1. Introduction/ Consent to Terms/ Notice of Arbitration Provision
We reserve the right to deny or restrict your access to the Services if you do not comply with this Agreement at all times when using the Services. This Agreement shall apply regardless of the means by which you access the Services (e.g., through the URL address, electronic mail, or links from other websites).
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. MORE INFORMATION ABOUT ARBITRATION IS INCLUDED BELOW.
2. Rules for Using the Services. By using the Services, their features and submitting User Materials (as defined below), you agree that:
- Your use of the Services, including, without limitation, any of the elements or content, is solely for your own noncommercial use and benefit.
- You must be at least 18 years of age to submit any User Materials or personally-identifying information on or through the Services. If you are between the ages of 13 and 18, you may browse the Services with the consent of your parent or guardian, so long as you do not submit any User Materials. If you are under 13 years of age, please do not send any information about yourself, including your name, address or email address. If we discover that we have collected any personally-identifying information from a child under 13, we will remove that information from our database as soon as possible.
- You are solely responsible for any User Materials you submit. Tinkercast does not and cannot review all User Materials submitted by you and is not responsible for any User Materials that you submit on or through the Services. However, we have the right (but not the obligation) to review, screen, delete, edit or move any User Materials that we deem, in our sole discretion, to be in violation of this Agreement, the Services, or for any other reason, as determined in our sole discretion.
- You will not interfere with any other user’s use and enjoyment of the Services. You will not use the Services or the information contained therein in unsolicited or unauthorized advertising, promotional materials, junk, duplicates, spam, chain letters or any other forms of solicitation. In particular, you will not use any of our trademarks, trade names, service marks, copyrights, or logos in unsolicited mailings or spam material. You will not spam or send unsolicited mailings to any person or entity using the Services.
- You will not submit, post, upload, distribute, or otherwise make available any User Materials that contain, in Tinkercast’s opinion: (1) personal information about another person; (2) unlawful, harassing, libelous, defamatory, abusive, threatening, harmful, vulgar, obscene, indecent, profane, lewd, lascivious, filthy, excessively violent, offensive, or otherwise objectionable, inappropriate, or unlawful material; (3) material that could harm minors; (4) any material that infringes any intellectual property or other proprietary rights of any person or entity, or any right of any person or entity; or (5) any information intended to promote and/or generate revenue for any third party business activity.
- You will not delete any legal notices, proprietary notices (including trademark or copyright symbols), or disclaimers, or modify any logos that you do not own or have written permission to modify.
- You will not impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity, including, but not limited to, by using another person’s username, password, name, likeness, voice, or photograph. You will not submit any personal information to the Services, about yourself or others, that is not accurate and truthful.
- If the Services include features that allow you to communicate with others and you use said features, you will, in Tinkercast’s opinion: (i) use such features solely to inform others about content available on the Services; (ii) not upload or send any message that is unlawful, harassing, libelous, slanderous, defamatory, abusive, threatening, harmful, vulgar, obscene, pornographic, hateful, indecent, profane, lewd, lascivious, filthy, excessively violent, offensive, insulting, misleading, deceptive, or racially, ethnically, or otherwise objectionable; (iii) not upload or send any commercial, promotional, or solicitation information; and (iv) remain friendly and treat all recipients with respect. You will immediately cease using the Service features to communicate with recipients who have requested not to receive communications from you.
- You will not use the Services for any harmful or unlawful purpose, including engaging in (or attempting to engage in) any criminal activity including, but not limited to, child pornography, stalking, sexual assault, fraud, harassment, uploading, posting, emailing, transmitting or otherwise making available any content or initiating communications that include information that you have no right to disclose or make available under any law or under contractual or fiduciary relationships (such as insider information, or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements), and conspiracy to commit any criminal activity. You agree that your use of the Services will not harm minors in any way.
- You will not knowingly submit, post, upload, distribute, or otherwise make available any software or other material that contains any virus, trap door, back door, worm, Trojan horse or other harmful computer code, files, scripts, agents, programs, adware, device or other features that may access, alter, delete, damage or disable any hardware, software, information or other property of Tinkercast.
