Terms of Service
EFFECTIVE DATE: September 27th, 2018
These Terms of Service (“Terms”) are an agreement between you and PeerStream, Inc. a company registered in the United States and having its office at 122 E. 42nd Street, Suite 2600, New York, NY 10168 (“PeerStream”, “Company”, “us”, “our” or “we”) for your use of the FirstMet® branded website, mobile website, and application (“Services”). Please also read these introductory pages and our full Terms of Service below carefully. Any PeerStream owned services linked to other terms of service are governed by that service’s terms.
If you have any questions about the Terms, you may write to us at PeerStream, Inc., 122 E. 42nd Street, Suite 2600, New York, NY 10168 or send us an email to: firstname.lastname@example.org.
If you are a user in the EU, please contact us by email.
If we need to contact you, we will write to you at the email address you provided when you registered with us, or any other details you have provided to us. When we use the words “writing” or “write” in these terms, this includes emails.
Terms of Service Highlights
Acceptance Of These Terms
Each time you use the Services, you agree to these Terms. More Info.
Binding Arbitration of Disputes; No Class Relief
Any disputes under these Terms will be resolved on an individual basis through binding arbitration; you waive participation in class actions. More Info. [This section does not apply to users in the EU. If you are a user in the EU, you can exercise your rights under the local laws of your country of residence.]
Your Interactions With Other Users
You are entirely responsible for your interactions with other users. You therefore accept responsibility for all acts done using your account, and may be held liable for losses incurred by us or any other user of the Services caused by someone else using your account. More Info. Please read our Safety Tips before using our Services. More Info.
Premium Service Subscription
You agree to pay all fees and other charges at the prices then in effect for your use of the Premium Services selected (prices in the EU will include all applicable taxes and non-optional charges), and you authorize us to charge your payment provider for the Services, including any recurring fees, using your billing information. Subscription fees automatically renew at the then current rate until cancelled by you. If you are a user in the EU, any increase in the Subscription fees will be notified to you in advance of the renewal term and you will have the option to cancel your Premium Service. More info
YOU HAVE THE RIGHT TO CANCEL YOUR MONTH-TO-MONTH OR PREPAID RECURRING MEMBERSHIP AND OBTAIN A FULL REFUND WITHIN 3 BUSINESS DAYS OF INITIAL PURCHASE. More Info THIS PARAGRAPH DOES NOT APPLY TO USERS IN THE EU.
IF YOU ARE A USER IN THE EU, YOU HAVE THE RIGHT TO CANCEL YOUR PREMIUM SERVICE AND OBTAIN A REFUND WITHIN 14 DAYS OF YOUR FIRST SUBSCRIPTION TERM. More Info
Services are Provided “As Is”
We provide the Services “As Is” and we make no representations for quality, effectiveness and availability of the Services. More Info [This paragraph does not apply to users in the EU.]
Limitation of Liability
Our liability to you is limited. More Info.
EFFECTIVE DATE: August 27th, 2018
Binding Terms. Each time you use our Services, you signify that you have read, understand and agree to these Terms, our Safety Tips and any other terms disclosed to you in connection with our Services.
Updates to Terms. We reserve the right to update or change these Terms at any time by posting the most current version of the Terms with a new Effective Date and providing you with a copy the current Terms. All changes to the Terms take effect on the new Effective Date. Your continued access or use of the Services after we post and notify you of any changes to the Terms indicates your agreement to all changes.
Electronic Communications. By accessing or using the Services, you consent to having these Terms provided to you in electronic form and that all agreements, notices, disclosures, and other communications we provide to you electronically are “written notice”.
Eligibility. You must be at least 18 years old to use the Services.
If you create an account (references to “account” and “membership” are used interchangeably in these Terms) you represent and warrant that you have never been convicted of a felony and are not required to register as a sex offender with any government entity. [This representation and warranty does not apply to users in the EU.]
The Services are void where prohibited or restricted. [This limitation does not apply to users in the EU.]
2. HOW TO ACCESS AND USE THE SERVICE
Our basic Services are available to you without charge (including the download of our mobile app with our basic mobile app features) via our websites located at https://www.firstmet.com and https://m.firstmet.com or our mobile apps, which can be downloaded via the Apple App Store or the Google Play Store directly.
