THESE TERMS OF SERVICE (“AGREEMENT”) CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU (THE “USER”) AND BLUEPATHPLANET, INC. (“BLUEPATHPLANET”, “WE”, “OUR”, OR “US”) STATING THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE MOBILE OR WEB-BASED APPLICATIONS (THE “APPLICATIONS”). PLEASE READ THIS AGREEMENT CAREFULLY. BY DOWNLOADING, INSTALLING AND/OR USING THE APPLICATIONS, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT DOWNLOAD, INSTALL AND/OR USE THE APPLICATIONS.
In some instances, additional terms and conditions (“Additional Terms”) may apply to your use of the Applications or to a service or product offered via the Applications. To the extent there is a conflict between this Agreement and any Additional Terms, the Additional Terms will control unless they state otherwise.
1. PRIVACY POLICY.
Bluepathplanet respects the privacy of its Users. Please refer to Bluepathplanet’s Privacy Policy located at http://bluepathplanet.com/privacy which explains how we collect, use, and disclose information that pertains to your privacy. When you access or use the Applications, you signify your agreement to this Privacy Policy, which is fully incorporated into and is a part of this Agreement.
2. ABOUT THE APPLICATIONS.
The Bluepathplanet Applications provide web-based and mobile platforms that allows Users to connect licensed buyers and sellers of goods and services. Bluepathplanet requires that all Users of the applications be licensed under applicable state law in which it does business. Bluepathplanet will conduct its own due diligence as to whether each producer, processor, or distributor using the applications is properly licensed in the state in which it does business. All Users of the applications are responsible for providing complete and truthful information to Bluepathplanet and for complying with all applicable laws, regulations and policies at all times. Bluepathplanet is not responsible for any non-compliance or any resulting civil or criminal penalties.
BLUEPATHPLANET DOES NOT REPRESENT THAT ANY TRANSACTIONS OFFERED OR CONDUCTED VIA THE APPLICATIONS ARE LAWFUL UNDER FEDERAL, STATE, OR LOCAL LAWS OR REGULATIONS.
3. USER REPRESENTATIONS
You represent that you are currently licensed to engage in the business in which you do business. You represent that you will promptly notify Bluepathplanet of any change in the status of any business licenses, and of any inspections, fines, penalties, inquiries, subpoenas, court orders, or search warranties by any regulating agency or law enforcement.
3. ELIGIBILITY.
You need to be at least 21 years old and a resident of the United States to register for and use the Applications. By using the Applications, you represent and warrant that you are at least 21 years old, that you have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that you will comply with all applicable laws, regulations, rules and policies at all times. You further represent and warrant that you have not previously been suspended or removed from using the Applications and that you may enter into this Agreement without violating any other agreement to which you are a party.
4. ACCOUNT REGISTRATION.
Each User may create a personalized account to access the Applications, exchange information with other Users, and to receive messages and notifications from Bluepathplanet. User accounts include a unique username, your email address, you phone number, and a password. If you are a business, we may also need your business license number and other verifying information. You agree to provide true, accurate, current and complete data for your accounts and to maintain and update account data to keep it true, accurate, current, and complete. You further agree to notify us immediately of any unauthorized use of your password and/or account. You will be responsible for any liabilities, losses, or damages arising out of the unauthorized use of your username, password and/or account. We have the right to provide account data, content or use records, and other information in response to a subpoena, warrant, order or other legal request.
5. USERS.
a. Payment Method. If you have a paid membership to any of our Applications, our third party e-commerce solution will process your membership payment.
b. Taxes. You will be responsible for any taxes that apply to each transaction you complete via the Applications.
c. Late Payments. Payments not made when due shall be subject to late charges equal to one and one-half percent (1.5%) interest per month on the overdue amount or the maximum rate allowed by law. You shall reimburse us for the collection of any late payments or interest, including attorneys’ fees, court costs, and collection agency fees.
6. VERIFICATION OF USER IDENTITY.
Maintaining a safe and secure User community is very important to Bluepathplanet. When interacting with other Users, you should exercise caution and common sense to protect your personal safety and property.