- You will not interfere with or disrupt the integrity or performance of the Services, any portion or contents thereof, or related systems or networks, or use the Services in any way that degrades their reliability, speed or operation, or their underlying hardware or software. In addition, you will not attempt to gain unauthorized access to Tinkercast’s computer systems, the Services or related systems or networks.
- You further agree to the representations, warranties, and indemnification obligations, set forth in this Agreement.
- If you do not agree with the terms of this Agreement, you will not use the Services.
Tinkercast cannot and does not guarantee that other Service users will comply with the rules above. We reserve the right to change Services or delete content or features in the Services at any time, in any way, for any or no reason.
You may copy, download one copy on a single device, and print a limited amount of content for your personal, noncommercial use only, provided that (a) you include without modification all copyright and other proprietary notices contained in the content, (b) you do not modify the content, (c) you do not use the content in a manner that suggests Tinkercast promotes or endorses your, or any third parties, causes, ideas, products, sites, applications, platforms or services, (d) you do not use the content in any way that is unlawful or harmful, (e) you do not scrape any content to replicate or republish the content, and (f) you do not use the content to build or train large language models, machine learning tools, or artificial intelligence (AI) systems. Subject to the conditions in the preceding sentence, you may use widgets and tools on the Services that allow selected User Materials to appear on your personal, noncommercial blog, site, application, platform or service.
4. Digital Millennium Copyright Act (DMCA) Notices/ Copyright Agent. Tinkercast respects the intellectual property rights of others. To the best of our knowledge, the content that appears on the Online Services does not infringe the copyrights of others. If you believe that your work has been copied in a way that constitutes copyright infringement by any content or material on the Services, please provide the following information in writing to our Copyright Agent (see 17 U.S.C. § 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the copyright owner.
- A description of the material that you claim to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Tinkercast to locate the material, like the site URL of the material.
- Information so that we can contact you, such as address, telephone number and electronic mail address.
- A statement that you (the complaining party) 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.
- A statement that the information in the notification is accurate and, under penalty of perjury, that you are the copyright owner or are authorized to act on behalf of the owner of a copyright that is allegedly infringed.
If you believe that Tinkercast improperly removed or disabled content or materials you posted, uploaded or submitted to the Services, please provide the following Counter-Notification to our Copyright Agent (see 17 U.S.C. § 512(g) for further detail):
- Your physical or electronic signature.
- A description of the materials that have been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
- A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
- Your name, address and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which the address is located, and that you will accept service of process from the person who provided notification of the alleged infringement.
Tinkercast’s Copyright Agent can be reached as follows:
Beverly J. Davis
Davis Law, PLLC
224 W. Campbell Rd. #224
Richardson, TX 75080-3512
Phone: (202) 441-8278
Only DMCA notices should be sent to this address. Please send other comments or questions to email@example.com.
5. Trademarks. Trademarks, trade names, service marks, logos, program names, and other names of or belonging to Tinkercast, including without limitation Tinkercast®, Wow in the World®, and Tinkercast.com are protected from reproduction, imitation, dilution and confusing or misleading uses under national and international trademark laws, and all rights in these marks are reserved to Tinkercast. You may not use these marks without Tinkercast’s express prior written consent, unless otherwise stated herein. All other trademarks, trade names, service marks, copyrights, and logos appearing with or on the Services are the property of their respective owners.
6. Permissions. To request permission to use Tinkercast’s content, trademarks or other copyrighted material, please contact us at firstname.lastname@example.org.
7. User Materials. Users of the Services may upload, transmit, post or submit messages, recommendations, podcast ideas, images, contest or sweepstake submissions, and other information (“User Materials”) on or through the Contact Us page, to Tinkercast’s social media accounts on various third-party social media platforms, and through other third-party platforms. You acknowledge that such User Materials may be routed through Tinkercast’s servers, servers of one or more third parties, and the Internet and be viewed by our staff and the general public. You also acknowledge that the Services are for public, not private communications. We reserve the right to screen, refuse to post, remove or edit User Materials.