REGISTERING FOR FREE. You can become a member of FirstMet at no cost by downloading the applicable Service and setting up an account by logging in through Facebook or by providing your email and password on the Service’s web or mobile site.
As a free user of our standard FirstMet Services, you can create a profile, upload photos and/or choose photos from Facebook albums, browse other users, click “Yes” on users, search by location, age and interest, see who likes you, and read messages from premium users and respond for free.
In order to access additional features and services, including the ability to have unlimited custom communication with members, you must become a paying subscriber to our Premium Service (defined below).
You may be given the option of automatically sharing your FirstMet profile, data and photos on the 50more Service and vice versa. Note that in order to have a premium experience on both Services you must be a Premium subscriber to each.
FirstMet has optional paid subscription plans on the basis of a 30, 90 or 180 day or annual subscription (“Premium Service”). Only members who have paid subscriptions can access all of the pay features of the applicable Service. To receive the additional benefits of Premium Service, go to the Profile button on the top right corner of the website and click on “Upgrade.” Please refer to applicable Premium Service offer copy for a description of the subscription benefit plans and prices.
Once you have clicked on “Upgrade”, click on the items that you wish to buy to add them to your shopping cart. After you have finished shopping, click on “Checkout” and you will be asked to log in or create a personal account before providing additional details that we need to satisfy your order. Your order will be placed when you click on the button marked “Confirm and Pay”. All purchases and payments are made via our website or if on our iOS app, then via the Apple app store.
Our acceptance of your order will take place when we email you with an acknowledgment that it has been received and will provide you with an order number. Once we accept your order in full or in part, it creates a legally binding contract between you and us which will be subject to these Terms. If you need to contact us about your order, it is helpful if you can give us your order number.
If we are unable to accept your order in full or part, we will inform you of this. For example, this might be because the Premium Service is not currently available or because we have identified an error in your order or payment information.
Creating an Account through Facebook. If you choose to use your Facebook login to create your Profile on the applicable Service and provide your permission, you authorize us to access your Facebook account for the purpose of logging in and easily creating your profile by adding information, such as your location and age. You are solely responsible for complying with Facebook’s terms and conditions of use. We are not responsible for your inability to access the Services through Facebook if your account on Facebook is suspended, blocked, closed or terminated. Suspension or termination of the Services does not affect your status on Facebook.
Username and Password. You will be asked to choose a password and a username for your account. You may create only one account and unique profile for each Service.
Security of Username and Password. You are responsible for maintaining the confidentiality of your password and all activities that occur under your account. We will not be liable for any loss as a result of someone else using your password or account. You agree to notify PeerStream immediately of any unauthorized use or theft of your account or any other breach of security (and to provide properly documented evidence as reasonably requested by PeerStream). You may not use anyone else’s account at any time.
FIRSTMET PREMIUM SERVICE SUBSCRIPTIONS; FEES AND BILLING
SUBSCRIPTION FEES ARE NON-TRANSFERABLE AND NON-REFUNDABLE (except in certain circumstances if you are a user in the EU).
Subscription Fees. If you sign up for our Premium Service, PeerStream will bill you the then current rate for the selected period (e.g. 30, 90 or 180 day or annual term) (“Subscription Term”) and will bill you the applicable Subscription Term rate (“Subscription Fee”) using the billing information you provided (“Billing Information”). You agree to pay to PeerStream via the payment method indicated in your Billing Information all Subscription Fees and other charges at the prices then in effect for the Subscription Term selected, including any applicable taxes (prices in the EU will include all applicable taxes and non-optional charges), and you authorize PeerStream to charge your payment provider (your “Payment Method”) for the Premium Service, including the recurring Subscription Fees for the Subscription Term. We accept payment through VISA, Visa Electron, MasterCard, American Express, and Diners Club, credit/debit cards and via PayPal.
Automatic Renewal. PeerStream automatically renews each paid subscription for the applicable PeerStream Service on the date the subscription expires unless you cancel. If you do not wish your account to renew automatically, please follow the directions set out in To Change or Cancel Your Subscription below.