Any interactions and communications with other Users must comply with respective state laws, regulations and policies. Neither Bluepathplanet nor its Affiliates are responsible for any civil or criminal penalties or consequences for non-compliance. Please review your state and local rules and regulations on marijuana or hemp activity before using the Applications.
NEITHER BLUEPATHPLANET NOR ITS AFFILIATES ARE RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE APPLICATIONS AND YOU HEREBY RELEASE BLUEPATHPLANET AND ITS AFFILIATES FROM ANY LIABILITY RELATED THERETO. BLUEPATHPLANET AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE APPLICATIONS.
7. USE RESTRICTIONS.
Your permission to use the Applications is conditioned upon the following use and conduct restrictions.
You agree that you will not under any circumstances: post any information that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable and offensive; use the Applications for any unauthorized or unlawful purpose or for the promotion of illegal activities; attempt to, or harass, abuse or harm another person or group; use another User’s account without permission; provide false or inaccurate information when registering an account; interfere or attempt to interfere with the proper functioning of the Applications; make any automated use of the system, or take any action that we deem to impose or to potentially impose an unreasonable or disproportionately large load on our servers or network infrastructure; bypass any robot exclusion headers or other measures we take to restrict access to the Applications or use any software, technology, or device to scrape, spider, or crawl the Applications or harvest or manipulate data; or publish or link to malicious content intended to damage or disrupt another User’s browser or computer.
8. POSTING AND CONTENT RESTRICTIONS.
When you create your own personalized account, you may be able to provide content to the Applications, to communicate with other users, and provide information regarding a User’s goods and services (collectively, “User Content”). You are solely responsible for the User Content that you post, upload, link to or otherwise make available via the Applications. You agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. Bluepathplanet, however, reserves the right to remove any User Content from the Applications at its discretion.
The following rules pertain to User Content. By transmitting and submitting any User Content while using the Applications, you agree as follows: You are solely responsible for your account and the activity that occurs while signed in to or while using your account; You will not post information that is malicious, false or inaccurate; You will not submit content that is copyrighted or subject to third party proprietary rights, including privacy, publicity, trade secret, etc., unless you are the owner of such rights or have the appropriate permission from their rightful owner to specifically submit such content; and You hereby affirm we have the right to determine whether any of your User Content submissions are appropriate and comply with these Terms of Service, remove any and/or all of your submissions, and terminate your account with or without prior notice. You understand and agree that any liability, loss or damage that occurs as a result of the use of any User Content that you make available or access through your use of the Applications is solely your responsibility. Bluepathplanet is not responsible for any public display or misuse of your User Content. Bluepathplanet does not, and cannot, pre-screen or monitor all User Content. However, at our discretion, we, or technology we employ, may monitor and/or record your interactions with the Applications.
9. TERMINATION AND SUSPENSION.
Bluepathplanet may terminate or suspend your right to access or use the Applications in the event that we believe that you have breached this Agreement (a “User Breach”) by providing you with email notice of such User Breach and such termination or suspension, and such termination or suspension will be effective immediately upon delivery of notice. We may also terminate or suspend your account without notice if we believe it is required to prevent damage, harm or injury to us or anyone else.
If Bluepathplanet terminates or suspends your right to access or use the Applications, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, Bluepathplanet reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
Even after your right to use the Applications is terminated or suspended, this Agreement will remain enforceable against you.
Bluepathplanet reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the Applications at its sole discretion. Bluepathplanet is not liable to you for any modification or discontinuance of all or any portion of the Applications. Notwithstanding anything to contrary in this Section 10, Bluepathplanet has the right to restrict anyone from completing registration as a User if Bluepathplanet believes such person may threaten the safety and integrity of the Applications, or if, in Bluepathplanet’s discretion, such restriction is necessary to address any other reasonable business concern.
You may terminate this Agreement at any time by ceasing all use of the Applications. All sections which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
10. ONLINE CONTENT DISCLAIMER.
Opinions, advice, statements, offers, or other information or content made available through the Applications, but not directly by Bluepathplanet, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. Bluepathplanet does not guarantee the accuracy, completeness, or usefulness of any information on the Applications and neither does Bluepathplanet adopt nor endorse, nor is Bluepathplanet responsible for, the accuracy or reliability of any opinion, advice, or statement made posted or transmitted via the Applications. Bluepathplanet takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts or sends over the Applications. Under no circumstances will Bluepathplanet be responsible for any loss, damage or injury resulting from anyone’s reliance on information or other content posted on the Applications, or transmitted to Users.
