1. Acceptance of the Terms of Service.
Binding Agreement; Description. Supraficial.com (“Supraficial”, “we”, “us” or “our”) provides and makes available its website located at www.supraficial.com (the “Site”), along with its Supraficial mobile application (the “App,” together with the Site, the “Service”). All uses of the Service are subject to the terms of service contained in this End User License and Terms of Service (“EULA”). Please read this EULA carefully. By accessing, browsing or otherwise using the Service, you acknowledge that you have read, understood, and agree to be bound by this EULA. If you do not accept the terms of service of this EULA, then you may not access, browse or use the Service.
As further described below, this EULA requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available to you in the event of a dispute.
Changes to this EULA. You understand and agree that Supraficial may change this EULA at any time without prior notice; provided that Supraficial will endeavor to provide you with prior notice of any material changes. You may read the current, effective version of this EULA at any time by selecting the appropriate link on the Service. The revised EULA will become effective at the time of posting. Any use of the Service after such date will constitute your acceptance of such revised terms of service. If any change to this EULA is not acceptable to you, your sole remedy is to cease accessing, browsing and otherwise using the Service. The terms of this EULA will govern any updates Supraficial provides to you that replace and/or supplement any portion of the Service, unless that upgrade is accompanied by a separate license or revised EULA, in which case the terms of that license or revised EULA will govern. Notwithstanding the preceding sentences of this Section 1.b, no revisions to this EULA will apply to any dispute between you and Supraficial that arose prior to the effective date of such revision.
The service is not for persons under the age of 16 or for any users previously suspended or removed from the service by supraficial. If you are under 16 years of age, you must not use or access the service at any time or in any manner. Furthermore, by using the Service, you affirm that you are at least 16 years of age. If you are using the Service on behalf of a company, entity, or organization (collectively “Organization”), then you represent and warrant that you (i) are an authorized representative of that Organization; (ii) have the authority to bind that Organization to this EULA; and (iii) agree to be bound by this EULA on behalf of that Organization.
Description. The Service allows end users (“Clients”) to search for and cast talents (“Talents”), as well as producers, photographers, stylists, make-up artists, hair-dressers, etc (collectively, “Contractors,” together with Talents, “Talent”) for gigs. A gig booked through the Service is a “Project.” Clients, Talents and Contractors are collectively, “Users.”
. Clients may browse photos of Talents and examples of their previous jobs through the Service. Clients may also browse the profiles of Contractors and view information about their previous work experience. If a Client wants to hire Talent, then the Client may message the Talent through the Service or initiate a booking and if the Talent agrees to do the Project, pay the Talent through the Service.
Talent. The Talent may book jobs through the Service once requested by a Client. The Talent will be paid for a Project through the Service upon completion of the Project. The Talent may also submit their own profiles and pictures to the Service.
Mobile Services. The App is accessible via a mobile phone, tablet or other wireless device (collectively, “Mobile Services”). Your mobile carrier’s normal messaging, data, and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile device(s), what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you. Nevertheless, all use of the App and the related Mobile Services must be strictly in accordance with this EULA.
a. Log-in Credentials. In order to fully utilize the Service, you must download the App and register an account with the Service (an “Account”). In order to create an Account, you must provide your name, email address, social media account information and certain documentation that helps to verify your identity.
c. Accuracy of Information. In creating an Account, you agree to provide true, accurate, current, and complete information as requested in any registration forms required by Supraficial. You also agree to update the information about yourself promptly, and as necessary, to keep it current and accurate. We reserve the right to disallow, cancel, remove, or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in our sole discretion, would or might constitute a violation of this EULA, or an infringement or violation of the rights of any third party, or of any applicable laws or regulations, including, but not limited to, trademark rights, copyrights, or the rights of privacy or publicity. If messages sent to an e-mail address provided by you are returned as undeliverable, then Supraficial reserves the right to terminate your Account immediately with or without notice to you and without any liability to you or any third party.
We reserve the right to also be able to read your messages with our without your permission or foreknowledge.
