End User Terms of Sale and Account
THE LEGAL AGREEMENTS SET OUT BELOW GOVERN YOUR USE OF SERVICES (“SERVICES”). BY USING THE SERVICES, YOU AGREE TO THESE TERMS OF SALE AND ACCOUNT. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SERVICES.
2. ACCOUNT BALANCES. You need to have a positive account balance in order to use Tumble Services. You do not need to maintain a Balance in your Account. If you do hold a Balance, that Balance represents an unsecured claim against Tumble. Your Balance will be held in an account insured by the FDIC. Tumble will combine your Balance with the Balances of other Users. Tumble will own the interest or other earnings on pooled Balances. If your Account has a negative Balance, Tumble may either charge the funding source you have on file associated with your Tumble account or deduct amounts you oweTumble from money you subsequently add or receive into your Account.
3. CLOSING YOUR ACCOUNT. You may deactivate your Account at any time by clicking the “deactivate” button in your Account Profile. If your account remains deactivated for a reasonable time, you may be contacted by Tumble to see whether you would like to close the account or you may contact us to do so. Upon Account closure, we will attempt to refund the positive cash balance to the funding source (e.g. debit or credit card) used to fund the Tumble account (“Funding Instrument”), cancel any pending transactions, and you will forfeit any Balances associated with Promotional Value, unless otherwise legally prohibited. You may not close your Account to evade a set off. If you do or we reasonably suspect that may happen, we may hold your Balance for up to 180 Days to protect Tumble, its affiliates, or a third party against the risk of Reversals, Chargebacks, Claims, fees, fines, penalties and other liability. You will remain liable for all obligations related to your Account even after the Account is closed. Account Charges and Fees. Tumble does not charge end users any fees for opening a Tumble account or for the use of the Tumble services. Other charges, for example, from your mobile phone service provider, may apply. Tumble accounts do not have expiration dates.
4. PAYMENTS, TAXES, AND REFUND POLICY. You agree that you will pay for or fund all of the value added to your Tumble Stored Value Account and you agree to pay for products and services you purchase through the Services, and that Tumble may charge your payment method for value added to your Tumble Stored Value Account and decrement your stored value account for any products purchased through the Services and for any additional amounts (including any taxes and late fees, as applicable) that may be accrued by or in connection with your Account. YOU ARE RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL FEES AND FOR PROVIDING TUMBLE WITH A VALID PAYMENT METHOD FOR PAYMENT OF ALL FEES. For details of how purchases or funding is billed please visit www.tumble.to/support. Your total price will include the price of the product or service plus any applicable fees or taxes; any taxes (if applicable) will be based on the location of the purchase, and the sales tax rate in effect at the time you purchase a product. All sales of products are final. We will charge tax for funding an account only in states where required. Prices for products offered via the Services may change at any time, and the Services do not provide price protection or refunds in the event of a price reduction or promotional offering. If technical problems prevent or unreasonably delay delivery of your product, your exclusive and sole remedy is either replacement or refund of the price paid, as determined by Tumble. If you use the Tumble Mobile Application, you agree that you are responsible for any and all fees charges and costs that your service provider charges for your mobile phone or mobile device service, such as fees for SMS, data services, other communications or other fees charged by your service provider. Your device service provider does not provide Tumble Services.
5. RECURRING PAYMENTS. Preapproved Payments. A Preapproved Payment is a payment that you authorize us to directly charge your Payment Method on a one-time or periodic (regular-timed, or occurrence/sporadic basis). Preapproved Payments are sometimes called “subscriptions”, “recurring payments”, “preauthorized transfers” or “automatic payments.”
