Welcome to JamHive, the Online Music Collaboration Service!
THESE TERMS OF SERVICE (THE "TERMS") ARE A LEGAL CONTRACT BETWEEN YOU AND JAMHIVE, INC. (“JAMHIVE”, “WE” OR “US”). THE TERMS EXPLAIN HOW YOU ARE PERMITTED TO USE THE WEBSITE LOCATED AT THE URL: WWW.JAMHIVE.COM AS WELL AS ALL ASSOCIATED SITES LINKED TO WWW.JAMHIVE.COM BY JAMHIVE, ITS SUBSIDIARIES AND AFFILIATED COMPANIES (COLLECTIVELY, THE "SITE"). BY USING THIS SITE, YOU ARE AGREEING TO ALL THE TERMS; IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THIS SITE, ANY SERVICES AVAILABLE THROUGH THIS SITE (“SERVICES”) OR ANY INFORMATION CONTAINED ON THIS SITE.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH JAMHIVE. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
JAMHIVE may make changes to the content and Services offered on the Site at any time. JAMHIVE can change, update, or add or remove provisions of these Terms, at any time by posting the updated Terms on this Site and by emailing users that have an active account on the Site. By using this Site after JAMHIVE has updated the Terms, you are agreeing to all the updated Terms; if you do not agree with any of the updated Terms, you must stop using the Site and the Services.
By using this Site, you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old (a “Minor”), that you are using the Site with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to use the Site and agree to its Terms. If you are a parent or legal guardian of a Minor, you hereby agree to bind the Minor to these Terms and to fully indemnify and hold harmless JAMHIVE if the Minor breaches any of these Terms. If you are not at least 13 years old, you may not use the Site at any time or in any manner or submit any information to JAMHIVE or the Site.
The Site is designed for the creation, collaboration and sharing of music projects. Musicians can record, edit, and share their music with other users. For example, registered users can log into a project space provided through the Site, where they can record/upload an instrument track. They can then invite other registered user into the space to record/upload their own accompaniments. Song projects can be shared publicly for other users to copy/edit/listen, or kept private within a select circle of collaborators. The rights of users to access and use the musical content created by other users is described in the Section entitled “Collaborative Projects.” The rights of JAMHIVE to use that content is set forth in the Section entitled “Submissions.”
JAMHIVE provides content through the Site and through the Services that is copyrighted and/or trademarked work of JAMHIVE or JAMHIVE’s third-party licensors and suppliers of the Site (collectively, the “Materials”). Materials may include, but are not limited to, music, sound recordings, text, photographs, logos, graphics, video, images, software and other content.
Subject to the terms and conditions of these Terms, and your compliance with these Terms, and subject to the specific provisions for musical content set forth in the Section entitled “Collaborative Projects,” JAMHIVE hereby grants you a limited, personal, non-exclusive and non-transferable license to use and to display the Materials and to use this Site solely for your personal use. Except for the foregoing license, you have no other rights in the Site or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Site or Materials in any manner.
If you breach any of these Terms, the above license will terminate automatically and you must immediately destroy any downloaded or printed Materials.
Using the Site and the Services on the Site.
The Site allows users to create and collaborate on music projects, including creating, transmitting, modifying and combining musical compositions and sound recordings. You can view the Site and browse and view posted Materials and listen to publicly posted song projects without have to register on the Site or with JAMHIVE.
However, in order to access certain password-protected areas of the Site and use certain Services and Materials offered on and through the Site, including the ability to create, edit, record or share song projects on the Site, you must register with JAMHIVE for an account and receive a password.
Password Restricted Areas of this Site.
If you desire to register for an account with JAMHIVE, you must submit the following information through the account registration page on the Site: email, username, and password. You may also be given the ability to provide additional optional information, such as biographical information, instruments played, profile picture, and location (e.g. San Francisco Bay Area), which is not required to register for an account but may be helpful to JAMHIVE in providing you with more a more customized experience when using the Site or its Services. Once you have submitted your account registration information, JAMHIVE administrator shall have the right to approve or reject the requested registration, in JAMHIVE administrator’s sole discretion. If your account is approved by JAMHIVE administrator, you will be sent an e-mail that contains a password that will allow you to log-on to the Site using that password (the “JAMHIVE Password”) for the first time you log into your account on the Site to complete the account registration process.