Though Bluepathplanet strives to enforce these Terms of Service, you may be exposed to User Content that is inaccurate or objectionable. Bluepathplanet reserves the right, but has no obligation, to monitor the materials posted in the public areas of the Applications or to limit or deny a User’s access to the Applications or take other appropriate action if a User violates these Terms of Service or engages in any activity that violates the rights of any person or entity or which we deem unlawful, offensive, abusive, harmful or malicious. Bluepathplanet shall have the right to remove, with or without notice, any such material that in its sole opinion violates, or is alleged to violate, the law or this agreement or which might be offensive, or that might violate the rights, harm, or threaten the safety of Users or others. Unauthorized use may result in criminal and/or civil prosecution under Federal, State and local law. If you become aware of misuse of our Applications, please contact us legal@forwardspark.com.
11. LINKS TO OTHER SITES AND/OR MATERIALS.
As part of the Applications, Bluepathplanet may provide you with convenient links to third party website(s) (“Third Party Sites”) as well as content or items belonging to or originating from third parties (the “Third Party Applications, Software or Content”). These links are provided as a courtesy to Users. Bluepathplanet has no control over Third Party Sites and Third Party Applications, Software or Content or the promotions, materials, information, goods or applications available on these Third Party Sites or Third Party Applications, Software or Content. Such Third Party Sites and Third Party Applications, Software or Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by Bluepathplanet, and Bluepathplanet is not responsible for any Third Party Sites accessed through the Applications or any Third Party Applications, Software or Content posted on, available through or installed from the Applications, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Sites or the Third Party Applications, Software or Content. Inclusion of, linking to or permitting the use or installation of any Third Party Site or any Third Party Applications, Software or Content does not imply approval or endorsement thereof by Bluepathplanet. If you decide to leave the Applications and access the Third Party Sites or to use or install any Third Party Applications, Software or Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Applications or relating to any applications you use or install from the site.
12. COPYRIGHT COMPLAINTS AND COPYRIGHT AGENT.
a. Termination of Repeat Infringer Accounts. Bluepathplanet respects the intellectual property rights of others and requests that the Users do the same. Pursuant to 17 U.S.C. 512(i) of the United States Copyright Act, Bluepathplanet has adopted and implemented a policy that provides for the termination in appropriate circumstances of Users of the Application who are repeat infringers. Bluepathplanet may terminate access for participants or Users who are found repeatedly to provide or post protected third party content without necessary rights and permissions.
b. DMCA Take-Down Notices. If you are a copyright owner or an agent thereof and believe, in good faith, that any materials provided on the Applications infringe upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (see 17 U.S.C 512) (“DMCA”) by sending the following information in writing to Bluepathplanet’s designated copyright agent at 3708 Airport Way S, Seattle, WA 98134:
i. The date of your notification;
ii. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
iii. A description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
iv. A description of the material that is claimed to be infringing or to be the subject of infringing activity and information sufficient to enable us to locate such work;
v. Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and/or email address;
vi. 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 owner, its agent, or the law; and
vii. A statement that the information in the notification is accurate, and under penalty of perjury, that
c. Counter-Notices. If you believe that your User Content that has been removed from the Applications is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content in your User Content, you may send a counter-notice containing the following information to our copyright agent using the contact information set forth above:
i. Your physical or electronic signature;
ii. A description of the content that has been removed and the location at which the content appeared before it was removed;
iii. A statement that you have a good faith belief that the content was removed as a result of mistake or a misidentification of the content; and
iv. Your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court in Washington state and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by Bluepathplanet copyright agent, Bluepathplanet may send a copy of the counter-notice to the original complaining party informing such person that it may reinstate the removed content in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or User, the removed content may (in Bluepathplanet’s discretion) be reinstated on the Applications in 10 to 14 business days or more after receipt of the counter-notice.
