, you and company waive all rights to a jury trial, instead electing that the dispute be resolved by a judge.
12.6.8. Waiver of Class or Consolidated Actions. To the extent permitted by applicable law, all claims and disputes within the scope of this arbitration agreement must be arbitrated or litigated on an individual basis and not on a class basis, and claims of more than one customer or user cannot be arbitrated or litigated jointly or consolidated with those of any other customer or user.
12.6.9. Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
12.6.10. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
12.6.11. Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
12.6.12. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with AppearMe.
12.6.13. Small Claims Court. Notwithstanding the foregoing, either you or AppearMe may bring an individual action in small claims court.
12.6.14. Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Los Angeles County, California, for such purpose.
12.7. If a court finds part of these Terms illegal, the rest will continue in force. Each of the Sections of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining Sections will remain in full force and effect.
12.8. We may transfer these Terms to someone else. We may transfer our rights and obligations under these Terms to another organization – for example, this could include another member of our group of companies or someone who buys our business. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under these Terms.
12.9. Nobody else has any rights under these Terms. These Terms are between you and us. No other person shall have any rights to enforce any of its terms.
PLEASE PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS AND PLEASE CHECK BACK FREQUENTLY FOR ANY CHANGES TO THIS AGREEMENT.