If you are a user in the EU, at least 10 working days before the end of the term of your Subscription Term, we will email you to notify you that your Premium Service is due for automatic renewal for an additional term of the same length. In these email communications, we will provide details of renewed Premium Service, the renewal Subscription Term, Subscription Fees, when payment will be taken, how you can notify us that you do not want to renew your Premium Service and a link to the then current Terms. You can choose to opt-out of automatic renewals when you upgrade to the Premium Service and at any time during your Premium Service.
Payment Method. You agree to make payment using your selected Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, debit/credit card issuer or other provider (the “Payment Method Provider”). If PeerStream does not receive payment from your Payment Method Provider, you agree to pay all amounts due on your account upon demand. In the event of insufficient funds in your account or credit to cover your payment by your Payment Method we may re-present such un-cleared or rejected payment to your Payment Method Provider. In the event we have to collect unpaid amounts you owe us, you will be liable for all collection costs, including attorneys’ and collection agency fees. PeerStream reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment, and to update your information from available third party sources. Prices do not include Internet service provider, telephone, and other connection charges. PeerStream may refuse service or decline orders for any reason. As a condition to accepting payment, PeerStream may, in its sole discretion, require you to provide written verification and proof of your identity.
PEERSTREAM MAY SUBMIT PERIODIC SUBSCRIPTION FEE CHARGES WITHOUT ADDITIONAL AUTHORIZATION FROM YOU UNTIL YOU AFFIRMATIVELY CANCEL YOUR PREMIUM SERVICE OR NOTIFY US THAT YOU DO NOT WISH TO AUTO-RENEW OR NOTIFY US THAT YOU WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE PEERSTREAM REASONABLY COULD ACT. TO TERMINATE YOUR PAYMENT AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, GO TO:
To Change or Cancel Your Premium Service Subscription. Go to “Profile” near the top right of your account page, click on “Premium Account” and click on “my account” tab. Click on the cancel auto-renew links until you receive a cancellation confirmation code (please keep this number on record) or for security purposes you may be directed to a telephone number to call. In order to avoid any charge for a new term, please call us at least 2 days prior to the current Subscription Term expiration date. If you have any issues about cancellation or due to the timing of third party billing systems you are charged for a subsequent Subscription Term after having cancelled in a timely manner, please contact Customer Care at email@example.com. In order to receive any refund for a charge made after you have cancelled you may be required to evidence proof of cancellation in accordance with these Terms.
Initial Cancellation Rights for Premium Service Subscriptions. [This paragraph does not apply to users in the EU. See the additional section below] You may cancel these Terms without penalty or obligation at any time prior to midnight of the third business day following the original effective date, excluding Sundays and holidays. To cancel these Terms, mail or deliver a signed and dated notice which states that you, the buyer, are canceling these Terms, or words of similar effect. This notice shall be sent to: PeerStream, Inc., 122 E. 42nd Street, Suite 2600, New York, NY 10168. Please include your username and email address in any correspondence or your refund may be delayed. If you cancel, we will return within ten days of the date on which you give notice of cancellation, any payments you have made. If you timely send or deliver the notice to cancel your subscription agreement as described, we will refund the full amount of your subscription.
If you are a User in the EU, you can always end your Premium Service with us, but your rights when you end your Premium Service will depend on what you have bought, whether there is anything wrong with it, how we are performing and when you decide to end the contract.
You have a right to cancel your initial Premium Service within fourteen (14) days, without any penalty to you and you shall be entitled to a refund of the price. This is your right of “cooling-off” and shall apply to your first Subscription Term. The fourteen (14) day period commences after the day on which we email you to confirm you are able to access the Premium Service, or if you have chosen to access the Premium Service immediately, then on the day that you access the Premium Service. In relation to digital content, you agree that we will supply the digital content as soon as we have accepted your order. If we delivered the digital content to you immediately, and you agreed to this when ordering, you will not have a right to change your mind.
You can exercise this right to cancel by writing to us at PeerStream, Inc., 122 E. 42nd Street, Suite 2600, New York, NY 10168 or sending us an email to: firstname.lastname@example.org email.
We will make any refunds due to you as soon as possible using the same means of payment as you initially used to pay us (unless this is not possible, in which case we will use a suitable alternate means).