JAMHIVE may also provide you with the ability to register for an account on the Site using your existing account and log-in credentials through the following Third-Party Sites (as defined below), which may change from time to time: Facebook and Google (each, a “Third-Party Site Password”).
You are responsible for maintaining the confidentiality of your JAMHIVE Password and any Third-Party Site Password (collectively, "Passwords”), and you are responsible for all activities that occur using your Passwords. You agree not to share your Passwords, let others access or use your Passwords or do anything else that might jeopardize the security of your Passwords. You agree to notify JAMHIVE if any of your Passwords on this Site is lost, stolen, if you are aware of any unauthorized use of your Passwords on this Site or if you know of any other breach of security in relation to this Site.
All the information that you provide when registering for an account and otherwise through the Site must be accurate, complete and up to date. You may change, correct or remove any information from your account by logging into your account directly and making the desired changes.
By registering for an account with JAMHIVE, you will have access to certain password-restricted areas of the Site and to subscribe to the use of certain Services and Materials offered on and through the Site (the “Subscription Plans”). The Subscription Plans will vary in the level of Services that will be provided based on whether a fee is paid or not and the amount of fee paid. The details for the various Subscription Plans will be set forth on the Site. Some of the Subscription Plans will be provided free of charge (“Free Plans”) and other Subscription Plans will require payment of a monthly subscription fee (“Paid Services”). Each person that signs up for a Subscription Plan shall be referred to as a “Subscriber.”
Each Subscription Plan and the rights and privileges provided to a Subscriber are personal and non-transferable. All sales and payments of Subscription Plan fees will be in US Dollars and at the rate specified on the Site for the particular Subscription Plan.
The fee that we will charge you for your Subscription Plan will be the price posted on the Site on the date that you register as a Subscriber. JAMHIVE reserves the right to change prices for Subscription Plans and to change the Services offered through Subscriptions Plans at any time, and does not provide price protection or refunds in the event of promotions or price decreases. Your only recourse if you do not agree with any change in prices or Subscription Plans is to terminate your account.
ALL SUBSCRIPTION PLANS FOR PAID SERVICES REQUIRE PAYMENT BY A VALID CREDIT CARD OR DEBIT CARD. We will charge your credit or debit card for your first Subscription Plan fee on the date that we process your order for your Subscription Plan. Once your credit or debit card is charged the first Subscription Plan fee, you will receive a confirmation e-mail notifying you of your ability to access those Subscription Plan-only portions of, and Materials on, the Site.
SUBSCRIPTION PLANS FOR FREE SERVICES DO NOT REQUIRE A CREDIT CARD OR DEBIT CARD NUMBER. An upgrade from a Free Plan to Paid Services will require the provision of a valid credit card or debit card. All Subscription Plans for Paid Services are billed in advance on a monthly basis and are non-refundable. There will be no refunds or credits for partial months of Service, upgrade/downgrade refunds, or refunds for months unused with an open account. In order to treat everyone equally, no exceptions will be made.
All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties. For any upgrade or downgrade in plan level, your credit card or debit card that you provided will automatically be charged the new rate on your next billing cycle. Downgrading your Subscription Plan may cause the loss of content, features, or capacity of your account.