You retain ownership rights in the User Materials that you submit on or through the Services. However, by uploading and/or sharing any User Materials, you hereby acknowledge that you have received good, valuable and sufficient consideration for such User Materials, and grant Tinkercast, other Content Providers and their respective licensees a non-exclusive, perpetual, worldwide, transferable, royalty-free license to use, modify, reproduce/copy, transmit, publicly perform, distribute, broadcast, advertise, promote, publicly display, create derivative works of, host, index, cache, tag, encode, and/or otherwise adapt and use the User Materials in any manner, in any and all languages, formats and media whether now known or later devised or created. You also grant to Tinkercast, its Content Providers and licensees the irrevocable, perpetual, worldwide and royalty-free right throughout the world and in any and all media now known or hereafter created to contact you in connection with your User Materials and to use, exhibit, reproduce, distribute and publicly display your name, likeness, voice and other information that you have provided in connection with the User Materials that you submit.
You hereby waive and relinquish any right that you may have to inspect, examine or approve any uses of the User Materials by Tinkercast, its Content Providers, and/or licensees in connection with the Services and the advertising or promotion thereof. You further waive and relinquish any and all claims that you may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of “droit moral” against Tinkercast, its Content Providers, and/or licensees with respect to the results and proceeds of the User Materials.
Tinkercast does not endorse any User Materials that are submitted, shared, or uploaded on or to the Services or any opinion, recommendation, or advice expressed therein, and expressly disclaims any and all liability in connection with such User Materials. User Materials that are found to violate the terms and conditions of this Agreement or that are being used for non-personal, commercial purposes, including but not limited to links to any third-party websites, may be removed without prior notification. If Tinkercast exercises any such rights, the rights given to Tinkercast to any User Materials already supplied to us shall survive termination.
8. Podcasts. Tinkercast provides podcasts consisting of audio content that is provided using an RSS feed and associated file so that the file may be downloaded and played from a user’s device. Podcasts are available only for personal, noncommercial use. You may download, copy and/or transfer a podcast to a device only for your personal, noncommercial use, and you also may link to podcasts from your site, application, platform or service subject to the following restrictions:
a. you only use the content for personal noncommercial use or for noncommercial online use by a 501(c)(3) nonprofit corporation (which is not a news, broadcast, or multimedia organization);
b. your use is for non-promotional, internet-based purposes only;
c. you do not use the content in any way that is unlawful or harmful;
d. you provide attribution to Tinkercast or its distributor as the content source by including “Tinkercast” or the name of the distributor in text connected with the content, but not in the title of any publicly available application, and provide a link back to the content’s source site;
e. your use or display of the content does not suggest that Tinkercast, its Content Providers, distributors, or other third-party partners promote or endorse you, any third party, or the causes, ideas, sites, applications, platforms, products, or services that are provided by or supported by you or any third party;
f. all links to the podcast redirect the user to the Services or Tinkercast’s distributors’ sites, applications, platforms or services when the user clicks on them;
g. you do not add, delete, modify, copy, translate, create a derivative work of, sell, distribute, or sublicense any content (e.g., audio, video, text, links) from us;
h. you do not use the content in any way that changes or distorts its fundamental meaning;
i. all audio must be streamed from the originating servers through direct links that redirect the user to Tinkercast’s or its distributors’ sites, applications, platforms, or services;
j. Tinkercast and its distributors have the right to withdraw any and all content at any time in their discretion; and
k. upon the request of Tinkercast, you will promptly cease all use of, and remove from your sites, applications, platforms, and services, any and all uses of the Tinkercast content.
You are solely responsible for the activity that occurs on your Account, and for keeping your Account password secure. You may never use another person’s user account or registration information for the Services without permission. You must notify us immediately of any change in your eligibility to use the Services, breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account. We will not be liable for any loss or damage arising from your failure to comply with this section of the Agreement. You shall have the ability to delete your Account, either directly or through a request made to one of our employees or affiliates.
10. Teacher and Entity Accounts. Tinkercast offers Teacher Accounts on the Services for educators and instructors (referred to individually with other users of the Services as “you” “your” or as “Teacher” and collectively “Teachers”) teaching a class in which the Services are part of the curriculum and/or receiving the Services on behalf of an individual school or school district (each a “School” or “School District,” but collectively referred to as the “Schools”). Authority to create a Teacher Account shall be determined by the appropriate individual(s) at your School or School District. By accessing or using the Services in any way, you represent that you have the authority and permission to enter into this Agreement on your own behalf and/or to use the Services as contemplated hereunder, including without limitation any consent necessary to use the Services in connection with any Student with whom you use the Services.