6. BILLING PROCESS. When you fund your Tumble account, your funding instrument or funding account (“Funding Instrument”) will be billed at the time of or shortly after your transaction. If you use a credit card or debit card account for a transaction, we may obtain preapproval for an amount up to the amount of the funding request or other purchase. All fees will be billed to the Funding Instrument you designate during the registration process. If you want to designate a different Funding Instrument or if there is a change in your Funding Instrument status, you must change your information online in the Account Information section of your account, and if you do not, it may temporarily disrupt your access to the Services while Tumble verifies your new payment information. At the time of purchase or after your transaction, your Tumble account will be funded in an amount equal to the value of the purchase, minus, if applicable, taxes and fees. The value of funds can be used only for goods or services (Stored Value, Allowances, Promotional Value, Gifts and Gift Certificates) in transactions involving the Tumble network.
7. STORED VALUE ACCOUNT, ALLOWANCES & PROMOTIONAL VALUE. You are participating in a stored value program as an End User who may use the Tumble Service to buy products, goods and services from one of a limited number of affiliated merchants. Your account will be funded on a prepaid basis, and able to be reloaded or funded up to $500 per loading or funding, but no account shall have the ability to hold more than $999 at any one time. Stored Value, Allowances & Promotional Value, Gifts and Gift Certificates in addition to unused balances, are not redeemable for cash and cannot (except as required by law, and otherwise described in these Terms of Sale and Account) be returned for a cash refund; exchanged; resold; used to purchase Gifts or Gift Certificates; used to provide Allowances. Unused balances are not transferable. Stored Value, Allowances, Promotional Value, Gifts and Gift Certificates purchased in the United States may be redeemed through the Services only in the United States, its territories, and possessions. The Gift Certificate cash value is 1/10 of one cent. Tumble shall be the Issuer of stored value and the Merchant of Record for that transaction. Stored Value, Allowances, Promotional Value, Gifts and Gift Certificates are issued and managed Tumble (“Issuer”). When your Tumble Account is used for a transaction, the amount of that transaction is deducted from your Tumble account at the time of your transaction. Tumble is not responsible for lost or stolen Stored Value, Allowances, Promotional Value, Gifts and Gift Certificates or lost or stolen usernames, passwords or mobile devices. Risk of loss and title for Stored Value, Allowances, Promotional Value, Gifts and Gift Certificates transmitted electronically pass to the purchaser upon electronic transmission to the recipient. Risk of loss for Stored Value, Allowances, Promotional Value, Gifts and Gift Certificates transmitted electronically pass upon electronic transmission from Tumble. For avoidance of doubt, such recipient may not always be you. Tumble reserves the right to close accounts and request alternative forms of payment if Stored Values, Allowances, Promotional Value, Gifts and Gift Certificates are fraudulently obtained or used on the Service. TUMBLE AS ISSUER, AND ITS LICENSEES, AFFILIATES, AND LICENSORS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO STORED VALUE, ALLOWANCES, PROMOTIONAL VALUE, GIFTS AND GIFT CERTIFICATES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN THE EVENT STORED VALUE, ALLOWANCES, PROMOTIONAL VALUE, GIFTS AND GIFT CERTIFICATES ARE NONFUNCTIONAL, YOUR SOLE REMEDY, AND OUR SOLE LIABILITY, SHALL BE THE REPLACEMENT OF SUCH STORED VALUE, ALLOWANCES, PROMOTIONAL VALUE, GIFTS AND GIFT CERTIFICATES. THESE LIMITATIONS MAY NOT APPLY TO YOU. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY ALSO HAVE ADDITIONAL RIGHTS.
8. PROMOTIONAL VALUE. Tumble Stored Value Accounts may have two or more separate values. All Stored Value Accounts will have the actual amount paid, and some accounts may have associated “Promotional Value” and “Gift Value.” The “Promotional Value” is any additional value beyond the amount paid. For example, if there is a promotion where funding a stored value account has a ten percent increase, so that funding an actual amount paid value of $10 results in your Stored Value Account balance of $11 dollars, the Promotional Value is $1. The Promotional Value is not actual Stored Value, and is subject to different terms and conditions, most notably may expire on a pre-determined date or after a prescribed amount of time, unless prohibited by law. The Merchant is responsible for permitting you to redeem the Promotional Value for at least the amount paid, even after the promotional value has expired.
