SHARAKU LLC TERMS OF SERVICE
NOTICE TO ALL CUSTOMERS: THANK YOU FOR USING THE SHARAKU, LLC SERVICES. PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE ACCESSING OR USING SERVICES.
THESE TERMS OF SERVICE (“TERMS”) GOVERN YOUR USE OF THE SHARAKU LLC (“SHARAKU”, “US,” “WE,” OR “OUR”) WEBSITE, APPLICATIONS, TOOLS, SOFTWARE, AND DIGITAL PRODUCTS AND SERVICES MADE AVAILABLE TO YOU, INCLUDING ANY FEATURE, FUNCTIONALITY, CONTENT, DATA, AND/OR IMAGE GENERATION SERVICE MADE AVAILABLE TO YOU BY SHARAKU (COLLECTIVELY, THE “SERVICES”). PLEASE REVIEW THESE TERMS CAREFULLY. BY ACCESSING OR USING ANY PART OF THE SERVICES OR OTHERWISE ACCEPTING THESE TERMS, YOU AGREE THAT THESE TERMS SHALL APPLY AND BECOME BINDING ON YOU AND, IF APPLICABLE, THE COMPANY THAT YOU REPRESENT (COLLECTIVELY, “YOU”) ON THE FIRST DATE YOU ACCESS OR USE ANY PART OF THE SERVICES OR OTHERWISE ACCEPT THESE TERMS, WHETHER BY EXECUTING AN ORDER FORM REFERENCING THESE TERMS, CLICKING THE “I ACCEPT” BUTTON INDICATING ACCEPTANCE OF THESE TERMS, OR OTHERWISE USING THE SERVICES. THESE TERMS AND ANY ORDER FORM THAT YOU AGREE TO ARE COLLECTIVELY REFERRED TO AS THE “AGREEMENT”. THESE TERMS GOVERN THE TERMS AND CONDITIONS UNDER WHICH YOU MAY ACCESS AND USE THE SERVICES AND RELATED SHARAKU INFORMATION, MATERIALS, AND/OR DOCUMENTATION. IF YOU DO NOT AGREE TO THESE TERMS IN THEIR ENTIRETY, YOU ARE NOT AUTHORIZED TO USE THE SERVICES.BY CLICKING THE ONLINE “I ACCEPT” BUTTON AND/OR SIGNING AN ORDER FORM, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO ALL OF THE TERMS AND CONDITIONS OF THE AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS OF THE AGREEMENT, DO NOT CLICK THE “I ACCEPT” BUTTON OR ATTEMPT TO ACCESS OR USE THE SERVICES.
YOU ARE AN INDIVIDUAL ACCEPTING THE AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE AGREEMENT, IN WHICH CASE THE TERM “YOU” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH LEGAL AUTHORITY, YOU MUST NOT ACCEPT THESE TERMS NOR MAY YOU USE THE SERVICES.NOTICE OF BINDING ARBITRATION AND WAIVER OF CLASS ACTION: THESE TERMS INCLUDE A MANDATORY BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER, WHICH LIMIT YOUR RIGHTS IN THE EVENT OF A DISPUTE RELATED TO THE SERVICES. PLEASE REFER TO THE “ARBITRATION AGREEMENT AND CLASS ACTION WAIVER” SECTION BELOW FOR MORE INFORMATION.SUBJECT TO APPLICABLE LAW, SHARAKU’S COMPETITORS ARE PROHIBITED FROM ACCESSING OR USING THE SERVICES IN ANY WAY OR MANNER, EXCEPT WITH SHARAKU’S PRIOR WRITTEN CONSENT.
1. Use of the Services; Changes to the Terms and Services.
(a) Any generated images made through the use of the Services are not stored on our system for your benefit. If you would like to save any image you have created from use of the Services, you must do so yourself after creating it.
(b) Except to the extent prohibited by applicable law, we reserve the right, in our sole discretion, to change these Terms from time to time by posting a revised version of the Terms on our website. Changes to the Terms are effective immediately upon posting them on our website. We will indicate the date on which the Terms were last updated at the top of these Terms. Your continued use of the Services after such change constitutes your agreement to the modified Terms. You should review our website frequently for revisions to the Terms. If you do not agree to the modified Terms, you should discontinue your use of the Services. In addition, Sharaku may at any time modify any part of the Services, including any functionality or feature offered through the Services, temporarily or permanently, for any reason, with or without notice to you.