4. Intellectual Property Rights
a. License. The Service is licensed, not sold, to you for use only under the terms of this EULA. Supraficial reserves all rights not expressly granted to you. Subject to your complete and ongoing compliance with the terms of service of this EULA, Supraficial hereby grants you a personal, limited, revocable, non-transferable license to access and use the Service solely for the purpose of (i) searching for Talent and booking Projects if you are a Client, or (ii) booking Projects if you are the Talent.
b. Content. Except for User Materials (as defined below), the content made available on or through the Service, including without limitation, any text, graphics, photos, software, and interactive features, may be protected by copyright or other intellectual property rights and owned by Supraficial or Supraficial’s third party licensors (the “Supraficial Content”). You may not copy, reproduce, upload, republish, transmit, post or distribute any materials from the Service in any way without prior express written permission of the copyright owner of such material or as otherwise specified in this EULA or permitted by functionalities of the Service. You may not modify any materials obtained from the Service unless you have obtained prior express written authorization from the applicable copyright owner. You must obtain permission for all other uses of materials made available on or through the Service from Supraficial or the copyright owner in advance and in writing. Supraficial solely owns all design rights, databases and compilation and other intellectual property rights in and to the Service, in each case whether registered or unregistered, and related goodwill.
c. Marks. The trademarks, service marks, and logos of Supraficial (the “Supraficial Trademarks”) used and displayed on the Service are registered and unregistered trademarks or service marks of Supraficial. Other product and service names located on the Service may be trademarks or service marks owned by third parties (the “Third-Party Trademarks,” and, collectively with the Supraficial Trademarks, the “Trademarks”). Nothing on the Service or in this EULA should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on this Service without Supraficial’s prior express written consent for each individual use. You may not use the Trademarks to disparage Supraficial or the applicable third-party, Supraficial’s or a third-party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. You may not use any Trademarks as part of a link to or from any Service without Supraficial’s prior express written consent. All goodwill generated from the use of any Supraficial Trademark will inure solely to Supraficial’s benefit.
d. Restrictions.You may not sell, transfer, assign, license, sublicense, or modify the Supraficial Content or App, and you may not reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Supraficial Content in any way for any public or commercial purpose. The use or posting of any of the Supraficial Content on any other website or in a networked computer environment for any purpose is expressly prohibited. In addition, you also may not attempt to derive the source code of, modify, or create derivative works of the App, any updates, or any part thereof (except as and only to the extent any of the foregoing restrictions are prohibited by applicable law). If you violate any part of this EULA, then your right to access and/or use the Supraficial Content and Service will automatically terminate and you must immediately destroy any copies you have made of the Supraficial Content.
5. Additional Terms of CLients
1. Submitting Projects. Clients may submit Projects and book Talent through the Service. As a Client, you represent and warrant that the information you submit about each Project (together, with all other materials submitted by you to the Service, “Client Materials”) is accurate. In addition, Supraficial has the right – but not the obligation – in its sole discretion to refuse or delete any Projects that it reasonably considers to violate this EULA or be otherwise illegal or inappropriate.
2. Booking Projects. If you wish to book Talent for a Project, you may request a booking through the Service, which the Talent may accept or reject in his or her sole discretion. If the Talent accepts a Project, Supraficial will charge you for the price you have submitted for the Project (the “Fee”). The Fee will be held in escrow by Supraficial’s payment processor until 48 hours after the Project’s completion. As long as there are no good faith disputes regarding the booking during the 48 hours immediately following completion of the Project, Supraficial will then authorize its payment processor to release the Fee. Supraficial’s payment processor will pay the Fee to the Talent, minus a service charge retained by Supraficial in the amount of 15% of the applicable Fee (“Talent Fee”). We also reserve the right in our sole discretion to charge each Client a fee in the amount of 3% of the applicable Talent Fee to help defray the payment processing fees imposed on us by our payment processor (“Client Fee,” together with the Talent Fee, the “Supraficial Fee”).