If you are using or accessing the Services on behalf of a School or School District (an “Entity Account”), in addition to being an eligible individual user (as set forth above), you must also have the authority and permission to enter into this Agreement on behalf of the School or School District and to use the Services on such School or School District’s behalf as contemplated hereunder, including without limitation any consent necessary to use the Services in connection with any particular Students. In such cases, the term “you” as used herein shall also refer to such School or School District. Your School will also be responsible for any activities, including any violation of this Agreement, that occur under your Account. For purposes of this Agreement, the term School District includes public school districts, and independent, private, and charter school systems that include more than one school.
In the event that you are no longer (a) employed by your School (or another School through which you receive Services) or (b) otherwise authorized to view or use a Teacher Account or Entity Account, you (i) must notify Tinkercast immediately of such change and (ii) are not permitted to continue to view or use your account.
11. Membership Programs. You may elect to become a member of a Tinkercast Membership Program (e.g.. World Organization of Wowzers”) by purchasing a membership through the Services. Unless otherwise stated, each membership runs for a one (1) year term and automatically renews for successive one-year terms unless you cancel your membership prior to the end of the then current membership term.
Membership fees are earned in full upon receipt and are non-refundable. By purchasing a membership and entering and submitting your credit card or debit card information through the Website or other online services, you agree and authorize Tinkercast or its third-party contractor or partner to immediately charge your credit card or debit card in an amount equal to the then current rate for the membership level that you have selected. You also authorize Tinkercast or its third-party contractor or partner to charge the then prevailing membership fee amount to your credit card or debit card (or other approved facility) again during each subsequent membership period.
TO AVOID AUTOMATIC RENEWAL OF YOUR MEMBERSHIP, YOU MUST CANCEL YOUR MEMBERSHIP AT LEAST ONE (1) DAY PRIOR TO THE END OF YOUR CURRENT MEMBERSHIP TERM BY SELECTING CANCEL UNDER “MY ACCOUNT.” IF YOU FAIL TO CANCEL YOUR MEMBERSHIP, IT WILL AUTOMATICALLY RENEW FOR ANOTHER ONE-YEAR TERM. IF YOU HAVE QUESTIONS REGARDING YOUR MEMBERSHIP PLEASE CONTACT US AT HELLO@TINKERCAST.COM
We may, from time to time, permit users of the Services to become members of a Membership Program without going through the regular channels. We reserve the right to change membership criteria and to charge, modify or waive fees to users in order to become members. We may, but are not required to, provide certain exclusive and/or limited content, features or services to members of Membership Programs.
12. Other Purchases. You may purchase merchandise and other items offered through the Services. Once you enter and submit your credit card or debit card information to purchase your membership, merchandise or other items, you agree and authorize Tinkercast or its third-party contractor or partner to immediately charge your credit card or debit card (or other approved facility) in an amount equal to the total purchase price indicated in your online cart.
13. Student Data
General. A “Student” is a child who is enrolled in (a) the class of a Teacher or any Schools that use the TinkerClass feature of the Services, or (b) the class of a Teacher who does not use the TinkerClass feature of the Services but chooses to submit User Materials created by or including children that are enrolled in such Teacher’s class. “Student Data” includes all data that personally identifies a Student, such as name, address, image (e.g. photograph or screenshot of a student), voice, likeness (e.g., a visual image of any kind (photo, drawing, caricature, computer avatar) that evokes the student’s identity in the eyes of the public) or other non-public information about a Student (e.g., grades), but does not include De-Identified Data (as defined below). Tinkercast will only collect and use Student Data as set forth in this Agreement, when necessary to fulfill our duties, and to provide and improve the Services.