13. LICENSE GRANT.
By posting any User Content via the Applications, you expressly grant, and you represent and warrant that you have a right to grant, to Bluepathplanet a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, if applicable, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Applications.đž
14. INTELLECTUAL PROPERTY.
The Applications, all content (other than User Content) made available on or through the Applications, including without limitation images, graphics, photos, video, text and sound (“Content”), and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Applications, is owned by Bluepathplanet, its licensors, vendors, agents and/or its content providers. All elements of the Applications are protected by intellectual property laws. The Applications may only be used for the intended purpose for which they are made available. The applications, Content and all related rights (including but not limited to copyrights, trademarks and other proprietary rights) are the exclusive property of Bluepathplanet, its affiliates, or their licensors unless otherwise expressly agreed. You will not remove any trademark, service mark, copyright or other proprietary notices from Content or materials found on the Applications. Other product and company names that are mentioned on the Applications may be trademarks of their respective owners. We reserve all rights that are not expressly granted to you under this Agreement.
15. USER CONSENT TO RECEIVE COMMUNICATIONS IN ELECTRONIC FORM.
You (a) consent to receive communications from Bluepathplanet in an electronic form via the email address you have submitted; and (b) agree that all Terms of Service, agreements, notices, disclosures, and other communications that Bluepathplanet provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect your non-waivable rights.
We may also use your email address, to send you other messages, including information about Bluepathplanet and special offers. You may opt out of such email by changing your account settings or sending an email to legal@forwardspark.com or mail to the following postal address:
Bluepathplanet
Customer Support
3708 Airport Way S
Seattle, WA 98134
Opting out may prevent you from receiving messages regarding Bluepathplanet or special offers.
16. WARRANTY DISCLAIMER.
THE APPLICATIONS ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, BLUEPATHPLANET EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE APPLICATIONS INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, THE COMPANY MAKES NO WARRANTY OR REPRESENTATION THAT ACCESS TO OR OPERATION OF THE APPLICATIONS WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING AND/OR USE OF FILES, INFORMATION, CONTENT OR OTHER MATERIAL OBTAINED FROM THE APPLICATIONS. SOME JURISDICTIONS LIMIT OR DO NOT PERMIT DISCLAIMERS OF WARRANTY, SO THIS PROVISION MAY NOT APPLY TO YOU.
NEITHER BLUEPATHPLANET NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OR THIRD PARTY.
IN ADDITION, EACH USER IS RESPONSIBLE FOR THEIR SELECTION OF A GOOD OR SERVICE OFFERED BY ANOTHER USER ON THE APPLICATIONS, AND FOR SELECTING THEIR SELLER. BLUEPATHPLANET DOES NOT PROVIDE ANY REPRESENTATION OR WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED BY A USER AND DOES NOT RECOMMEND ANY PARTICULAR BUYER OR SELLER. BLUEPATHPLANET DOES NOT PROVIDE ANY WARRANTIES OR GUARANTEES REGARDING ANY BUYER’S OR SELLER’S PROFESSIONAL ACCREDITATION, REGISTRATION OR LICENSE.
17. LIMITATION OF DAMAGES; RELEASE.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BLUEPATHPLANET, ITS AFFILIATES, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, LICENSORS OR PARTNERS, BE LIABLE TO YOU FOR ANY LOSS OF PROFITS, USE, OR DATA, OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, HOWEVER ARISING, THAT RESULT FROM (A) THE USE, DISCLOSURE, OR DISPLAY OF YOUR USER CONTENT; (B) YOUR USE OR INABILITY TO USE THE APPLICATIONS; (C) THE APPLICATIONS GENERALLY OR THE SOFTWARE OR SYSTEMS THAT MAKE THE APPLICATIONS AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH BLUEPATHPLANET OR ANY OTHER USER OF THE APPLICATIONS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BLUEPATHPLANET HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS LIMIT OR DO NOT PERMIT DISCLAIMERS OF LIABILITY, SO THIS PROVISION MAY NOT APPLY TO YOU.