3. Minimum Age. You represent that you are at least 18 years of age (or the age of majority in the State or country in which you reside). The Services are not intended for minors and you may not use the Services if you are under 18 years of age (or under the age of majority in the state or country in which you reside). Sharaku does not target its Services to people under 18, and we do not permit any users under 18 to use our Services.
4. Sharaku Data.
(a) Sharaku makes available certain artificial intelligence-created images, data, information, and related materials to customers through the Services including, without limitation, information about prompts to generate images, negative prompts to prevent generation of certain image attributes, and images produced by artificial intelligence (collectively, “Sharaku Data”). As between you and Sharaku, all Sharaku Data are the property of Sharaku and Sharaku retains all right, title, and interest in and to all Sharaku Data.
(b) You agree to access, use, disclose, retain and otherwise process Sharaku Data only for the purpose of using the Services (the “Permitted Purposes”) in accordance with all applicable laws and regulations and subject to the terms and conditions of these Terms. Unless required by applicable law, you agree not to access, use, disclose, retain, or otherwise process Sharaku Data for any other purpose. You are strictly forbidden from accessing, using or otherwise processing Sharaku Data:
in any unlawful, biased, fraudulent, or discriminatory manner or for purposes of tracking, profiling or surveilling individuals; to send fraudulent or unlawful communications to individuals or entities; or
to sell, rent, license, release, disclose, distribute, disseminate, sublicense, transfer, or otherwise make available, in whole or in part, any Sharaku Data to a third party for monetary or other valuable consideration, or otherwise incorporate any portion of Sharaku Data into your own or others’ products or services.
(c) You shall take commercially reasonable steps to protect Sharaku Data from misuse, theft, unauthorized access, misappropriation, and any other compromise. You shall promptly notify Sharaku in writing at email@example.com upon becoming aware of any actual or suspected unauthorized access to or misuse, theft, misappropriation, or other compromise of Sharaku Data (“Data Incident”). In the event of a Data Incident, you shall promptly investigate the incident, take all necessary and advisable corrective actions, and cooperate fully with Sharaku in all reasonable and lawful efforts to prevent, mitigate, and/or rectify the incident.
5. Prohibited Uses. You agree to use the Services professionally, ethically, and lawfully. You may not use the Services in any manner that:
Is defamatory, unlawful, harassing, abusive, threatening, obscene, hateful, sexist, or racially or ethnically offensive;
Constitutes a breach of any person’s privacy or publicity rights;
Violates any statute, regulation, or ordinance;
Promotes software or services that deliver any unsolicited mail and/or SPAM; or
Promotes, encourages, facilitates, and/or threatens violence, terrorism, or other activity that promotes or risks any unlawful act.
You shall not upload, post, communicate, or otherwise transmit any images, information, or other material on or through the Services that:
Contain any viruses, Trojan horses, worms, cancel bots, time bombs, spyware, or similar computer malicious code;
Is knowingly untrue, inaccurate, or misleading;
Violates any United States or other law or regulation,
Is obscene, obscene as to minors, child pornography, defamatory, racist, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable; or
Damages or interferes with the operations of the Services or with any other user of the Services.
You further agree that you will not:
Access the Services or obtain information therefrom in any unauthorized manner;
Abuse or misuse passwords, Sharaku Data, the Services, third-party services, or our systems or network;
Share, sell, distribute or otherwise transfer your Account or allow your login credentials to be used by any other individual.
Impersonate any person or entity;
Falsely state or otherwise misrepresent your affiliation with a person or entity;
Use Sharaku Data or content from the Services for any purpose inconsistent with the purpose of the Services, any purpose other than the Permitted Purposes, or in violation of these Terms;
Use hidden pages, images, or restricted access pages;
Use any automated procedure to gather information or data from the Services by means of what is commonly called a “bot” or otherwise;
Interfere with or disrupt the Services, servers, or networks connected to the Services;
Integrate Sharaku Data into any customer relationship management, marketing automation, or sales enablement platform to allow unauthorized users to access or use Sharaku Data and/or Services;
Breach or attempt to breach the security of software, networks, servers, data, computers, or other hardware relating to the Services (or that of any third party that is hosting or interfacing with any part of the Services); Create any frames pertaining to or using any of the information provided through the Services, or promote bonus items, giveaways, random drawings, contests, or prizes on the Services; Duplicate, copy, or otherwise exploit the Services or content therefrom for unauthorized commercial or private purposes; or
Violate the rights of any third party.