3. Cancellation. Clients may cancel Projects booked through the Service in their sole discretion. If a Client cancels a Project within 72 hours of the Project start-date, then the Client will be charged up to 50% of the applicable Fee. If the client cancels less than 24 hours in advance, no refund will be given. If a Client cancels a Project at any time prior to 48 hours before the Project start-date, then Supraficial’s payment processor will refund the Fee to the Client. If the Talent cancels a Project within 48 hours of the Project start-date, then we reserve the right in our sole discretion to take remedial action, which may include, without limitation, prohibiting such Talent from using the Service. If either a Client or the Talent cancels a Project booked through the Service at any time, we reserve the right to charge the Supraficial Fee in our discretion. We may change the cancellations policies set forth in this Section in our sole discretion.
6. Additional Terms of Talents
. Talent Materials. If you are a Talent, then you may submit photographs and demographical details about yourself to create a profile on the Service (together, with all other materials submitted by you, “Talent Materials”). As a Talent, you represent and warrant that your talent materials are accurate. You also agree that Supraficial may display your name and Talent Materials on the Service to Clients. If you submit any photographs of yourself to the Service, then you hereby grant to Supraficial the right to use, reproduce, display and distribute your photographs to market, promote and advertise the Service through any media and formats now known or hereafter developed. You may remove photographs of yourself that you post to the Service through the functionality offered by the Service.
a. Booking Projects. When you receive a request for a Project from a Client, you may accept or reject such request in your sole discretion. If you accept the request, then you will be paid through the Service upon completion of the Project as described above.
b. No Conflicts. By using the Service, you represent, warrant and covenant to Supraficial that your authorized use of the Service does not and will not violate any contract between you and a third party, including, without limitation, any talenting agency and/or “mother agency”.
7. Additional Terms for Contractors
0. Contractor Materials. If you are a Contractor, then you may submit information about yourself and your prior work experience to create a profile on the Service (together, with all other materials submitted by you, “Contractor Materials”). As a Contractor, you represent and warrant that your Contractor Materials are accurate. You also agree that Supraficial may display your name and Contractor Materials on the Service to Clients.
1. Booking Projects. When you receive a request for a Project from a Client, you may accept or reject such request in your sole discretion. If you accept the request, then you will be paid through the Service upon completion of the Project as described above.
8. User Materials. Client Materials, Talent Materials and Contractor Materials are collectively, "User Materials."
. License to User Materials By Posting User Materials to the Service, you hereby grant Supraficial (and its assignees, designees, successors, licensees, and sub-licensees), for the sole purposes of displaying your User Materials to other Users, an unrestricted, assignable, sublicensable, revocable, royalty-free, fully paid up license throughout the world and during the term of the EULA to reproduce, distribute, publicly display, transmit, communicate to the public, publicly perform on a through-to-the-audience basis, create derivative works from, and otherwise use and exploit (collectively, “Use”) all User Materials you upload to or through the Service through any media and formats now known or hereafter developed.
a. License for Name, Image, Voice, and Likeness You further grant Supraficial a royalty-free license to Use your name, image, voice, and likeness (and that of any person identifiable in any User Material you post to the Service) made available by or on your behalf through the Service in conjunction with the rights you grant in Section 7.a above.
b. Limited Waiver of Rights By posting User Materials to or through the Service you waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Materials, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any User Materials you post to the Service, during the term of the EULA. You expressly release Supraficial and all of Supraficial’s agents, partners, subsidiaries, affiliates, licensees, successors, and assigns from any and all claims, demands, liabilities, or causes of action, whether now known or unknown, for defamation, copyright infringement, violation of moral rights, and invasion of the rights to privacy, publicity, or personality or any similar matter, or based upon or relating to the Use of your User Materials as authorized in the EULA.