9. GIFTS. “Gift” is a generic term for products purchased from the Services or Stored Value funded into an account by someone other than end user. Gifts may be made up of Stored Value or Promotional Value. The value of the Gift will be for the Gift Recipient as if that Gift Recipient had self-funded the stored value or received the Promotional Value, with the exception that if an account is closed with a balance remaining from a Gift, that amount shall be returned to the Giftor’s Funding Instrument.
10. TERRITORY. Stored Value, Allowances, Promotional Value, Gifts and Gift Certificates may be purchased only for, and redeemed only by, persons in the United States, its territories, and possessions. Gift recipients must have compatible hardware and parental control settings to utilize some Gifts. Gifts and the Gifting function may not be available in some jurisdictions. Tumble is not responsible for typographic errors.
11. RESTRICTED ACTIVITIES. In connection with your use of our website, your Account, the Tumble Services, or in the course of your interactions with Tumble, other Users, or third parties, you will not: • Breach this Agreement, or any other agreement or policy that you have agreed to with Tumble; • Violate any law, statute, ordinance, or regulation or engage in harassment of other Users, employees or agents; • Infringe Tumble’s or any third party’s intellectual or proprietary property rights (such as copyright, patent, trademark, trade secret or other, or rights of publicity or privacy); • Provide misleading, inaccurate or false information; • Fund your account with fraudulent funds, or receive fraudulent funds; • Failure to cooperate in an investigation or failure to provide information needed for compliance with legal obligations or this Agreement; • Receive or attempt to receive funds from both Tumble and a bank or credit card issuer for the same transaction, in the event of a dispute; • Control an Account that is linked to another Account that has engaged in any of these Restricted Activities; • Use your Account or the Tumble Services in a manner that Tumble or credit card issuers (Visa, MasterCard, American Express, Discover) or any other electronic funds transfer network (Stripe) reasonably believes to be a violation of the card system or card association or network rules; • Allow your Account to have a negative Balance; • Take any action that imposes an unreasonable or disproportionately large load on our infrastructure; facilitate any attack on the system including programming routines that may damage any system, data or Information (viruses, Trojans, worms or other computer programs or subroutines that detrimentally interfere with, surreptitiously intercept or expropriate information; or use any device, software or routine to affect or attempt to interfere with our website or the Tumble Services; use an anonymizing proxy; any automatic or manual process to monitor or copy our website without our prior written permission; and • Take any action that may cause us to lose any of the services from our Internet service providers, payment processors, or other suppliers. If we in our sole discretion, believe you have engaged in any Restricted Activities, to protect ourselves or any third party from any liability (fines, claims, fees), we may without limitation: close, suspend, or limit your access to your Account or the Tumble Services; update any inaccurate Information you provided us; and hold your Balance for up to 180 Days when needed to protect against the risk of liability. Tumble, in its sole discretion, reserves the right to terminate this Agreement, access to its website, or access to the Tumble Services for any reason and at any time upon notice to you and payment to you of any unrestricted funds held in your Balance. If we find you have violated any part of the Restrictive Policy, we reserve the right to refuse to provide the Tumble Services to you in the future or take legal action against you, or both. In the event Clarified Inc. DBA Tumble(“Tumble”) receives notice of a court order or other legal process that affects your account, Tumble will give notice of efforts it shall make to comply with a court order or other legal process, unless the court order or other process directs that Tumble not provide you notice, in which case it won’t (due to the court superseding any notice obligation Tumble has undertaken or agreed to under the terms of this Agreement). Tumble has no duty or obligation to contest or appeal any such order or process.