6. Subscription Fees and Payment. (a) You shall pay the applicable subscription fees for your access to and/or use of the Services as set forth in your order form (the “Subscription Fees”). The Subscription Fees are due and payable at the time that you subscribe to any Services and are payable irrespective of whether you make any actual use of the Services. All subscriptions to the Services have a monthly or annual billing cycle. Payment is due in advance at the start of each billing cycle. All subscriptions and purchase amounts are stated in United States dollars and must be paid for in United States dollars. Except as expressly provided in these Terms, all sales are final once you elect to purchase a subscription to the Services and, except as set forth in these Terms, the Services are non-cancelable. Each subscription will automatically renew on a month-to-month basis for monthly subscriptions and on an annual basis for annual subscriptions (each, a “Renewal Term”) unless and until you give us written notice no later than thirty (30) days prior to the next renewal date that you do not wish to renew your subscription. If written notice of non-renewal is given less than thirty days before the renewal date, the Renewal Term then in effect will automatically renew. If you change from a monthly subscription plan to an annual subscription plan, we will bill you for a full year at the next monthly billing date. (b) By agreeing to these Terms, you are giving us permission to charge your credit card, debit card, PayPal account, or other approved methods of payment. You are responsible for keeping your billing information current and accurate. Your credit or debit card will be charged by Sharaku on the first day of each billing cycle. You authorize Sharaku to charge the Subscription Fees to the credit or debit card (or other payment method accepted by Sharaku) provided by you in connection with your Account, plus any sales, use, and/or similar taxes applicable to your purchase of the Services. You represent that you have the legal right to use any credit or debit card or other payment method you provide us.(c) If Sharaku has not received payment by the payment due date, then, without limiting any other right or remedy available to Sharaku, you agree to pay a late fee of 1.0% per month on any outstanding balance or the maximum permitted by law, whichever is lower, plus all reasonable expenses and fees (including attorney’s fees) of collection and related activities.
7. Submitted Data.
(a) When you use the Services, Sharaku may collect data from you and your device through various sources, such as when you use our website, Google Chrome Extension, or features offered to integrate our Services with your account and data on third-party platforms and services (collectively, “Submitted Data”). We may use the Submitted Data to provide the Services in accordance with these Terms or other documentation made available to you. You acknowledge and understand that, upon being enabled, the integrations will stay in place and may continue to collect Submitted Data.
(b) You shall not make available to Sharaku any Submitted Data that you are prohibited from sharing or disclosing to Sharaku. You represent and warrant that you have the right to share all Submitted Data with Sharaku in accordance with these Terms, and that the Submitted Data do not violate or infringe upon our or any third party’s intellectual property rights (including copyrights, trademarks, trade secrets, patents, and publicity rights). You agree that you are solely liable for any losses you or we may incur as a result of the Submitted Data that violate or infringe upon any third party’s intellectual property rights.
8. Intellectual Property.
(a) All content made available to you by Sharaku in connection with the Services, including, without limitation, Sharaku Data, software, text, graphics, images, trademarks, service marks, logos, and any other intellectual property, but excluding your Submitted Data (collectively “Sharaku Content”) is the property of Sharaku and its licensors. Subject to timely payment of applicable Subscription Fees, we grant you a limited, personal, non-sublicensable, non-transferable, non-exclusive, and revocable license to access and use the Services and create artificial intelligence-generated images solely for the Permitted Purposes in accordance with these Terms. You also receive a perpetual license to any artificial intelligence-generated images that you create using the Services. We reserve all rights that are not expressly granted to you under the Agreement or by law. We may revoke this license at any time for any or no reason by terminating your subscription to the Services and, if we terminate the license and/or your subscription without cause, as your sole and exclusive remedy, you shall be entitled receive to a pro-rated refund of any prepaid fees. You may not sell or publicly display or distribute any Sharaku Content or otherwise use the Sharaku Content in a manner not expressly permitted in these Terms without Sharaku’s prior written consent.