Disclosure of Student Data by Schools and Teachers. Schools and Teachers using the Services are solely responsible for ensuring that you and your School are compliant with all applicable laws and regulations related to your disclosure of Student Data to Tinkercast in connection with the Services, including, but not limited to the Family Educational Rights and Privacy Act (“FERPA”). Without limiting the generality of the foregoing, for all Student Data disclosed to Tinkercast, you represent and warrant, to the extent required by applicable law such as FERPA, that your School has (a) notified such Students’ parents or legal guardians of your use of third party services, including ours, and the potential disclosure of Student Data in connection with such use and (b) obtained the appropriate consent(s) from the parents or legal guardians of such Students. If such Student is 18 years old or older, the notice and consent requirements of (a) and (b) shall apply to the Student instead of such Student’s parent or legal guardian, unless the Student lacks the legal capacity to provide such consent.
License to Use Student Data. Student Data made available to Tinkercast in any manner, including on or through the Services, is User Material that is subject to the terms and conditions set forth in Section 6 of this Agreement, unless otherwise prohibited by law.
Storage and Processing of Data. Tinkercast will store and process all Student Data in accordance with standard practices in the podcast industry. Tinkercast will promptly notify the relevant Schools of any incident involving a breach of security, privacy, or personal information involving such Schools’ Teachers or Students.
14. Protection of Student Data.
School Requests. Tinkercast will make Student Data available upon a verified request by the School or Teacher who provided such Student Data or who would otherwise have verified authority to receive such Student Data.
Return/Destruction of Student Data. Upon request by the School or Teacher, if legally permitted, Tinkercast will destroy and request that subcontractors and/or agents destroy Student Data in its/their possession when such Student Data is no longer needed by Tinkercast
Subcontractors. Tinkercast may rely on one or more subcontractors to perform the Services. All subcontractors and successor entities of Tinkercast will be subject to the protections for Student Data set forth in this Agreement.
15. Links to Third-Party Sites, Applications, Platforms and Services. The Services may contain hyperlinks to external locations (e.g., other websites) controlled by third parties, including social networking sites. These links are provided solely for your convenience and do not imply an endorsement by Tinkercast or that any affiliation exists between Tinkercast and the linked website. You agree that Tinkercast is not responsible for the availability of these external locations, or other content including, without limitation, solicitations thereon or products or services made available thereby. Tinkercast has not necessarily reviewed, and does not necessarily endorse or verify, content at linked websites, and is not responsible for such content or for your use of such content. You acknowledge that some external locations may contain material or communications which are unedited, untrue, or illegal in some jurisdictions or that may be offensive. You agree to access external locations at your own risk and not to permit minors to have access to inappropriate material. You agree that Tinkercast shall not be held responsible or liable, directly or indirectly, for any loss or damage caused or alleged to have been caused in any way whatsoever related to any such external location. Any concerns regarding any external location should be directed to its respective website administrator, system operator, or web master.
17. Disclaimers. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, CONSTRUCTIVE, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY OTHER IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, DEALING AND/OR TRADE USAGE. TINKERCAST DOES NOT GUARANTEE OR WARRANT CONTINUOUS, UNINTERRUPTED OR ERROR-FREE ACCESS OR USAGE, OR THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES SO THE FOREGOING DISCLAIMER MAY NOT BE APPLICABLE IN FULL. THIS SECTION WILL BE ALLOWABLE TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW.
TINKERCAST DOES NOT MAKE ANY WARRANTY, WHETHER EXPRESS OR IMPLIED, OR MAKE ANY REPRESENTATIONS REGARDING ANY CONTENT, INFORMATION, SERVICES, OR PRODUCTS OBTAINED OR PROVIDED THROUGH OR IN CONJUNCTION WITH THE SERVICES. NEITHER TINKERCAST NOR ITS CONTENT PROVIDERS, LICENSEES NOR OTHER CONTENT PARTNERS MAKE ANY GUARANTEE REGARDING THE ACCURACY, CORRECTNESS, TIMELINESS, SEQUENCE, RELIABILITY, OR COMPLETENESS OF ANY INFORMATION OR CONTENT PROVIDED BY THE SERVICES. ADDITIONALLY, THERE ARE NO WARRANTIES AS TO THE RESULTS OBTAINED FROM THE USE OF THE INFORMATION. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DOWNLOADED AT THE USER’S OWN RISK. THE USER WILL BE SOLELY RESPONSIBLE FOR, AND ASSUMES THE ENTIRE COST OF, ALL NECESSARY SERVICING, REPAIR, OR CORRECTION IN THE EVENT OF ANY DAMAGE OR LOSS DUE TO CONTENT, DOWNLOADS OR ANY OTHER MATERIAL OR INFORMATION THE USER OBTAINS FROM THE SERVICES. ANY MATERIAL UPLOADED OR OTHERWISE SUBMITTED THROUGH THE USE OF SERVICES IS UPLOADED AT THE USER’S OWN RISK. THE USER WILL BE SOLELY RESPONSIBLE FOR, AND ASSUMES THE ENTIRE COST OF, ALL NECESSARY SERVICING, REPAIR, OR CORRECTION IN THE EVENT OF ANY DAMAGE OR LOSS DUE TO UPLOADING THROUGH THE USE OF THE SERVICES.