Current Billing Information Required. YOU MUST PROMPTLY NOTIFY US IF YOUR PAYMENT METHOD IS CANCELLED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USERNAME OR PASSWORD. IF YOU FAIL TO PROVIDE US WITH ANY OF THE FOREGOING INFORMATION, YOU REMAIN RESPONSIBLE FOR ANY CONTINUED CHARGES TO YOUR PAYMENT METHOD YOU PROVIDED.
Change in Amount Authorized. We are entitled to increase our prices for Premium Services from time to time during the period of your Premium Service. If the amount to be charged to your Payment Method varies from the current rate due to an increase in our current rates (other than due to the imposition or change in the amount of state sales taxes), PeerStream will provide notice of the increase and the amount to be charged and the date of the change before the scheduled date of the next Subscription Fee charge. This increase will only apply from the start of the next renewal period and you may choose not to renew your Premium Service if you do not agree with the price increase. We will supply the Premium Service services until your then current Subscription Term expires.
Free or Introductory Promotional Offers If you enrolled in our Premium Service under a special introductory trial offer (for example, a discounted or free initial trial), you hereby acknowledge that unless you cancel your trial within the time frame presented in the offer, the applicable Subscription Fee for the Subscription Term selected will be posted to your Payment Method on the day after the trial period is completed. You agree that there is one (1) introductory or trial offer for use per member.
For Billing-Related Inquires. For assistance with billing-related issues please use “Help/Contact Us” links or email us at email@example.com.
4. MOBILE APP FOR EACH SERVICE (“APP”)
Usage Rights. If you download the App for a Service, PeerStream grants you the right to use for non-commercial purposes one (1) copy of the App for each Service on a single device that you own or control for use in connection with your account. The App includes all upgrades, modifications, functionality and enhancements thereof, as well as any related files and materials furnished or available in connection with the App.
We do not warrant that the App will function properly on your device or is otherwise compatible with it.
You are prohibited from making any copies of the App or modifying, disassembling, decompiling, or reverse engineering the App, subject only to applicable law. Further, you may not lease, sublicense or otherwise transfer or distribute the App to any third party. You will not manipulate in any manner any of the security features available on the App, including without limitation, protections intended to prevent copying or manipulating of any of the content, advertising or features of the App, including any third party software. We may automatically upgrade the App on your device. If there is any third party software or other intellectual property embodied in the App, such material is subject to the rights, title and interest of such third parties and any unauthorized use or copying is prohibited and subject to the terms of the respective third party’s end user license agreement. Third parties reserve all rights not granted in these Terms. [This paragraph does not apply to users in the EU.]
If you are a user in the EU, the Services are comprised of works that are owned or licensed by PeerStream and are protected by copyright, trademark, trade dress, patent and other US and non-US worldwide intellectual property rights and other applicable laws, rules or regulations. All such rights are reserved. If you abide by these Terms, you may use the Services only for your own personal non-commercial purposes. You agree not to use the Services for any other purpose. These Terms does not grant you or any other party any right, title or interest in the Services or any content in the Services.
Third Party Applications and Software. You acknowledge and agree that by downloading any third party application or software that allows you to access the Services, you will abide by the terms of service and/or end user license agreement furnished at the time of download, as updated from time to time.
App Store Version. If the App that you access and use is an Apple application, the Apple application may only be accessed and used on a device owned or controlled by you and using the Apple iPhone OS. If you download the App and any associated mobile software from Apple’s iTunes Store or App Store (“App Store Version”), you agree as follows:
These Terms are between you and PeerStream, and not Apple. As such Apple has no responsibility for the App Store Version and the content thereof. Apple has no obligation to maintain or provide support services for the App Store Version. If the App Store Version does not comply with any applicable warranty described in these Terms, you may notify Apple and Apple will refund the purchase price (if any) to you to the maximum extent permitted by applicable law. Apple will have no other warranty obligation whatsoever with respect to the App Store Version. You agree to comply with the App Store or iTunes Store Terms of Service (available at https://www.apple.com/legal/itunes/us/terms.html#service), including without limitation the Licensed Application End User Terms therein (“Apple Terms”).