(b) The Services contain our intellectual property and that of other third parties and are protected by U.S. and international copyright law and other intellectual property laws. Unauthorized reproduction or distribution of the Services or Sharaku Content, in whole or in part, without our express written consent is not authorized, may result in civil and/or criminal penalties, and may be prosecuted to the maximum extent possible under law. The publication or dissemination of any Sharaku Content or the Services, without our express, written consent is prohibited and may result in termination of your rights to use or access the Services. Unless otherwise explicitly stated in these Terms, we do not provide you with any right to our intellectual property rights, or those of any third party, whether by estoppel, implication, waiver or otherwise, and all rights are hereby reserved by Sharaku.
(c) You shall not modify, alter, remove, or deface any of the trademarks, service marks, or any other intellectual property made available by us in connection with the Services. You shall not use any Sharaku Content for any purpose other than the Permitted Purposes in accordance with these Terms. You agree not to defame or disparage us, our trademarks or service marks, or any aspect of the Services. Unless otherwise specifically agreed in writing by Sharaku, you agree not to adapt, translate, modify, decompile, disassemble, copy, create derivative works of, or reverse engineer the Services or any software or programs used in connection with the provision of the Services.
(a) You shall use the Services including, without limitation, Sharaku Data in compliance with these Terms and all applicable laws, rules, and regulations including, without limitation, privacy laws, rules, and regulations.
(b) Sharaku may, at any time and without prior notice to you or penalty of any kind to Sharaku, suspend, restrict, revoke, or terminate your access to or use of any or all of the Services if Sharaku, in its sole discretion, reasonably believes you have violated these Terms or as Sharaku otherwise deems appropriate to protect the security or integrity of the Services.
(c) You acknowledge and agree that Sharaku will have the right to monitor your use of the Services and your compliance with these Terms. You must not interfere or attempt to interfere with such monitoring. Upon at least five (5) business days’ prior written notice from Sharaku, you agree to make available to Sharaku all requested information and materials reasonably and specifically necessary to demonstrate your compliance with these Terms. Sharaku may, upon written request, ask you to validate or certify your continued compliance with these Terms. Failure to validate or self-certify your compliance upon written request from Sharaku may result in Sharaku revoking your access to the Services, or requiring you to promptly delete Sharaku Data in your possession, custody, or control.
10. Third Party Links and Features.
(b) Without limitation of the foregoing, the Services may contain certain content from third parties which may be subject to its own additional license terms and policies (“Third Party Content”). You should refer to the terms and policies posted on third party websites prior to using any such Third Party Content. You agree that Sharaku is not responsible for the substance or accessibility of any Third Party Content accessible through the Services and understand that you bear all risks associated with your access to or use of such content.
11. Your Account. In order to access the Services, you must establish an account with us (an “Account“). You must be a human to create an Account. Accounts registered by “bots” or other automated methods are not permitted. You may not share an account with any other person or entity and are not permitted to sell, distribute, or otherwise transfer your Account or allow your login credentials to be used by any other individual. You shall maintain the security and confidentiality of your login credentials used to access your Account. You shall choose a strong password that you shall keep secure and confidential. You shall immediately notify Sharaku at firstname.lastname@example.org in the event you believe that your login credentials have been compromised or there has been any unauthorized access to and/or use of your Account. You are solely responsible for any activities and/or actions taken under your Account, including as a result of any unauthorized use of your Account. Sharaku is not liable for any loss or damage you incur as a result of your failure to comply with this Section.
12. Suspension and Termination. Sharaku may, in its discretion, terminate or suspend your access to and/or use of all or part of the Services, temporarily or permanently, for any reason, with or without notice to you. However, if (i) Sharaku terminates or suspends your access to the Services and/or any Sharaku Data for a reason other than your misconduct or breach of these Terms, and you have prepaid for the Services, Sharaku will give you a pro rata refund for any pre-paid amounts for your unexpired subscription to the Services. Upon termination of these Terms for any reason, your license to access or use the Services in any way will terminate, you shall immediately cease use of the Services, and you shall immediately securely destroy any and all Sharaku Content and Sharaku Data in your possession or control, whether in electronic form or hard copy. Upon written request, and within five (5) business days of that request, you shall certify in writing such destruction to Sharaku’s reasonable satisfaction using the form provided by Sharaku. Sharaku may audit your compliance with these obligations and Sharaku’s intellectual property license. If your account is terminated, there is no guarantee of future availability of your data nor of any image that you have created using the Services.
13. Sharaku Warranty and Warranty Disclaimer.
(a) Sharaku represents and warrants that the Services will operate in substantial accordance with the applicable specifications and any related documentation.
