Last Updated: September 1, 2018
Welcome, and thank you for your interest in Unmute, Inc. (“Hmbgr,” “we,” or “us”) and our website at www.hmbgr.com, along with our related websites, networks, mobile applications (the “App”), and other services provided by us (collectively, together with the App, our “Service”). This Hmbgr Terms of Service and End User License Agreement and any additional policies referenced in this document (the “Policies”) (collectively, the “Terms”) are a legally binding contract between you and Hmbgr regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY. BY USING THE SERVICE IN ANY WAY, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE TERMS. If you are not eligible, or do not agree to the Terms, then you do not have our permission to use the Service.
You acknowledge and agree that, as provided in greater detail in the Terms:
• the App is licensed, not sold to you, and that you may use the Service only as set forth in the Terms;
• when you use the Service to participate in private video chats with friends or otherwise in live public video chats
• the use of the Service may be subject to separate third party terms of service and fees, including without limitation the terms of service and data, SMS, MMS, and other fees of your mobile network operator (the “Carrier”), which are your sole responsibility;
• the Service is provided “as is” without warranties of any kind and Hmbgr’s liability to you is limited;
• disputes arising under the Terms will be resolved by binding arbitration as set forth in the Terms, and by accepting the Terms, as provided in greater detail in Section 28 you and Hmbgr are each waiving the right to a trial by jury or to participate in a class action;
• the App requires access to the following services on your mobile device: UDID, MAC address, or other applicable device identifier, phone state and identity, internet, SMS/MMS messaging, and location; and
• if you are using the App on an iOS-based device, you agree to and acknowledge the “Notice Regarding Apple,” below.
1. Hmbgr Service Overview. The Service allows ("Users") to host video chats (each, a “Chat”) with frends and in addition praticipate in ("Live") public video chats. During live chats the platform pairs users together to communicate via audio stream for a limited time. Within the limited time, if both connected users choose to reveal themselves then at that point the users can continue to communicate via video chat and add one another as friends on the platform. During chats users can screenshot the video chat and post the image to other social platforms e.g (Instagram, Twitter, Facebook).
2. Eligibility. You must be at least 17 years of age to use the Service. By agreeing to the Terms, you represent and warrant to us that: (a) you are at least 13 years of age; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to the Terms and you agree to be bound by the Terms on behalf of that organization.
4. Video Chats.
4.1 Private Video Chats. When you host a video chat on the Service, you call or answer a call from a friend. You acknowledge and agree that each friend has given you their express permission to be contacted. You hereby authorize us to send push notifications and/or text messages to each friend on your behalf.
4.2 Public Video Chats. Our Service includes public calls for a limited time per day. During live sessions the platform pairs individuals ("Users") together to communicate via audio stream for a limited time. Within the limited time, if both connected users choose to reveal themselves then at that point the users can continue to communicate via video chat and add one another as friends on the platform. WE DO NOT TOLERATE INNAPROPRIATE BEHAVIOR ON PUBLIC CALLS. IF A USER IS BEHAVING IN A WAY THAT IS INAPPROPRIATE, IMMEDIATELY TAP THE POLICE ICON ON THE TOP LEFT OF THE SCREEN AND REPORT THE USER. OUR POLICY IS TO BLOCK A REPORTED USER FROM MATCHING WITH THE USER THAT REPORTED AND, IN ADDITION, REMOVE A USER FROM USING THE SERVICE, (WITHIN TWENTY FOUR HOURS), THAT HAS BEEN REPORTED BY THREE DIFFERENT USERS.
5. Text Messaging. You may use and interact with some of our Apps through text messaging. By using the Service, you agree that the Company may communicate with you and your contacts via informational or transactional text messages, which may be subject to the standard text messaging and/or data charges assessed by your wireless carrier. You have an obligation to notify us if you change your cell phone number. You may opt out of receiving text messages from any mobile messaging program by replying "STOP" to the last message received. Opting out of receiving text messages may impact your ability to use the Service.
You may have the option to invite friends, family, and other third parties to use the Service. By taking advantage of this option, you acknowledge that the friend, family member, or third party to whom you send an invitation consents to receive the text message invitation, and to any text messaging and/or data charges that may apply.
Carriers supported: ACS, AT&T, Bluegrass Cellular, Dobson / Cellular One, Cellular One (IL), Cellcom, Cellular South, Centennial Wireless, Cincinnati Bell, Cox Communications, East Kentucky Network, ECIT, GCI, Immix Wireless, MetroPCS, Midwest Wireless, Nex-Tech Wireless, Nextel, nTelos, Revol Wireless, Rural Cellular, Sprint, T-Mobile®, U.S. Cellular, Thumb Cellular, United Wireless, Verizon Wireless, Virgin, and West Central Cellular.