IMPORTANT NOTICE: JAMHIVE WILL AUTOMATICALLY RENEW YOUR SUBSCRIPTION PLAN ON A MONTHLY BASIS. AS AUTHORIZED BY YOU DURING THE SUBSCRIPTION PLAN SIGN-UP PROCESS, JAMHIVE WILL CHARGE YOUR CREDIT OR DEBIT CARD WITH THE APPLICABLE MONTHLY SUBSCRIPTION PLAN FEE AND ANY SALES OR SIMILAR TAXES THAT MAY BE IMPOSED ON YOUR SUBCRIPTION PLAN FEE PAYMENT (UNLESS YOU CANCEL PRIOR TO THE START OF THE MONTH). EACH SUBSCRIPTION PLAN RENEWAL PERIOD IS FOR ONE MONTH. YOU MAY CANCEL YOUR SUBSCRIPTION PLAN AT ANY TIME BY CONTACTING JAMHIVE UNDER USER ACCOUNT SETTINGS, WHERE YOU CAN UPGRADE/DOWNGRADE/CANCEL YOUR SUBSCRIPTION. JAMHIVE REQUIRES A REASONABLE AMOUNT OF TIME TO PROCESS YOUR SUBSCRIPTION PLAN CANCELLATION REQUEST. IF YOU CANCEL YOUR SUBSCRIPTION PLAN, YOU WILL ENJOY YOUR SUBSCRIPTION PLAN BENEFITS UNTIL THE EXPIRATION OF THE THEN-CURRENT SUBSCRIPTION PLAN TERM FOR WHICH YOU HAVE PAID, AND YOUR SUBSCRIPTION PLAN BENEFITS WILL EXPIRE AT THE END OF THE THEN-CURRENT SUBSCRIPTION PLAN TERM.
You will be liable for paying any and all applicable sales and use taxes for the purchase of your Subscription Plan based on the mailing address that you provide when you register as a Subscriber, and you authorize JAMHIVE to charge your credit or debit card for any such applicable taxes.
If applicable, you agree to pay all fees or charges to your account based on JAMHIVE’s fees, charges, and billing terms in effect as shown on the JAMHIVE payment page. If you do not pay on time or if JAMHIVE cannot charge your credit card, debit card, PayPal or other approved payment method for any reason, JAMHIVE reserves the right to either suspend or terminate your access to the Site and account and terminate these Terms. You are expressly agreeing that JAMHIVE is permitted to bill you for the applicable fees, any applicable tax and any other charges you may incur in connection with your use of this Site and the fees will be billed to your credit card, debit, PayPal or other payment method designated on your initial registration with this Site, and thereafter at regular intervals for the remainder of the term of these Terms. If you cancel your account at any time, you will not receive any refund. If you have a balance due on any account, you agree that JAMHIVE may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
By using the Site and/or the Services provided on or through the Site, you consent to receiving electronic communications from JAMHIVE. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Site and/or Services provided on or through the Site. These electronic communications are part of your relationship with JAMHIVE. 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.
You are responsible for the music, information, opinions, messages, comments, photos, videos, graphics, sounds and other content or material (including without limitation “Music Content” defined in the Section entitled Collaborative Projects) and that you submit, upload, post or otherwise make available on or through the Site (each a “Submission”) and through the Services available in connection with this Site. You may not upload, post or otherwise make available on this Site 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 any damage resulting from any infringement of copyrights, trademarks, proprietary rights, violation of contract, privacy or publicity rights or any other harm resulting from any Submission that you make. You have full responsibility for each Submission you make, including its legality, reliability and appropriateness.
To the maximum extent permitted by law, You agree to pay for all royalties, fees, damages and any other monies owing any person by reason of any Submissions posted by you to or through this Site, including without limitation, any royalties, fees, damages or monies owed to any Performing Rights Organization or Society (“PRO”). You represent and warrant that your Submission is not subject to performance rights royalties or other charges by any PRO or other third party.
When you provide Submissions you agree that those Submissions shall not be in violation of the “Unauthorized Activities” paragraph below. Those prohibitions do not require JAMHIVE to monitor, police or remove any Submissions or other information submitted by you or any other user.
When using this Site and/or the services, you agree not to:
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.
Discuss or incite illegal activity.
Use explicit/obscene language or solicit/post sexually explicit images (actual or simulated).
Post anything that exploits children or minors or that depicts cruelty to animals.
Post 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.
Use any robot, spider, scraper or other automated means to access the Site.