18. Indemnification You agree to indemnify and hold harmless Tinkercast, its Content Providers and their respective officers, directors, employees, partners, and licensees from any and all claims, liabilities, costs or expenses, including reasonable attorneys’ fees, and any direct, indirect, incidental, special, consequential or exemplary damages arising from (1) your breach of any representations and warranties found in this Agreement, (2) your use of the Services, (3) the User Materials you submit on or through the Services, or (4) Tinkercast’s publication, distribution or use of such User Materials, or the authorized publication, distribution or use of your User Materials by Tinkercast, its Content Providers, licensees, or users of the Services.
19. International User Notice. The Services are controlled and operated by Tinkercast from within the United States of America and is intended for use only by residents of the United States. We make no representations or warranties that the content or materials of the Services are appropriate or lawful in any foreign countries, or that any items offered for sale through links on the Services will be available outside of the United States. Those who choose to access the Services from countries other than the United States do so on their own initiative and are responsible for compliance with their local laws, if and to the extent local laws are applicable. You may not use, export or re-export any content downloaded from the Services or any copy or adaptation of such content, in violation of any applicable laws or regulations, including without limitation United States export laws and regulations.
20. Force Majeure. We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
21. Termination. This Agreement is effective until terminated. We may terminate this Agreement or suspend your access to and use of all or any part of the Services, at any time, for any reason (including if we believe that you have violated or acted inconsistently with the letter or spirit of this Agreement), with or without notice, effective immediately. If you wish to terminate your Account, you may do so by following the instructions on the Site or through the Services. Any fees paid hereunder are non-refundable. All provisions of this Agreement, which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
22. Choice of Law. This Agreement is governed by and construed under the laws of the State of New Jersey, without regard to its choice of law rules, and the laws of the United States. To the extent permissible by law, any disputes arising or relating to the Services or this Agreement are subject to the dispute resolution and arbitration rules set forth in Section 23 below. Disputes that are not subject to the dispute resolution and arbitration provisions shall be subject to the exclusive jurisdiction and venue of the federal, state, or local courts located in Essex County, New Jersey, and you hereby consent to personal jurisdiction and venue in Essex County, New Jersey.
23. Dispute Resolution and Arbitration. These dispute resolution and arbitration provisions apply to users in the United States only. You and Tinkercast agree that any dispute, claim or controversy arising in connection with or relating in any way to this Agreement or to your relationship with Tinkercast as a user of the Services (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and whether the claims arise during or after the termination of this Agreement) will be determined by mandatory binding individual (not class) arbitration. You and Tinkercast further agree that the arbitrator shall have the exclusive power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of this provision or to the arbitrability of any claim or counterclaim. Arbitration is more informal than a lawsuit in court. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. There may be more limited discovery than in court. The arbitrator must follow this agreement and can award the same damages and relief as a court (including reasonable outside attorneys’ fees), except that the arbitrator may not award any relief, including declaratory or injunctive relief, benefiting anyone but the parties to the arbitration. This arbitration provision will survive termination of this Agreement.
Exceptions. Notwithstanding the Dispute Resolution and Arbitration provisions above, you and Tinkercast both agree that nothing in this Arbitration Agreement will be deemed to waive, preclude, or otherwise limit either of our rights, at any time, to (a) bring an individual action in a U.S. small claims court or (b) bring an individual action seeking only temporary or preliminary individualized injunctive relief in a court of law, pending a final ruling from the arbitrator. In addition, this Section 23 doesn’t stop you or Tinkercast from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against Tinkercast on your behalf or against you on Tinkercast’s behalf.