c. Representations and Warranties With Respect to Your User Materials. Except for materials Supraficial provided to you through the Service, you represent, warrant, and covenant that (i) you either are the sole and exclusive owner of all of your User Materials that you post to the Service, or you have all rights, licenses, consents, and releases that are necessary to grant to Supraficial the rights in your User Materials as contemplated under the EULA, and (ii) neither the User Materials you post to the Service nor your creation of, accessing, or posting of your User Materials or Supraficial’s Use of your User Materials (or any portion thereof) as permitted in the EULA will (A) infringe, misappropriate or violate the rights of any party or entity, including a third party’s patent, copyright, trademark, trade secret, moral rights, rights of publicity, rights of privacy or other intellectual property or proprietary rights, (B) constitute or result in defamation, libel, slander, or the violation of any applicable law or regulation (including, without limitation, restrictions on obscenity, child pornography, wiretap laws or other similar restrictions on nonconsensual recording, or otherwise), or (C) require Supraficial to obtain any licenses from or make any payments in any amounts to any third party throughout the world.
10. Restrictions on Use of the Service
. In using the Service, you agree not to:
i. take any action that imposes an unreasonable load on the Service’s infrastructure;
ii. use any device, software or routine to interfere or attempt to interfere with the proper working of the Service, or any activity conducted on the Service
iii. attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or making up the Service;
iv. delete or alter any material posted on the Service by Supraficial or any other person or entity;
v. frame or link to any of the materials or information available on the Service;
vi. alter, deface, mutilate, or otherwise bypass any approved software through which the Service is made available;
vii. use any trademarks, service marks, design marks, logos, photographs, or other content belonging to Supraficial or obtained from the Service;
viii. access, tamper with, or use non-public areas of the Service, Supraficial’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Supraficial’s providers;
ix. harass, abuse, harm, or advocate or incite harassment, abuse, or harm of another person or group, including Supraficial employees;
x. provide any false personal information to Supraficial;
xi. create a false identity or impersonate another person or entity in any way;
xii. create a new account with Supraficial, without Supraficial’s express written consent, if Supraficial has previously disabled an account of yours;
xiii. solicit, or attempt to solicit, personal information from other Users;
xiv. restrict, discourage, or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of that person, or collect information about users of the Service;
xv. use the Service to send emails or other communications to persons who have requested that you not sent them communications;
xvi. gain unauthorized access to the Service, to other users’ accounts, names, or personally identifiable information, or to other computers or websites connected or linked to the Service;
xvii. post, transmit or otherwise make available any virus, worm, spyware, or any other computer code, file, or program that may or is intended to disable, overburden, impair, damage, or hijack the operation of any hardware, software, or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected to the Service;
xviii. interfere with or disrupt the Service, networks, or servers connected to the Service or violate the regulations, policies or procedures of those networks or servers;
xix. violate any applicable federal, state, or local laws or regulations or the terms of this EULA; or
xx. assist or permit any persons in engaging in any of the activities described
11. External Sites. The Site and/or App may contain links to third party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or Webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. Supraficial is not responsible for the content of any linked External Sites and does not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access any External Sites, you do so at your own risk.
12. Feedback. While our own staff is continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the user community. If you choose to contribute by sending Supraficial or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to Supraficial, you agree that:
. Supraficial has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
a. Feedback is provided on a non-confidential basis, and Supraficial is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
b. You irrevocably grant Supraficial perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements
c. Respect of Third Party Rights. Supraficial respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our users to do the same. Infringing activity will not be tolerated on or through the Service.
d. Repeat Infringer Policy. Supraficial’s intellectual property policy is to (i) remove or disable access to material that Supraficial believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Service, and (ii) remove any User Materials uploaded to the Service by “repeat infringers.” Supraficial considers a “repeat infringer” to be any user that has uploaded User Materials or Feedback to or through the Service and for whom Supraficial has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Materials or Feedback. Supraficial has discretion, however, to terminate the Account of any user after receipt of a single notification of claimed infringement or upon Supraficial’s own determination.
e. Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by Supraficial with the user alleged to have infringed a right you own or control, and you hereby consent to Supraficial making such disclosure. Your communication must include substantially the following:
i. A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
ii. Identification of works or materials being infringed, or, if multiple works are covered by a single notification, a representative list of such works;
iii. Identification of the specific 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 Supraficial to locate the material;
iv. Information reasonably sufficient to permit Supraficial to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
v. A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
vi. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
f. Designated Agent Contact Information Supraficial’s designated agent for receipt of Notifications of Claimed Infringement (the “Designated Agent”) can be contacted at:
Via U.S Mail:
g. Counter Notification If you receive a notification from Supraficial that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Supraficial with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Supraficial’s Designated Agent through one of the methods identified in Section 12.d and include substantially the following information:
i. A physical or electronic signature of the subscriber;
ii. 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;
iii. A statement under penalty of perjury that the subscriber has 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;
iv. The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which Supraficial may be found, and that the subscriber will accept service of process from the person who provided notification under Section 12.c above or an agent of such person; and
v. A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
h. Reposting of Content Subject to a Counter Notification If you submit a Counter Notification to Supraficial in response to a Notification of Claimed Infringement, Supraficial will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Supraficial will replace the removed User Content or Feedback or cease disabling access to it in 10 business days, and Supraficial will replace the removed User Materials or Feedback and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Supraficial’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on Supraficial’s system or network.
i. False Notifications of Claimed Infringement or Counter Notifications The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Supraficial] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. 17 U.S.C. § 512(f).
Supraficial reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
13. Disputer Resolution
. Mandatory Arbitration Please read this carefully. It affects your rights. YOU AND SUPRAFICIAL AND ITS RESPECTIVE CORPORATE PARENTS, SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, PERMITTED ASSIGNS, AND ANY OTHER PARTIES ON WHOSE BEHALF YOU ARE ACCESSING THE SERVICE AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THIS EULA OR THE SERVICE. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.
i. Commencing Arbitration A party who intends to seek arbitration must first send to the other, by an international courier with a tracking mechanism, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to Supraficial, to you via any other method available to Supraficial, including via e-mail. The Notice to Supraficial should be addressed to Supraficial Inc., 127 west 26th street # 502, NYC 10001, Attn: Chief Executive Officer (the “Arbitration Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (the “Demand”). If you and Supraficial do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or Supraficial may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION WILL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE “Rules”), AS MODIFIED BY THIS EULA. The Rules and AAA forms are available online at http://www.adr.org. If you are required to pay a filing fee to commence an arbitration against Supraficial, then Supraficial will promptly reimburse you for your confirmed payment of the filing fee upon Supraficial’s receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000 or was filed in bad faith, in which case you are solely responsible for the payment of the filing fee.
ii. Arbitration Proceeding The arbitration will be in English. A single independent and impartial arbitrator with his or her primary place of business in New York, New York will be appointed pursuant to the Rules, as modified herein. You and Supraficial agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (i) arbitration will only be conducted if the damages sought exceed $75,000; (ii) the arbitration will be conducted online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (iii) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iv) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
iii. No Class Actions YOU AND SUPRAFICIAL AGREE THAT YOU AND SUPRAFICIAL MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION WILL BE NULL AND VOID.
iv. Decision of the Arbitrator Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential, and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement setting forth the reasons for the disposition of any claim. The arbitrator will apply New York state law. You acknowledge that these terms and your use of the Service evidences a transaction involving interstate commerce. The United States Federal Arbitration Act will govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in this EULA.
a. Equitable Relief The foregoing provisions of this Dispute Resolution section do not apply to any claim in which either party seeks equitable relief to protect such party’s copyrights, trademarks, or patents. You acknowledge that, in the event of a breach of this EULA by Supraficial or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against Supraficial, and your only remedy will be for monetary damages, subject to the limitations of liability set forth in this EULA.
b. Claims You and Supraficial agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to this EULA or the Service, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
c. Improperly Filed Claims All claims you bring against Supraficial must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section will be considered improperly filed. Should you file a claim contrary to this Dispute Resolution section, Supraficial may recover attorneys’ fees and costs up to $5,000, provided that Supraficial has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
d. Modifications In the event that Supraficial makes any future change to the Mandatory Arbitration provision (other than a change to Supraficial’s Arbitration Notice Address), you may reject any such change by sending us written notice within thirty (30) days of the change to Supraficial’s Arbitration Notice Address, in which case your Account and your license to use the Service will terminate immediately, and this Dispute Resolution provision, as in effect immediately prior to the amendments you reject, will survive this EULA’s termination.
e. Enforceability If only Section 13.a.iii or the entirety of this Section 13 is found to be unenforceable, then the entirety of this Section 13 will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 19 will govern any action arising out of or related to this EULA.