6. Limited License. Subject to your complete and ongoing compliance with all the terms and conditions set forth in the Terms (including without limitation compliance with all license restrictions), Hmbgr grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use one copy of the App downloaded directly from Hmbgr or from a legitimate marketplace (such as Apple’s iTunes store or the Google Play store), solely in object code format, for your personal use for lawful purposes, on a single compatible mobile device that you own or control, and for the purpose of accessing and using the Service in accordance with the Terms. You may not reproduce, distribute, publicly display, or publicly perform the App or any part of the Service. Except if, and solely to the extent that, that restriction is impermissible under applicable law or applicable third party license, you may not (a) decompile, reverse engineer, or otherwise access or attempt to access the source code for the App, or make or attempt to make any modification to the App; or
(b) interfere with or circumvent any feature of the App, including without limitation any security, or access control mechanism. You may not use the App or the Service for any purpose other than a purpose for which the App and the Service are expressly designed. The term “App,” as used in the Terms, includes any update or modification to the App made available to you by Hmbgr (unless provided with separate terms). If you are prohibited under applicable law from using the App or the Service, you may not use them.
7. Payment. Currently, the Service is provided free of charge. In the future, access to the Service, or to certain features of the Service, may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. dollars and are non-refundable. If Hmbgr changes the fees for the Service, including by adding additional fees or charges, Hmbgr will provide you advance notice of those changes. If you do not accept the changes, Hmbgr may discontinue providing the Service to you. Hmbgr will charge the payment method you specify at the time of purchase. You authorize Hmbgr to charge all sums as described in the Terms, for the Service you select, to that payment method. If you pay any fees with a credit card, Hmbgr may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
8. Use of the App and the Service – Third Party Terms and Fees. You are solely responsible for your use of the Service on your mobile device, including without limitation compliance with these and any applicable third party terms, and payment of any applicable third party fees. Without limiting the foregoing, you are solely responsible for the payment of all applicable fees associated with any Carrier service plan you use in connection with your use of the Service (such as voice, data, SMS, MMS, roaming, other applicable fees charged by the Carrier). Accordingly, you should use care in selecting a service plan offered by your Carrier. If your device is lost or stolen, you must notify Hmbgr immediately to suspend services.
9. User Content
9.1 User Content Generally. Certain features of the Service may permit users to upload content to the Service, including messages, reviews, photos, video, audio, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on the Service. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Service.
9.2 Limited License Grant to Hmbgr. By posting or publishing User Content, you grant Hmbgr a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
9.3 Limited License Grant to Other Users. By posting or sharing User Content with other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by the Terms and the functionality of the Service.
9.4 User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:
a. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Hmbgr and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by Hmbgr, the Service, and the Terms; and
b. your User Content, and the use of your User Content as contemplated by the Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Hmbgr to violate any law or regulation.
9.5 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Hmbgr may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates the Terms or is otherwise objectionable.
10. Third Party Materials. You understand that by using the Service, you may encounter data, information, applications, or materials from third parties, including other users of the Service (“Third Party Materials”) and other content, including content from Hmbgr (collectively (including Third Party Materials), “Content”), that may be deemed offensive, indecent, or objectionable, which Content may or may not be identified as having explicit language or other material. Nevertheless, you agree to use the Service, and rely upon any Content accessible through the Service, at your sole risk and that Hmbgr will not have any liability to you for Content that may be found to be offensive, indecent, or that is inaccurate, incomplete, untimely, invalid, illegal, indecent, of poor quality or otherwise objectionable. We expressly disclaim any and all liability in connection with Content. If notified by a user or content owner that Content allegedly does not conform to the Terms, we may investigate the allegation and determine in our sole discretion whether to remove the Content, which we reserve the right to do at any time and without notice. For clarity, Hmbgr does not permit copyright-infringing activities on the Service. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Hmbgr with respect to User Content.
11. Digital Millennium Copyright Act
11.1 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
ATTN: Justin Spraggins (Copyright Notification)
5482 Wilshire Blvd. #120
Los Angeles, CA 90036
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
b. a description of the copyright-protected work or other intellectual property right that you claim has been infringed;
c. a description of the material that you claim is infringing and where it is located on the Service;
d. your address, telephone number, and email address;
e. a statement by you that you have a good faith belief that the use of those materials on the Service is not authorized by the copyright owner, its agent, or the law; and
f. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
11.2 Repeat Infringers. Hmbgr will promptly terminate without notice the accounts of users that are determined by Hmbgr to be “Repeat Infringers.” A Repeat Infringer is a user who has been notified of infringing activity or has had User Content removed from the Service at least twice.
12. Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
a. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
b. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
c. unless expressly permitted, by Hmbgr, post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
d. interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any Content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
e. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) attempting to collect personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of that network, equipment, or server;
f. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
g. bypass any security or other features of the Service designed to control the manner in which the Service is used, harvest or mine Content from the Service, or otherwise access or use the Service in a manner inconsistent with individual human usage;
h. use any robot, spambot, spider, crawler, scraper or other automated means or interface not provided by us to access the Service or to extract data;
i. decipher, reverse engineer, decompile or disassemble the Service or the App, or the software used to provide the Service or the App, in whole or in part, or authorize, direct, or cause a third party to do so;
j. use, display, mirror, frame or utilize framing techniques to enclose the Service or any Content, or any portion thereof, unless and solely to the extent Hmbgr makes available the means for embedding any part of the Service or the Content;
k. access, tamper with, or use non-public areas of the Service, Hmbgr’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Hmbgr’s providers;
l. use the Service in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party;
m. sell or otherwise transfer the access granted under the Terms or any Materials (as defined in Section 16) or any right or ability to view, access, or use any Material; or
n. attempt to do any of the acts described in this Section 11, or assist or permit any person in engaging in any of the acts described in this Section 11.
13. Termination of Use; Discontinuation and Modification of the Service. You may terminate your account at any time by contacting customer service at firstname.lastname@example.org. If you terminate your account, you remain obligated to pay all outstanding fees, if any, incurred prior to termination relating to your use of the Service. If you violate any provision of the Terms, your permission from us to use the Service will terminate automatically. In addition, Hmbgr may in its sole discretion terminate your user account on the Service or suspend or terminate your access to the Service at any time for any reason or no reason, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.
14. Additional Fees. You agree that your use of the App may incur third party fees, such as fees charged by your Carrier for data usage, and may be subject to third party terms, such as your Carrier’s terms of service, and you agree to pay all those fees and abide by all those terms.
15. Third-Party Services and Linked Websites. Hmbgr may provide tools through the Service that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on Hmbgr with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.
17. IP Ownership, Reservation of Rights. The Service, including the App, is owned and operated by Hmbgr. The App, Content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, services, and all other elements of the Service (the “Materials”), are protected by copyright, trade dress, patent, and trademark laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. As between you and Hmbgr, all Materials, including intellectual property rights in and to the Materials, are the sole and exclusive property of Hmbgr or its subsidiaries or affiliated companies and/or its third-party licensors. You may not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or make any use of the Materials except as expressly authorized in the Terms. Hmbgr reserves all rights not expressly granted in the Terms. You will not acquire any right, title or interest to the Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in the Terms.
18. Third Party Software. The software you download consists of a package of components, including certain third party software (“Third Party Software”) provided under separate license terms (the “Third Party Terms”), as described in more detail at http://www.hmbgr.com/attributions/. Your use of the Third Party Software in conjunction with the App in a manner consistent with the Terms is permitted, however, you may have broader rights under the applicable Third Party Terms and nothing in the Terms is intended to impose further restrictions on your use of the Third Party Software.
19.2 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”), such as end-user license agreements for any downloadable software applications, or rules that applicable to a particular feature or Content on the Service, subject to Section 19. All Additional Terms are incorporated by this reference into, and made a part of, the Terms.
20. Modification of the Terms. We reserve the right, at our discretion, to change the Terms on a going-forward basis at any time. Please check the Terms periodically for changes. If a change to the Terms materially modifies your rights or obligations, you will be required to accept the modified Terms in order to continue to use the Service. The Terms will be identified as of the most recent date of revision and will be effective immediately upon being made available through the App, except as follows: (a) if any modification materially alters your rights under the Terms, we will attempt to notify you directly through a message sent to the email address you have provided to Hmbgr, if any, or through a pop-up window or other notification when you access or use the App or the Service, (b) the materially modified Terms will be effective upon the earlier of your use of the Service with actual knowledge of the changes or thirty days after the changes are made available to you, and (c) no modifications to the Terms will apply to any dispute between you and Hmbgr that arose prior to the date of that modification. Your use of the Service after modifications to the Terms become effective constitutes your binding acceptance of those changes. If you are dissatisfied with the terms of the Terms or any modifications thereof, then you agree that your sole and exclusive remedy is to discontinue any use of the Service.
21. Feedback. If you provide Hmbgr with any comments, bug reports, feedback, or modifications proposed or suggested by you for the Service (“Feedback”), that Feedback is provided on a non-confidential basis (notwithstanding any notice to the contrary you may include in any accompanying communication), and Hmbgr will have the right to use that Feedback at its discretion, including, but not limited to the incorporation of suggested changes into the Service. You hereby grant Hmbgr a perpetual, irrevocable, nonexclusive license under all rights necessary to so incorporate and use your Feedback for any purpose.