12. UNAUTHORIZED ACTIVITY AND ERRORS. You should immediately notify Tumble if you believe there has been unauthorized activity or any error on your account, if your password has been lost or stolen or if your mobile device has been lost or stolen. For Errors or Unauthorized Transactions, you may write to Tumble, Attn: Tumble Support, 45 Lansing Street, #1605, San Francisco, CA 94105; send us an email at email@example.com or telephone Tumble Customer Service at (415) 660-8667. If you write to us, please provide us with the following information: a) your name and the email address registered to your Account, b) a description of any suspected errors with transactions and an explanation as to why you believe the transaction is incorrect or why you need more information to identify the transaction, and c) the dollar amount of any suspected Error or Unauthorized Transaction. After you notify us of any suspected Error or Unauthorized Transaction, or we otherwise learn of one, we will conduct an investigation to determine whether there has been an Error or Unauthorized Transaction that is eligible for refund. We will complete our investigation within 14 Days of the date we received your notification of the suspected Error or Unauthorized Transaction. In certain circumstances, we may need additional time to complete our investigation. If we determine that we need more time to complete our investigation, we may authorize you to create a separate account for use while the investigation is under way. We will inform you of our decision within 3 Business Days after completing our investigation. Results. If we determine that there was an error, we will promptly credit the full amount of the error into your Account within 1 Business Day of our determination. Or, if you have already received a provisional credit, you will be allowed to retain those amounts. If we decide that there was not an error, we will include an explanation of our decision in our email to you. If you received a provisional credit, we will remove it from your Account and notify you of the date and amount of the debit. You may request copies of the documents that we used in our investigation. Tumble Processing Errors. We will rectify any processing error that we discover. If the error results in funding less than the correct amount into your Tumble account, Tumble will credit your Account for the difference. If the error results in your receipt of more than the correct amount to which you are entitled, Tumble will debit the extra funds from your Account. Types of Problems Covered. Tumble may be able to assist you in the case you did not receive the item you paid for with Tumble – “Item Not Received” (INR), which is limited to where Tumble has logged information of a purchase that was made but the machine did not function properly to deliver the Item, or the item was lodged in the machine, and you have taken a picture of the item stuck in the machine, and you have photographic proof that the Item was not received. Tumble expressly disclaims all liability for items that were paid for, but not as described, intended or ordered. Tumble is not responsible for typographic errors or for Items incorrectly or mistakenly ordered by the User. In addition, Tumble is not responsible for items incorrectly delivered by the Operator. Tumble may, at its discretion, reverse the transaction without requiring you to escalate the Dispute to a Claim if the claim is under $5. Tumble may, at its discretion, limit or decline to credit a problem for a user that has a disproportionately large amount of Errors, Unauthorized Transactions and other problems. If you are unable to resolve a problem directly with Tumble, we may give you the contact information of the Operator. Error In Funding. You may have credit card chargeback rights. Chargebacks may be filed up to 120 Days after the payment, depending on your issue. You may pursue a Dispute/Claim with Tumble, or you may contact your credit card company and pursue your Chargeback rights. You may not pursue both at the same time or seek a double recovery. If you have an open Dispute or Claim with Tumble, and you also file a Chargeback with your credit card company, Tumble will close your Dispute or Claim, and you will have to rely solely on your Chargeback rights. You understand that in order to claim an Item Not Received, you will take a photo of the undeliverable Item in the machine in order to process the claim. You also agree that if you have received a refund that you are not able to then file a chargeback.