No Class or Representative Proceedings/ Class Action Waiver. YOU AND TINKERCAST AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and
Tinkercast agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
Arbitration rules. Either you or Tinkercast may start arbitration proceedings. Any arbitration between you and Tinkercast will take place under the Consumer Arbitration Rules of the American Arbitration Association (“AAA”) then in force (the “AAA Rules”), as modified by this Arbitration Agreement. You and Tinkercast agree that the Federal Arbitration Act applies and governs the interpretation and enforcement of this provision (despite the choice of law provision above). The AAA Rules, as well as instructions on how to file an arbitration proceeding with the AAA, appear at adr.org, or you may call the AAA at 1-800-778-7879. Unless otherwise agreed in writing by the parties, any arbitration hearings will take place in Essex County, New Jersey; provided that if the claim is for $25,000 or less, the dispute will be resolved by submission of documents, unless you or Tinkercast requests an oral hearing, or the arbitrator determines that an oral hearing is necessary. You and Tinkercast shall each bear your own costs of arbitration or mediation, unless otherwise agreed in writing. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as they payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
Notice/ Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified or Express U. S. mail or by a reputable overnight carrier like Federal Express or UPS with a signature required, or if we do not have a physical address on file for you, by electronic mail to the last known e-mail address on file (“Notice“). Tinkercast’s address for Notice is: Tinkercast, LLC, Attn: Chief Operations Officer, 41 Watchung Plaza, Suite 312, Montclair, NJ 07042, USA. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand“). You agree that you and Tinkercast will use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Tinkercast may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Tinkercast shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. All documents and information disclosed in the course of the arbitration shall be kept strictly confidential by you and/or the recipient and shall not be used by you or the recipient (if someone other than you) for any purpose other than arbitration or the enforcement of the arbitrator’s decision and award and shall not be disclosed except in confidence to persons who have a need to know for such purposes or as required by applicable law.
Enforceability. If the Dispute Resolution and Arbitration provision is invalidated in whole or in part, the parties agree that the exclusive jurisdiction and venue described in Section 22 (Choice of Law) shall govern any claim in court arising out of or related to this Agreement.
24. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES. YOU AGREE THAT TINKERCAST HAS NO OBLIGATION OR LIABILITY ARISING FROM OR RELATED TO THIRD PARTY SERVICES MADE AVAILABLE THROUGH OR IN CONNECTION WITH THE SERVICES.
IN NO EVENT WILL TINKERCAST, ITS OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS, CONTENT PROVIDERS OR LICENSEES BE LIABLE (A) FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES, (B) RELATING TO ANY CONTENT ON THE SERVICES, (C) FOR ANY LOSS OF USE, DATA, BUSINESS OR PROFITS (WHETHER DIRECT OR INDIRECT), IN ALL CASES ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES OR THIRD PARTY SERVICES, REGARDLESS OF LEGAL THEORY, (D) IN CONNECTION WITH ANY THIRD-PARTY CONTENT OR MATERIALS (INCLUDING USER MATERIALS) OR THE DEFAMATORY, INFRINGING, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY, WITHOUT REGARD TO WHETHER TINKERCAST HAS BEEN WARNED OF THE POSSIBILITY OF THOSE DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE, OR (E) AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICES MORE THAN THE AMOUNTS PAID. IN NO EVENT WILL TINKERCAST, ITS OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS, CONTENT PROVIDERS OR LICENSEES BE LIABLE FOR MORE THAN THE GREATER OF (I) FIFTY UNITED STATES DOLLARS ($50) OR (II) THE AMOUNT ACTUALLY PAID BY YOU TO TINKERCAST HEREUNDER IN THE 12 MONTHS PRECEDING THE DATE YOU FIRST BRING A CLAIM. TINKERCAST ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION OR FAILURE TO STORE ANY CONTENT OR USER COMMUNICATIONS. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TINKERCAST AND YOU.