22. Indemnity. You are responsible for your use of the Service, and you will defend and indemnify Hmbgr and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Hmbgr Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys' fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of the Terms, any representation, warranty, or agreement referenced in the Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
23. Disclaimers; No Warranties
THE APP AND SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE Hmbgr ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE Hmbgr ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. Hmbgr EXPRESSLY DISCLAIMS ANY WARRANTIES OF ANY KIND WITH RESPECT TO THE ACCURACY OR FUNCTIONALITY OF LOCATION BASED SERVICES, AND WITH RESPECT TO THE ACCURACY, VALIDITY, OR COMPLETENESS OF ANY INFORMATION OR FEATURES AVAILABLE THROUGH THE SERVICE, OR THE QUALITY OR CONSISTENCY OF THE SERVICE. Hmbgr FURTHER DISCLAIMS ANY WARRANTY OR LIABILITY RELATED TO YOUR CARRIER’S NETWORK OR SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE Hmbgr ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
24. No Affiliation. Hmbgr IS NOT AFFILIATED WITH ANY OTHER USER OF THE SERVICE AND Hmbgr IS NOT RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT THAT YOU MAY INCUR AS THE RESULT OF INTERACTIONS WITH OTHER USERS.
25. Limitation of Liability
IN NO EVENT WILL THE Hmbgr ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY Hmbgr ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 28.4(iii), THE AGGREGATE LIABILITY OF THE Hmbgr ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO Hmbgr FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCES GIVING RISE TO CLAIM; OR (B) $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THE TERMS. THE LIMITATIONS IN THIS SECTION 24 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. 25. THIRD PARTY DISPUTES. Hmbgr IS NOT AFFILIATED WITH ANY CARRIER, SERVICE PROVIDER, USER, OR ADVERTISER, AND ANY DISPUTE YOU HAVE WITH ANY CARRIER, SERVICE PROVIDER, ADVERTISER, OR OTHER THIRD PARTY, INCLUDING WITHOUT LIMITATION ANY OTHER USER OF THE Hmbgr SERVICE, IS DIRECTLY BETWEEN YOU AND THAT THIRD PARTY, AND YOU IRREVOCABLY RELEASE Hmbgr (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES AND EMPLOYEES) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THOSE DISPUTES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
26. Governing Law. The Terms are governed by the laws of the State of California without regard to conflict of law principles that would result in the application of the laws of another jurisdiction. If a lawsuit or court proceeding is permitted under the Terms, then you and Hmbgr agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Los Angeles County, California for the purpose of litigating any dispute. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
28. Dispute Resolution and Arbitration
28.1 Generally. In the interest of resolving disputes between you and Hmbgr in the most expedient and cost effective manner, you and Hmbgr agree that every dispute arising in connection with the Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of the Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of the Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THE TERMS, YOU AND Hmbgr ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
28.2 Exceptions. Despite the provisions of Section 28.1, nothing in the Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
28.3 Arbitrator. Any arbitration between you and Hmbgr will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by the Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Hmbgr.
28.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice”). Hmbgr's address for Notice is: Unmute, Inc., 5482 Wilshire Blvd. #120 Los Angeles, CA 90036. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Hmbgr may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Hmbgr must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Hmbgr will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Hmbgr in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
28.5 Fees. If you commence arbitration in accordance with the Terms, Hmbgr will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Los Angeles County, California but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Hmbgr for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
28.6 No Class Actions. YOU AND Hmbgr AGREE THAT EACH 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, unless both you and Hmbgr agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
28.7 Modifications to this Arbitration Provision. If Hmbgr makes any future change to this arbitration provision, other than a change to Hmbgr's address for Notice, you may reject the change by sending us written notice within 30 days of the change to Hmbgr's address for Notice, in which case your account with Hmbgr will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
28.8 Enforceability. If Section 28.6 is found to be unenforceable or if the entirety of this Section 28 is found to be unenforceable, then the entirety of this Section 28 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 26 will govern any action arising out of or related to the Terms.
30. Contact Information. The App and the Service is offered by Unmute, Inc., located at 5482 Wilshire Blvd #120 Los Angeles, CA 90036. You may contact us by sending correspondence to that address or by emailing us at email@example.com.
31. Notice Regarding Apple. If you are using our mobile applications on an iOS device, the terms of this Section 31 apply. You acknowledge that the Terms are between you and Hmbgr only, not with Apple, and Apple is not responsible for the Service or its content. Apple has no obligation to furnish any maintenance or support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claim by you or any third party relating to the Service or your possession or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, or discharge of any third party claim that the Service or your possession and use of the mobile application infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of Section 31 of the Terms, and upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce this Section 31 of the Terms against you. You hereby represent and warrant that:(i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.