You understand that PeerStream and not Apple is responsible for addressing any claims in connection with the App Store Version. Any claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to warranty (if any) will be governed by these Terms. You agree that PeerStream and not Apple is responsible for addressing your or any third party claims relating to the App Store Version including but not limited to (i) product liability claims; (ii) any claim that the App Store Version fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. All such claims will be governed by these Terms and any laws or regulations applicable to the Services or content provide by PeerStream hereunder. In the event of any third party claim that the App Store Version or your possession and use of the App Store Version infringes a third party‘s intellectual property rights, PeerStream and not Apple will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property claim. You represent and warrant that (i) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. government list of prohibited or restricted parties. You agree that notwithstanding anything contained in these Terms to the contrary, Apple and Apple’s subsidiaries are third party beneficiaries of these Terms and that by agreeing to these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as it applies to the App Store Version against you as a third party beneficiary. [This paragraph does not apply to users in the EU.]
5. PROPER USE OF THE SERVICES
Personal Use. The Services and the PeerStream Content described in paragraph 6 below are intended for individual, personal, and noncommercial use in accordance with these Terms. You agree not to offer for sale any products or services, or otherwise use the Services or any of the PeerStream Content or user information on the Services to organize social events or solicit users for commercial purposes. You are not permitted to post your email address or phone number or any similar contact information in your profile, content, email, messages or any other communication to provide a means to circumvent any restrictions on the use of the Services. You should not provide your financial information (for example, your credit card or bank account) to users anywhere on the Services. We may take any lawful action we deem necessary to investigate and enforce the proper use of the Services.
Prohibited Uses. In addition, you agree that you may not access or use the Services in order to do the following prohibited actions, as determined in our sole discretion:
- attempt to get a password, other account information, or other private information from a member or any other user of the Services;
- defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
- restrict or inhibit any other user from using and enjoying the Services. For example, vulgar language, abusiveness, hitting the return key repeatedly, inputting excessively large images so the screen goes by too fast to read, use of excessive SHOUTING (all caps) in an attempt to disturb other users, “spamming,” or flooding (continuous posting of repetitive text) are prohibited;
- send unsolicited mail or email, make unsolicited phone calls or send unsolicited faxes to any user of the Services, or contact any user that has specifically requested not to be contacted by you;
- use the Services in connection with surveys, contests, pyramid schemes, chain letters, junk email, or spam;
- provide any contact information which impersonates or creates a false identity or otherwise falsify any information;
- improperly use support buttons or make false reports to us;
- sell, buy, license or transfer access to your account;
- use any automated software or devices, such as spiders, robots or data mining techniques such as scraping, spidering, crawling or any other techniques to download, store, distribute or otherwise reproduce the PeerStream Content or to manipulate the Services;
- use or copy the PeerStream Content, any data or other content you view on and/or obtain from the Services to provide any product or service that is competitive to PeerStream;
- interfere with, interrupt, destroy or limit the functionality of the Services or any computer software or hardware or telecommunications equipment;
- use the Services in any manner that could damage, disable, overburden, or impair any PeerStream server, or networks connected to any PeerStream server, or interfere with any other party’s use and enjoyment of the Services;
- gain unauthorized access to any Services, other accounts, computer systems or networks connected to any PeerStream server or to any of the Services, through hacking, cracking, and distribution of counterfeit software, password mining or any other means;
- reverse engineer, decompile or disassemble any software accessed through the Services, including any proprietary communications protocol used by us;
- use, upload, transmit, distribute or otherwise make available any material or information, which contain any materials that could infringe any copyright, trademark, patent, trade secret, publicity or privacy right or any other proprietary right or disclose any trade secret of or violate any confidential obligation of any person or entity;
- upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files or data, or any other similar software or programs that may damage the operation of any Services or any user files or data;
- exploit, distribute or publicly communicate any error, miscue or bug which gives an unintended advantage;
- use the Services for any unlawful purpose or any illegal activity, or post or submit any content whatsoever that is false, defamatory, libelous, implicitly or explicitly offensive, vulgar, obscene, threatening, abusive, hateful, racist, discriminatory, of a menacing character or likely to cause annoyance, inconvenience, embarrassment, anxiety or could cause harassment to any person or include any links to pornographic, indecent or sexually explicit material of any kind; or
- post content that contains links to other sites that contain the kind of content which falls within the descriptions prohibited by this section.