13. DISCLAIMERS YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, SAFETY, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. (I) CLARIFIED INC. DBA TUMBLE; (II) THE PROCESSORS, SUPPLIERS OR LICENSORS OF CLARIFIED INC. DBA TUMBLE; OR (III) ANY OF THE RESPECTIVE AFFILIATES, AGENTS, DIRECTORS AND EMPLOYEES OF ANY OF THE ENTITIES LISTED IN (I) OR (II) ABOVE (COLLECTIVELY, THE “DISCLAIMING ENTITIES” AND INDIVIDUALLY A “DISCLAIMING ENTITY”) DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SERVICES AND THE CONTENT CONTAINED THEREIN, INCLUDING ANY AND ALL: (I) WARRANTIES OF MERCHANTABILITY; (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT ANY DISCLAIMING ENTITY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (III) WARRANTIES OF NON-INFRINGEMENT OR CONDITION OF TITLE. THE DISCLAIMING ENTITIES DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL BE ACCURATE OR MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY THE DISCLAIMING ENTITIES OR OUR AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE DISCLAIMERS IN THIS SECTION MAY NOT APPLY TO YOU. 14. LIMITATION OF LIABILITY TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT WILL THE DISCLAIMING ENTITIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, WITH NO LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THE SERVICES AND THE CONTENT THEREIN, INCLUDING BUT NOT LIMITED TO, ANY STORED VALUE OR STORED VALUE CARD OR DEVICE, PROMOTION OR PORMOTIONAL VALUE, RELATED PRODUCTS AND SERVICES (INCLUDING, BUT NOT LIMITED TO, THE REDEEMABILITY OF CARDS CODES OR PROMOTIONS), THIRD-PARTY SERVICES AND/OR THIRD-PARTY MATERIALS, OR USER GENERATED CONTENT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY) AND EVEN IF THE DISCLAIMING ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE DISCLAIMING ENTITIES’ TOTAL LIABILITY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES EXCEED ANY FEES PAID FOR THE SERVICES (AS OPPOSED TO ANY OTHER FEES/COSTS INCLUDING, WITHOUT LIMITATION, ANY FEES ASSOCIATED WITH YOUR DEVICE, THE COST TO PURCHASE AND OPERATE YOUR DEVICE, THE COST OF ANY CARD CODE OR PROMOTIONAL VALUE OR THE COST OF ANY PRODUCTS OR SERVICES PURCHASED WITH A CARD CODE OR PROMOTIONAL VALUE).
15. INDEMNIFICATION. You agree to defend, indemnify and hold harmless Clarified Inc. DBA Tumble(“Tumble”), its independent contractors, service providers and consultants, and their respective directors, employees and agents, from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to (a) your use of the Sites; (b) any Content or Ideas you provide; (c) your violation of these Site Material and the Services; (d) your violation of any rights of another; or (e) your conduct in connection with the Site. Tumble shall be allowed to control the defense in the case of any legal action.
16. DISPUTES WITH CLARIFIED INC. DBA TUMBLE. You and Clarified Inc. DBA Tumble(“Tumble”) agree that any claim or dispute at law or equity that has arisen or may arise between us will be resolved in accordance with the provisions set forth in this Section with Tumble. Please read this Section carefully. It affects your rights and will impact how claims you and we have against each other are resolved. Please, Contact Tumble First. If a dispute arises between you and Tumble or one of the Operators, please contact Tumble to try to resolve your dispute. Our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost-effective means of resolving the dispute quickly. Disputes between you Tumble regarding the Tumble Services may be reported to Customer Service by writing to Tumble, Attn: Tumble Support, 45 Lansing Street, #1605, San Francisco, CA 94105; sending us an email at firstname.lastname@example.org or calling Tumble Customer Service at (415) 660-8667. Applicable Law. You agree that the laws of the State of Delaware, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and Tumble, except as otherwise stated in this Agreement. Release of Clarified Inc. DBA Tumble. If you have a dispute with one or more Users, or an Operator with whom we cannot assist, you release Clarified Inc. DBA Tumble(“Tumble”) (our Affiliates, and our and their respective officers, directors, agents, joint ventures, employees and suppliers) from any and all Claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections, whether statutory or otherwise that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release. The failure of Tumble to exercise in any respect any right or remedy provided for herein shall not be deemed a continuing waiver or a waiver, partial or complete, of any future breach or any other right or remedy hereunder. State Agencies. In addition to reporting complaints against Tumble to us described above, if you are a California resident, you may be able to report complaints to the California Department of Financial Institutions at its toll-free telephone number, 1-800-622-0620, by e-mail at email@example.com, or by mail at Department of Financial Institutions, Consumer Services, 1810 13th Street, Sacramento, CA 95811. Florida residents may be able to contact the Florida Department of Financial Services in writing at 200 East Gaines