Take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
Alter the opinions or comments posted by others on this Site.
Post anything contrary to our public image, goodwill or reputation.
This list of prohibitions provides examples and is not complete or exclusive. JAMHIVE reserves the right to (a) terminate access to your account, your ability to post to this Site (or use the Services) and (b) refuse, delete or remove any Submissions; with or without cause and with or without notice, for any reason or no reason, or for any action that JAMHIVE determines is inappropriate or disruptive to this Site or to any other user of this Site and/or Services. JAMHIVE 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 JAMHIVE’s discretion, JAMHIVE will cooperate with law enforcement agencies in any investigation of alleged illegal activity on this Site or on the Internet.
Unauthorized use of any Materials or Third-Party Content contained on this Site may violate certain laws and regulations.
You agree to indemnify and hold JAMHIVE and its officers, directors, employees, 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) JAMHIVE or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third-party that your use of this Site or the use of this Site by any person using your user name and/or password (including without limitation, your participation in the posting areas or, your Submissions) violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third-party.
The Site allows users to create and collaborate on music projects. The term “Music Content” as used herein means the musical compositions, sound recordings, arrangements, playing of instrumentals, singing, digital sound and video files, video recordings and other elements of a music project that are created, developed, posted or otherwise made available on or through the Site. Users will have several options under which they can license the Music Content that they own or have created to other third parties:
Community and Publicly Posted Projects: If you participate in an open community-based project, or you post your Music Content for collaboration by others in the designated public portion of the Site (collectively, “Community Projects”), you agree that your Music Content is licensed to third parties under the Creative Commons License Attribution-ShareAlike 3.0 Unported, which allows any person to copy, distribute and transmit the Music Content, adapt the Music Content, and to make commercial use of the Music Content without any monetary obligation to you. To view that license, please visit http://creativecommons.org/licenses/by-sa/3.0/deed.en_US.
Private and Collaborative Projects: If the music project is not a Community Project, such as a private collaborative project in which you invite certain users to participate and contribute to the Music Content (“Collaborative Private Project(s)”), then each such user that participates in that Collaborative Private Project (each a “Participant”) grants to the other Participants the non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license to use, reproduce, adapt, prepare derivative works, publish, distribute, display and perform the Music Content contributed by the Participant (“Contribution”), or any portion thereof, in any form, medium or distribution method now known or hereafter existing, known or developed, for their personal use and for purposes of the Collaborative Private Project only. However, no Participant can publicly distribute, perform or use another Participant’s Contribution for commercial purposes without the express written consent of the Participant who made the Contribution. Nothing herein, however, shall restrict or limit a Participant’s right to use his or her own Contribution separate and apart from other Participant’s contributions.
Please note that his Section only concerns the rights and obligations between and among users of the Site, and does not in any way limit the rights granted to JAMHIVE to Music Content, which rights are set forth in the Section entitled “Submissions.”
JamHive is a trademark of JAMHIVE in the United States. Other trademarks, names and logos on this Site are the property of their respective owners.
Unless otherwise specified in these Terms, all information and screens appearing on this Site, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of JAMHIVE, Copyright © 2013 JamHive. 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.
Intellectual Property Infringement.
JAMHIVE respects the intellectual property rights of others, and we ask you to do the same. JAMHIVE may, in appropriate circumstances and at our discretion, terminate service and/or access to this Site for users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on our Site, please provide JAMHIVE’s designated 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 and/or trademarked work claimed to have been infringed, or, if multiple 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 at the Site, and information reasonably sufficient to permit JAMHIVE to locate the material.
Information reasonably sufficient to permit JAMHIVE to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law.
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.
JAMHIVE’s agent for notice of claims of copyright or trademark infringement on this Site can be reached as follows:
Copyright Agent, JAMHIVE, INC., 604 2nd Street, Davis, CA 95618.
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.