IN THE EVENT OF ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATED TO THE APPLICATIONS, CONTENT OR GOODS OR SERVICES OFFERED, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THE APPLICATIONS. THE AGGREGATE LIABILITY OF BLUEPATHPLANET, ITS AFFILIATES, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, LICENSORS OR PARTNERS, FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, REGARDLESS OF LEGAL THEORY, IS LIMITED TO THE LESSER OF (A) DIRECT DAMAGES PROVEN BY YOU OR (B) THE AMOUNT OF FEES OR CHARGES PAID BY YOU TO BLUEPATHPLANET DURING THE 3-MONTH PERIOD BEFORE THE DATE ON WHICH ANY CLAIM AROSE.
If you have a dispute with one or more Users, you release us (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 such 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.”
18. INDEMNIFICATION.
Subject to the terms and conditions set forth in section, each party (as “Indemnifying Party”) shall indemnify, hold harmless, and defend the other Party and its officers, directors, employees, agents, Affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorney fees and the costs of enforcing any right to indemnification under this Agreement, and the costs of pursuing any insurance providers, incurred by Indemnified Party (collectively, “Losses”), relating to, arising out of or resulting from: (i) breach or non-fulfillment of any representation, warranty or covenant under of this Agreement by Indemnifying Party; (ii) any negligent or more culpable act or omission of Indemnifying Party (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement; (iii) any infringement, misuse, or misappropriation of any third-party intellectual property rights; (iv) any violation or alleged violation of the intellectual property rights of Indemnified Party as a result of Indemnifying Party’s performance under this Agreement (subject to the exceptions and limitations listed below); (iv) any breach of any confidentiality obligations; (v) any violation of any law; (vi) any bodily injury, death of any person or damage to real or tangible personal property caused by the negligent acts or omissions of Indemnifying Party; (vii) any misuse of, or unauthorized access to, the Applications; or (viii) your violation of any law, rule or regulation of the United States or any other jurisdiction, including without limitation concerning the licensing, cultivation, manufacture, possession, distribution, testing, marketing, purchase, sale and/or transfer of marijuana, hemp, and/or products derived therefrom. Bluepathplanet may assume exclusive control of any defense of any matter subject to indemnification by you, and you agree to cooperate with Bluepathplanet in such event.
Exceptions and Limitations. Notwithstanding anything to the contrary in this Agreement, Indemnifying Party is not obligated to indemnify, hold harmless or defend Indemnified Party against any claim if such claim or corresponding Losses arise out of or result from Indemnified Party’s: (i) negligence or more culpable act or omission (including recklessness or willful misconduct); (ii) bad faith failure to comply with any of its material obligations set forth in this Agreement; or (iii) violation or alleged violation of the intellectual property rights of a third party, where such infringement was absent or non-existent prior to Indemnified Party’s use or exploitation of the intellectual property.
As used in this Agreement, “Affiliate” means any other individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity (each, a “Person”), that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. For purposes of this definition, the term “control” means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
19. DISPUTE RESOLUTION.
Informal Negotiations. To expedite resolution and reduce the cost of any dispute, controversy or claim related to this Agreement (“Dispute”), you and Bluepathplanet agree to first attempt to negotiate any Dispute informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon written notice. You address is the email address submitted with the creation of a User account. Bluepathplanet’s address for such notices is:
Bluepathplanet
12224 NE Bel Red Road #3692
Bellevue WA 98004
Binding Arbitration. If you and Bluepathplanet are unable to resolve a Dispute through informal negotiations, all claims arising from use of the Applications will be finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT IF EITHER PARTY ELECTS TO ARBITRATE, NEITHER PARTY WILL HAVE THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and Bluepathplanet may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. The prevailing party in arbitration will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. In any dispute, neither party will assert that the Agreement is invalid due to illegality.
Waiver of Right to be a Plaintiff or Class Member in a Purported Class Action or Representative Proceeding. You and Bluepathplanet agree that any arbitration will be limited to the Dispute between Bluepathplanet and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND BLUEPATHPLANET ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and Bluepathplanet otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding.
Location of Arbitration. Arbitration will take place exclusively in Seattle, Washington. You and Bluepathplanet agree that for any Dispute not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, the Washington state and Federal courts located in King County have exclusive jurisdiction and you and Bluepathplanet agree to submit to the personal jurisdiction of such courts.