NOTHING IN THIS SECTION 24 REMOVES OR LIMITS TINKERCAST’S LIABILITY FOR ANY STATUTORY CONSUMER RIGHTS CLAIMS OR DAMAGAES ASSOCIATED WITH FRAUD, FRAUDULENT MISREPRESENTATION, DEATH OR PERSONAL INJURY OR RESULTING FROM OR CAUSED BY TINKERCAST’S NEGLIGENCE, AND, IF REQUIRED BY APPLICABLE LAW, GROSS NEGLIGENCE, BECAUSE SOME JURISDICTIONS DOE NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, TINKERCAST’S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. ANY SUCH CLAIM AGAINST TINKERCASTSHALL BE LIMITED TO THE AMOUNT YOU PAID FOR SERVICES IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM WAS FILED.
YOU AGREE THAT ANY CLAIM AGAINST TINKERCAST MUST BE COMMENCED (BY FILING A DEMAND FOR ARBITRATION UNDER SECTION 23 OR FILING AN INDIVIDUAL ACTION UNDER SECTION 22 WITHIN ONE (1) YEAR AFTER THE DATE THE PARTY ASSERTING THE CLAIM FIRST KNOWS OR REASONABLY SHOULD HAVE KNOWN ABOUT THE ACT, OMISSION OR DEFAULT GIVING RISE TO THE CLAIM; AND THERE SHALL BE NO RIGHT TO ANY REMEDY FOR ANY CLAIM NOT ASSERTED WITHIN THAT TIME PERIOD. IF APPLICABLE LAW PROHIBITS A ONE YEAR LIMITATION PERIOD FOR ASSERTING CLAIMS, ANY CLAIM MUST BE ASSERTED WITHIN THE SHORTEST TIME PERIOD PERMITTED BY APPLICABLE LAW.
25. New Jersey Consumers. If you are a consumer residing in New Jersey, the following provisions of this Agreement do not apply to you (and do not limit any rights that you may have) to the extent that they are unenforceable under New Jersey law: (a) the disclaimer of liability for any indirect, incidental, consequential, special, exemplary or punitive damages of any kind (for example, to the extent unenforceable under the New Jersey Punitive Damages Act, New Jersey Products Liability Act, New Jersey Uniform Commercial Code and New Jersey Consumer Fraud Act); (b) the limitations of liability for lost profits or loss or misuse of any data (for example, to the extent unenforceable under the New Jersey Identity Theft Protection Act and New Jersey Consumer Fraud Act); (c) application of the limitations of liability to the recovery of damages that arise under contract and tort, including negligence, strict liability or any other theory (for example, to the extent such damages are recoverable by a consumer under New Jersey law, including the New Jersey Products Liability Act); (iv) the requirement that you indemnify Tinkercast and the Indemnified Parties (for example, to the extent the scope of such indemnity is prohibited under New Jersey law); (v) the limitation on your time for filing a claim against Tinkercast hereunder, to the extent that such limitation in connection with a claim is shorter than the applicable limitation under New Jersey law.
26. Modification. A modification or waiver of a part of this Agreement shall not constitute a waiver or modification of any other portion hereof. If for any reason any provision of this Agreement is unenforceable, the affected provision will be enforced to the maximum extent permissible, and the remainder of the provisions this Agreement will continue in full force and effect.
27. Acceptance. Your use of the Services constitutes acceptance of this Agreement. You hereby waive any and all defenses you may have based on the electronic form of this Agreement and lack of signing or other form of electronic execution by the parties hereto. You agree to abide by the terms and conditions of this Agreement and any additional terms, conditions, rules, or procedures imposed by Tinkercast or its Content Providers and licensees in connection with content, software, or services available on, through or in connection with the Services.
28. Assignment. This Agreement is personal to you and is not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder, in whole or in part, without your consent and without notice to you.
29. Waiver. Tinkercast’s failure to enforce strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such a provision or any other provision of this Agreement, nor will any delay or omission on the part of Tinkercast to exercise or take advantage of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
30. Headings. Use of headings is for convenience of reference only and shall not modify or affect the interpretation or construction of this Agreement, or any provision hereof.
Effective as of October 16, 2023