Submitting a DMCA Counter-Notification
We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a valid DMCA take-down notice that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to JAMHIVE designated agent that includes all of the following information:
1. Your physical or electronic signature;
2. 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;
3. A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
4. Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which JAMHIVE may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
Termination of Repeat Infringers
JAMHIVE reserves the right, in its sole discretion, to terminate the account or access of any user of our web site and/or service who is the subject or repeated DMCA or other infringement notifications.
Disclaimer of Warranties.
Your use of this Site and/or the Services is at your own risk. The Materials have not been verified or authenticated in whole or in part by JAMHIVE, and they may include inaccuracies or typographical or other errors. JAMHIVE does not warrant the accuracy of timeliness of the Materials contained on this Site. JAMHIVE has no liability for any errors or omissions in the Materials, whether provided by JAMHIVE, our licensors or suppliers or other users.
JAMHIVE, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THIS SITE, THE SERVICES, OR ANY MATERIALS RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE, INCLUDING WITHOUT LIMITATION THE MATERIALS. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS SITE, THE SERVICES, AND MATERIALS AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE 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. JAMHIVE DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.
Limitation of Liability.
JAMHIVE SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THIS SITE. IN NO EVENT SHALL JAMHIVE 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 JAMHIVE KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE.
Local Laws; Export Control.
JAMHIVE controls and operates this Site from its headquarters in the United States of America and the Materials may not be appropriate or available for use in other locations. If you use this Site outside the United States of America, you are responsible for following applicable local laws.
If you send or transmit any communications, comments, questions, suggestions, or related materials to JAMHIVE, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Site, any Services offered through the Site or Materials, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and JAMHIVE is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that JAMHIVE is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
Dispute Resolution and Arbitration; Class Action Waiver.
Please read this carefully. It affects your rights.
Most customer concerns can be resolved quickly and to a customer’s satisfaction by contacting us at JAMHIVE, INC., 604 2nd Street, Davis, CA 9561 Attention: Legal Department. This Provision facilitates the prompt and efficient resolution of any disputes that may arise between you and JAMHIVE. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.
Please read this Provision carefully. It provides that all Disputes between you and JAMHIVE shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees).
For the purpose of this Provision, “JAMHIVE” means JAMHIVE and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and JAMHIVE regarding any aspect of your relationship with JAMHIVE, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as JAMHIVE’s licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give JAMHIVE an opportunity to resolve the Dispute. You must commence this process by mailing written notification to JAMHIVE, INC., 604 2nd Street, Davis, CA 95618 Attention: Legal Department. That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If JAMHIVE does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or JAMHIVE may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Provision by mailing written notification to JAMHIVE, INC., 604 2nd Street, Davis, CA 95618 Attention: Legal Department. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with JAMHIVE through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with JAMHIVE. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or JAMHIVE may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because the Site and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or JAMHIVE may initiate arbitration in either the City of Sacramento, California, USA or the federal judicial district that includes your billing address. In the event that you select the federal judicial district that includes your billing address, JAMHIVE may transfer the arbitration to the City of Sacramento, California, USA in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.
Payment of Arbitration Fees and Costs – JAMHIVE will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with JAMHIVE as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and JAMHIVE specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Site can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
You understand and agree that by entering into this Agreement you and JAMHIVE are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and JAMHIVE might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.
This Provision shall survive the termination of your service with JAMHIVE or its affiliates. Notwithstanding any provision in this Agreement to the contrary, we agree that if JAMHIVE makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require JAMHIVE to adhere to the language in this Provision if a dispute between us arises.
JAMHIVE prefers to advise you if we feel you are not complying with these Terms and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by JAMHIVE, may result in immediate termination of your access to this Site without prior notice to you. The Federal Arbitration Act, California state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement. Except for Disputes subject to arbitration as described above, any disputes relating to these Terms or this Site will be heard in the courts located in . If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. JAMHIVE’s failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and JAMHIVE and supersede all prior or contemporaneous negotiations, discussions or agreements between you and JAMHIVE about this Site. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
If you have any questions about these Terms or otherwise need to contact JAMHIVE for any reason, you can reach us at JamHive, 604 2nd Street, Davis, CA 95618.