(b) EXCEPT AS OTHERWISE STATED IN THESE TERMS, YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. THE SERVICES, INCLUDING ALL SHARAKU CONTENT, ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. WE MAKE NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, ABOUT THE SERVICES, INCLUDING ANY SHARAKU DATA, CONTENT, INFORMATION, SOFTWARE, FUNCTIONS, PROCESSES, ANY IMAGE CREATED BY USING THE SERVICES, AND/OR OTHER CONTENT PROVIDED OR REFERENCED HEREIN.(c) TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE HEREBY DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WE DISCLAIM ALL WARRANTIES RELATING TO THE AVAILABILITY, ACCURACY, SECURITY, PRIVACY, CONFIDENTIALITY, APPROPRIATENESS, RELIABILITY, COMPLETENESS, AND/OR TIMELINESS RELATING TO THE SERVICES. WE DISCLAIM ANY WARRANTY THAT THE SERVICES WILL MEET ANY OF YOUR REQUIREMENTS, BE UNINTERRUPTED, NOT DELAYED OR SUSPENDED, UNCHANGED, OR FREE OF ANY ERROR, VIRUS, OR ANY OTHER HARMFUL COMPONENT, OR THAT WE WILL CORRECT ANY DEFECTS. WE MAKE NO REPRESENTATIONS THAT THE MATERIALS CONTAINED WITHIN AND/OR ANY IMAGE THAT YOU GENERATE BY USING THE SERVICES ARE APPROPRIATEOR LAWFUL. YOU ASSUME FULL RISK OF LOSS AS WELL AS RESPONSIBILITY FOR ANY DAMAGES AND/OR LIABILITY RESULTING OR ARISING FROM YOUR DOWNLOADING AND/OR USE OF ANY IMAGES, FILES, INFORMATION, CONTENT, AND/OR ANY OTHER MATERIAL OBTAINED FROM THE SERVICES.These Terms do not affect those statutory rights that you are entitled to as a consumer and that you cannot contractually agree to alter or waive.
14. Your Representations and Warranties. You represent, warrant and covenant that:
you have the right and authority to enter into and agree to these Terms;
if you are using the Services on behalf of your employer or any other company or person, that you have the authority to enter into these Terms on behalf of such employer, company, and/or person;
you have all rights and permissions necessary (including, but not limited to, intellectual property right) to lawfully make available the Submitted Data to Sharaku for the purposes contemplated by these Terms;
all Submitted Data has been and will be obtained by you, and shared with or transferred to Sharaku, in compliance with all applicable laws and regulations, including, without limitation, ensuring that any required notices have been provided to and necessary consents obtained from individuals or entities; and
you have and will continue to take reasonable steps to ensure that Submitted Data are accurate, complete, and up to date.
15. Indemnification. (a) You shall, at your expense, defend, indemnify, and hold Sharaku, its affiliates and their respective officers, directors, employees, agents, contractors, managers, shareholders, and business partners harmless from and against any and all claims, actions, demands, losses, liabilities, fines, costs, including, without limitation, legal fees, arising or resulting from:
Your breach of these Terms;
Your access to, use, or misuse of the Services and/or any Sharaku Data, Submitted Data, and/or any feature or function provided or made available through the Services; Your act, error, omission or negligence;
Your violation or alleged violation of any law, regulation, or ordinance; or
Your violation or alleged violation of the rights of any third party.
At your expense, we reserve the right to assume the exclusive defense and control of any matter which is subject to indemnification under these Terms. In such case, you agree to cooperate with any reasonable requests assisting us in the defense of such matter. Your obligations as stated herein survive these Terms and your use of the Services.
16. Limitation of Liability.
(a) EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, LOSS OF GOODWILL, BUSINESS REPUTATION, BUSINESS OPPORTUNITIES OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE ACCESS TO AND/OR USE OR INABILITY TO USE THE SERVICES, OR ANY SHARAKU DATA, INFORMATION, IMAGE, OR SUBMITTED DATA PROVIDED FOR ON OR BY THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF YOU HAVE NOTIFIED US ABOUT SUCH DAMAGES, OR FOR ANY CLAIMS BY ANY THIRD PARTY. WE SHALL NOT BE LIABLE FOR ANY DAMAGE OR LIABILITY CAUSED BY, ARISING FROM, OR RELATED TO YOUR ACCESS TO AND/OR USE OF THE SERVICES NOR FROM THE USE OF ANY IMAGE GENERATED FROM USING THE SERVICES. NOTHWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT WILL SHARAKU’S TOTAL AGGREGATE LIABILITY TO YOU, DIRECT OR OTHERWISE, EXCEED ONE HUNDRED DOLLARS ($100).