Street, Tallahassee, Florida, 32399, or by telephone at 1-800-342-2762. If you are a California resident, you have a right to receive information and notices by email. To make such a request, you may do so my email or you may send a letter to us at the following address: Tumble, 45 Lansing Street, #1605, San Francisco, CA 94105. Class Action Waiver. YOU AND CLARIFIED INC. DBA TUMBLE AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. If for any reason a claim proceeds in court rather than in arbitration you and Clarified Inc. DBA Tumble each waive any right to a jury trial. You and Clarified Inc. DBA Tumble also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights. Agreement to Arbitrate. You and Clarified Inc. DBA Tumble(“Tumble”) each agree that any and all disputes or claims that have arisen or may arise between you and Tumble shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate. UNLESS BOTH YOU AND CLARIFIED INC. DBA TUMBLE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER CLARIFIED INC. DBA TUMBLE USERS. Arbitration Procedure. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org. A form for initiating arbitration proceedings is available on the AAA’s website at www.adr.org. The arbitrator will decide the substance of all claims in accordance with the laws of the State of California, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Clarified Inc. DBA Tumble users, but is bound by rulings in prior arbitrations involving the same Clarified Inc. DBA Tumble user to the extent required by applicable law. The arbitrator’s award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration will take place in Alameda County, California. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Clarified Inc. DBA Tumble will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this Agreement to Arbitrate. If the value of the relief sought is $10,000 or less, at your request, Clarified Inc. DBA Tumble will pay all filling, administration, and arbitrator fees associated with the arbitration. Any request for payment of fees by Clarified Inc. DBA Tumble should be submitted by mail to the AAA along with your Demand for Arbitration and Clarified Inc. DBA Tumble will make arrangements to pay all necessary fees directly to the AAA. If the value of the relief sought is more than $10,000 and you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Clarified Inc. DBA Tumble will pay as much of the filing, administration, and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Clarified Inc. DBA Tumble for all fees associated with the arbitration paid by Clarified Inc. DBA Tumble (“Tumble”) on your behalf that you otherwise would be obligated to pay under the AAA’s rules. Severability. With the exception of the provisions in the Class Action Waiver subsection of this section, if a court decides that any part of this Disputes section is invalid or unenforceable, the other parts of this section shall still apply. If a court decides that any of the provisions in the Class Action Waiver is invalid or unenforceable, then the entirety of this Agreement to Arbitrate shall be null and void. The remainder of the User Agreement, including all other provisions of this Section (Disputes with Clarified Inc. DBA Tumble), will continue to apply. Opt-Out Procedure. You can choose to reject this Agreement to Arbitrate (“opt out”) by mailing us a written opt-out notice (“Opt-Out Notice”). For new Tumble users, the Opt-Out Notice must be postmarked no later than 30 Days after the date you accept this Agreement for the first time. You must mail the Opt-Out Notice to Tumble, Attn: Legal Department, 45 Lansing Street, #1605, San Francisco, CA 94105. The Opt-Out Notice must state that you do not agree to this Agreement to Arbitrate and must include your name, address, phone number, and the email address(es) used to log in to the Tumble account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. If you opt out of the Agreement to Arbitrate, all other parts of the Agreement, including all other provisions of this Section (Disputes with Clarified Inc. DBA Tumble), will continue to apply. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us. If you agree to opt out of arbitration, you agree to settle all legal issues in the state and federal courts located in Alameda County, California.
18. TERM. The Agreement is effective upon the date you agree to it (by electronically indicating acceptance) and continues so long as you use the Service or until terminated by you or Clarified Inc. DBA Tumble.
19. FORCE MAJEURE. No party will be liable for delays in processing or other nonperformance caused by such events as fires, telecommunications failures, utility failures, power failures, equipment failures, labor strife, riots, war, terrorist attack, nonperformance of our vendors or suppliers, acts of God, or other causes over which the respective party has no reasonable control, except that nothing in this section will affect or excuse your liabilities and obligations under Section 10, including without limitation for Reversals, Chargebacks, Claims, fines, fees, refunds or unfulfilled products and services.