14. Limitation of Liability and Disclaimer of Warranties.
. SUPRAFICIAL, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE “SUPRAFICIAL PARTIES”) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT AVAILABLE ON THE SERVICE, INCLUDING BUT NOT LIMITED, TO THE ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS OR RELIABILITY THEREOF. THE SUPRAFICIAL PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF ANY CONTENT OR ANY OTHER INFORMATION CONVEYED TO ANY SUPRAFICIAL USER, OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA, OR INFORMATION STREAM FROM WHATEVER CAUSE. AS A USER, YOU AGREE THAT YOU USE THE SERVICE AND ANY CONTENT AT YOUR OWN RISK.
a. THE SUPRAFICIAL PARTIES DO NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE, OR THAT THE SERVICE AND ANY CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO SUPRAFICIAL PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
b. THE SERVICE AND ALL CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. THE SUPRAFICIAL PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
c. IN NO EVENT WILL ANY SUPRAFICIAL PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SERVICE AND ANY CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH SUPRAFICIAL PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUPRAFICIAL’S LIABILITY, AND THE LIABILITY OF ANY OTHER SUPRAFICIAL PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO $100.
d. ome states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH STATES, THE LIABILITY OF THE SUPRAFICIAL PARTIES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
15. Third Party Disputes. SUPRAFICIAL IS NOT AFFILIATED WITH ANY MOBILE CARRIER OR OTHER THIRD PARTY SERVICE PROVIDER, AND ANY DISPUTE YOU HAVE WITH ANY SUCH PARTIES OR ANY OTHER THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE SERVICE (INCLUDING ANY TALENT OR CLIENT) OR ANY TALENTING AGENCY OR “MOTHER AGENCY,” IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE THE SUPRAFICIAL PARTIES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
16. Indemnification. You agree to defend, indemnify, and hold harmless the Supraficial Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your actual or alleged breach of this EULA or your access to, use or misuse of the Supraficial Content or Service. Supraficial will provide notice to you of any such claim, suit, or proceeding. Supraficial reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Supraficial’s defense of such matter.
17. Termination of the EULA
. Sections 1(a), 1(b), 1(d), 2(a), 2(d), 3, 4, 6.c, 7.d, and 9 – 19 survive the termination of this EULA.
19. Miscellaneous. This EULA is governed by the internal substantive laws of the State of New York without respect to its conflict of laws provisions. You expressly agree to submit to the exclusive personal jurisdiction of the state and federal courts sitting in New York, New York. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Supraficial as a result of this EULA or use of the Service. You further acknowledge that by submitting User Materials, no confidential, fiduciary, contractually implied or other relationship is created between you and Supraficial other than pursuant to this EULA. If any provision of this EULA is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this EULA, which will remain in full force and effect. Failure of Supraficial to act on or enforce any provision of this EULA will not be construed as a waiver of that provision or any other provision in this EULA. No waiver will be effective against Supraficial unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Except as expressly agreed by Supraficial and you, this EULA constitutes the entire agreement between you and Supraficial with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein. The section headings are provided merely for convenience and will not be given any legal import. This EULA will inure to the benefit of our successors and assigns. You may not assign this EULA or any of the rights or licenses granted hereunder, directly or indirectly, including by sale, merger, change of control, operation of law or otherwise, without Supraficial’s prior express written consent. This means that in the event you dispose of any device on which you have installed the App, such as by sale or gift, you are responsible for deleting the App from your mobile device prior to such disposition. Supraficial may assign this EULA, including all its rights hereunder, without restriction.
Have a nice day.