(b) SHARAKU SHALL NOT BE LIABLE FOR THE ACCURACY, COMPLETENESS, AND/OR UNAVAILABILITY OF THE SERVICES, OR FOR ANY SHARAKU DATA. THE CONTENT OR MATERIALS APPEARING IN OR BEING PRODUCED BY THE SERVICES MAY INCLUDE TECHNICAL, TYPOGRAPHICAL, PHOTOGRAPHIC, AND/OR IMAGING ERRORS. SHARAKU IS NOT RESPONSIBLE FOR ANY SUCH ERRORS. ADDITIONALY AND EXCEPT AS SET FORTH IN THESE TERMS, SHARAKU SHALL NOT BE LIABLE FOR ANY (1) MODIFICATION, PRICE CHANGE, OR SUSPENSION OR DISCONTINUANCE OF THE SERVICES; OR (2) ANY UNAUTHORIZED ACCESS TO OR ALTERATIONS OF THE SERVICES OR YOUR TRANSMISSION OF ANY IMAGE OR DATA OR ANY OTHER MATTER RELATING TO THE SERVICES.(d) Some states may not allow certain limitations and exclusions of liability, so the above limitations or exclusions may not apply to you. In such states, our liability to you shall be limited to the greatest extent permitted by applicable law.
17. ARBITRATION AGREEMENT AND CLASS ACTION WAIVER.
A. Mandatory Arbitration.
(i) YOU AND SHARAKU AGREE TO SUBMIT ANY AND ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT AND/OR YOUR USE OF THE SERVICES (each, a “Dispute”) to binding arbitration pursuant to the Federal Arbitration Act (Title 9 of the United States Code), which shall govern the interpretation and enforcement of this Section (“Arbitration Agreement”). YOU AND SHARAKU WAIVE THE RIGHT TO A TRIAL BY JURY AND ANY RIGHT TO HAVE A DISPUTE HEARD IN COURT. Notwithstanding the foregoing, both you and Sharaku retain the right to: (1) bring an individual action in small claims court (if your claim qualifies and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis); and (2) the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of either party’s copyright, trademark, trade secret, patent, or any other intellectual property rights.
(ii) In arbitration, Disputes are resolved by a neutral arbitrator instead of a judge or jury, discovery is more limited than in court, and the arbitrator's decision is subject to limited review by courts. The arbitrator can award on an individual basis the same damages and relief as a court, including monetary damages, injunctive relief, and declaratory relief. Judgment on the arbitrator's decision and any award may be entered in any court having jurisdiction over the Dispute. A single arbitrator with the American Arbitration Association ("AAA“) will conduct the arbitration, and the award may not exceed the relief allowed by applicable law and these Terms. The arbitration will be conducted in the county of your residence or another mutually agreed location, provided that if the value of the relief sought is $1,000 or less, you or Sharaku may elect to have the arbitration conducted by telephone or based solely on written submissions, which election will be binding on you and Sharaku, subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you or Sharaku may attend by telephone, unless the arbitrator requires otherwise. The AAA's Consumer Arbitration Rules will apply. If AAA will not apply those rules, then AAA's Commercial Arbitration Rules will apply. The AAA's rules and a form that can be used to initiate arbitration proceedings are available at https://www.adr.org/. You and Sharaku agree that if for any reason AAA will not conduct the arbitration, then a court may appoint a substitute arbitrator, and further agree that the choice of AAA as a forum is not integral or a mandatory condition to the Arbitration Agreement.
(iii) The arbitrator will decide all issues relating to the enforceability, interpretation, scope, and application of this Arbitration Agreement (including issues of arbitrability, whether the Arbitration Agreement is unconscionable or illusory, and any defense to arbitration), and these Terms, except that a court will resolve any question regarding the validity or enforceability of the class action waiver set forth in Section B of this Arbitration Agreement. The term "Dispute“ and the requirement to arbitrate will be broadly interpreted and applied.