Right to Opt Out of Arbitration and Class Action/Jury Trial Waiver. You may opt out of the foregoing arbitration and class action/jury trial waiver provision of this Agreement by notifying Bluepathplanet in writing within 30 days of the date you first registered for the Applications or 30 days from the date this Agreement was last updated. To opt out, you must send a written notification to Bluepathplanet at 3708 Airport Way S, Seattle, WA 98134, that includes (a) your account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver provisions.
Except as expressly provided otherwise, this Agreement will be is governed by, and will be construed under, the laws of the State of Washington, without regard to choice of law principles.
20. MODIFICATION OF TERMS OF SERVICE.
We can amend these Terms of Service at any time and will update these Terms of Service in the event of any such amendments. It is your sole responsibility to check the Applications from time to time to view any such changes in the Agreement. If you continue to use the Applications, you signify your agreement to our revisions to these Terms of Service. However, we will notify you of material chances to the terms by posting a notice on our homepage and/or sending an email to the email address you provided to us. For this additional reason, you should keep your contact and profile information current. Any changes to these Terms of Service (other than as set forth in this paragraph) or waiver of Bluepathplanet’s rights hereunder shall not be valid or effective except in a written agreement bearing the physical signature of an officer of Bluepathplanet. No purported waiver or modification of this Agreement by Bluepathplanet via telephonic or email communications shall be valid.
21. GENERAL TERMS.
If any part of this Agreement is held invalid or unenforceable, that portion of the Agreement will be construed consistent with applicable law. The remaining portions will remain in full force and effect. Any failure on the part of Bluepathplanet to enforce any provision of this Agreement will not be considered a waiver of our right to enforce such provision. Our rights under this Agreement will survive any termination of this Agreement.
You agree that any cause of action related to or arising out of your relationship with Bluepathplanet must commence within ONE year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
Bluepathplanet and its Affiliates will not be responsible for damages or for delays or failures in performance due to due to acts of God, acts of terrorism, civil disorders, rebellion, riots, insurrection, fires, explosions, accidents, floods, vandalism, sabotage, unavailability of equipment, software or parts from vendors, strikes or other labor activity, disputes or conditions, shortages, natural disaster, embargoes, war or unrest, military action, governmental restrictions or action, terrorism or threat of terrorism, computer viruses or worms, computer sabotage, malicious online attacks or other cause beyond their control.
This Agreement including any separate terms and conditions agreed in writing between you and Bluepathplanet, are the entire agreement between you and Bluepathplanet, and supersede any prior understandings or agreements whether written or verbal. These Terms of Service and your use of the Applications are governed by the federal laws of the United States of America and the laws of the State of Washington, without regard to conflict of law provisions. You agree that the Uniform Computer Information Transactions Act and the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
Bluepathplanet may assign or delegate these Terms of Service and/or Bluepathplanet’s Privacy Policy, in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under the Terms of Service or Privacy Policy without Bluepathplanet’s prior written consent, and any unauthorized assignment and delegation by you is void.
22. CONFIDENTIALITY
Confidentiality: Each Party (“Disclosing Party”) has certain Confidential Information that it may share with the other Party (“Recipient”) for the sole purpose of performing this Agreement. “Confidential Information” means proprietary, nonpublic or trade secret information disclosed in any form, that Disclosing Party designates as being confidential or that should reasonably have been understood as confidential. Confidential Information does not include information that (a) is already known to Recipient when disclosed by Disclosing Party and was not obtained unlawfully, (b) becomes publicly known without fault of Recipient, (c) is independently developed by Recipient or (d) Disclosing Party approves in writing to be released publicly. Each Party will use reasonable care to prevent unauthorized disclosure of Confidential Information. Recipient may disclose to its lawyers, accountants, employees or agents who have agreed in writing to confidentiality duties as strict as this Agreement. Recipient may disclose Confidential Information as required by court order or legal request, if Recipient gives prior notice to Disclosing Party, cooperates with Disclosing Party to obtain a protective order, and only discloses what is necessary to comply. Upon request, Recipient will return or destroy all copies of Disclosing Party’s Confidential Information. Confidentiality obligations will survive the termination of this Agreement.
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