B. Arbitration Class Action Waiver.
You and Sharaku agree that the arbitration will be conducted solely on an individual basis and not on a class, representative, consolidated, or private attorney general basis. A Dispute may not be consolidated with a claim brought or discovery by any person or entity that is not a party to the arbitration proceeding. The arbitrator may not award relief to any person or entity other than a party to the arbitration proceeding and, subject to these Terms, may only award such relief as is necessary to provide relief to a party to the arbitration proceeding. If a court deems any portion of this Section B invalid or unenforceable, then Sections A and C of this Arbitration Agreement will be null and void.
C. Fees and Costs in Arbitration.
Payment of all filing, administration, and arbitrator fees will be governed by the AAA's rules.
D. Non-Arbitration Class Action and Jury Waiver. You and Sharaku agree that if, for any reason a Dispute proceeds in court rather than arbitration: (1) YOU AND SHARAKU WAIVE ANY RIGHT TO A JURY TRIAL; (2) the Dispute will proceed solely on an individual, non-class, non-representative basis; and (3) neither you nor Sharaku may be a class representative or class member or otherwise participate in any class, representative, consolidated, or private attorney general proceeding.
E. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION, YOU MAY CHOOSE TO PURSUE YOUR CLAIM IN COURT AND NOT BY ARBITRATION IF YOU OPT OUT OF THIS ARBITRATION AGREEMENT WITHIN 30 DAYS FROM THE EARLIER OF: (1) THE DATE YOU ACCEPT THESE TERMS, OR (2) THE DATE YOU FIRST AGREED OR ASSENTED TO AN AGREEMENT WITH SHARAKU THAT CONTAINED AN ARBITRATION PROVISION. The opt-out notice must be postmarked no later than the applicable deadline and emailed to email@example.com. The opt-out notice must state that you do not agree to this Arbitration Agreement and must include your name, address, phone number, and email address. This procedure is the only way you can opt out of this Arbitration Agreement, and failure to comply strictly with this procedure and the applicable deadline automatically will render the opt-out notice null and void. If you opt out of the arbitration provision, all other parts of this Arbitration Agreement will continue to apply.
18. Notice. All notices in connection with these Terms must be given by regular mail (postage prepaid, return receipt requested), courier, or overnight delivery service.
You will provide written notice to Sharaku at:
Chief Executive Officer
2300 West Sahara Avenue, Suite 800
Las Vegas, Nevada 89102
You may ask questions or contact us by email at firstname.lastname@example.org. Sharaku may provide written notice to you using the contact information associated with your Account.
20. Other Terms.
(a) Injunctive Relief. Each party agrees and acknowledge that any access, use, disclosure, retention, or other processing of Sharaku Data or Submitted Data in violation of these Terms may cause immediate and irreparable harm to the disclosing party for which money damages may not constitute an adequate remedy. Therefore, each party agrees that the aggrieved party is entitled to seek to obtain specific performance and injunctive or other equitable relief. The aggrieved party shall be entitled to such equitable relief in addition to all other remedies at law or in equity.
(b) Governing Law and Venue. The Agreement is governed by the laws of the State of Nevada without respect to its conflict of laws provisions. Each party agrees to submit to the exclusive personal jurisdiction of the state and federal courts in Las Vegas, Nevada, excluding any Disputes subject to the dispute resolution procedures in Section 17 (Arbitration Agreement and Class Action Waiver).
(c) Severability. If any provision of these Terms is found to be invalid by any court or arbitrator having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect.
(d) Waiver. Failure by either party to act on or enforce any provision of these Terms shall not be construed as a waiver of that provision or any other provision in these Terms. No waiver shall be effective unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance.
(e) Entire Agreement. Except as expressly agreed to in writing by both parties, these Terms and any order form agreed to by you constitute the entire agreement between the parties with respect to the subject matter, and supersede all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter.
(f) Assignment. We may assign this Agreement including any of our rights and/or obligations without your consent. You may not assign or transfer any rights or obligations under the Agreement or your account to anyone without our consent and any assignment or transfer in violation of this Section is void.
(g) No Third Party Beneficiary. These Terms do not create any third-party beneficiary rights to any person who is not a party to this Agreement.
(h) Customer Support. We only offer support via email. We do not offer telephone or any other type of support.
(i) Survival. Provisions of the Terms relating to limitation of liability, indemnification, intellectual property, use of the Services, venue, governing law, and any other provisions that by their nature should survive, will survive the termination of these Terms.
If you have any questions about these Terms of Service, please contact us at email@example.com.