Compliance with Laws. Your use of the Services and all User Content (defined below) must comply with all applicable laws and regulations. [This paragraph does not apply to users in the EU.]
Provide Accurate Information. By using our Services, you agree to provide true, accurate, current and complete information about yourself, and maintain and properly update your account profile.
Your Interactions with Other Users. You agree that you are solely liable and responsible for your interactions with other users on the Services. You agree to take all necessary precautions in all interactions with other users, particularly if you decide to communicate off the Services or meet in person, or if you decide to send money to another user. In addition, you agree to review PeerStream’s Safety Tips, prior to using the Service. You understand that PeerStream makes no guarantees, either express or implied, regarding your ultimate compatibility with individuals you meet through the Services. [This paragraph does not apply to users in the EU.]
If you are a user in the EU, we will treat all acts performed through your account as being performed by you. You therefore accept responsibility for all acts done using your account, and may be held liable for losses incurred by us or any other user of the Services caused by someone else using your account. You agree to take all necessary precautions in all interactions with other users, particularly if you decide to communicate off the Services or meet in person, or if you decide to send money to another user. In addition, you agree to review PeerStream’s Safety Tips, prior to using the Service. You understand that PeerStream makes no guarantees, either express or implied, regarding your ultimate compatibility with individuals you meet through the Services.
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS. YOU UNDERSTAND THAT WE CURRENTLY DO NOT CONDUCT CRIMINAL BACKGROUND CHECKS OR SCREENINGS ON OUR USERS. PEERSTREAM ALSO DOES NOT INQUIRE INTO THE BACKGROUNDS OF ALL OF ITS USERS OR ATTEMPT TO VERIFY THE STATEMENTS OF ITS USERS. PEERSTREAM MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS. PEERSTREAM RESERVES THE RIGHT TO CONDUCT ANY CRIMINAL BACKGROUND CHECK OR OTHER SCREENINGS (SUCH AS SEX OFFENDER REGISTER SEARCHES), AT ANY TIME AND USING AVAILABLE PUBLIC RECORDS. [THIS PARAGRAPH DOES NOT APPLY TO USERS IN THE EU.]
IF YOU ARE A USER IN THE EU, WE WILL TREAT ALL ACTS PERFORMED THROUGH YOUR ACCOUNT AS BEING PERFORMED BY YOU. YOU THEREFORE ACCEPT RESPONSIBILITY FOR ALL ACTS DONE USING YOUR ACCOUNT, AND MAY BE HELD LIABLE FOR LOSSES INCURRED BY US OR ANY OTHER USER OF THE SERVICES CAUSED BY SOMEONE ELSE USING YOUR ACCOUNT AND YOU UNDERSTAND THAT WE CURRENTLY DO NOT CONDUCT CRIMINAL BACKGROUND CHECKS OR SCREENINGS ON OUR USERS. PEERSTREAM ALSO DOES NOT INQUIRE INTO THE BACKGROUNDS OF ALL OF ITS USERS OR ATTEMPT TO VERIFY THE STATEMENTS OF ITS USERS. PEERSTREAM MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS.
User Content. The Services may contain e-mail service, forums, communities, and/or other message or communication facilities designed to enable you to communicate with others. You agree that all content you submit, post, upload, embed, display or communicate (“User Content”) will comply with these Terms. You acknowledge and agree that your User Content is public. Therefore, exercise caution when using the Services as any personal information that you communicate may be seen and used by others and could result in unsolicited communications or other unwanted activity. PEERSTREAM IS NOT RESPONSIBLE FOR ANY OTHER USER’S MISUSE OR MISAPPROPRIATION OF ANY OF YOUR USER CONTENT OR INFORMATION YOU POST APPEARING ON OR THROUGH THE SERVICES.
Representation of Ownership. You retain copyright and other intellectual property rights with respect to any User Content that you submit or distribute through the Services to the extent that you have such rights under applicable law. By providing User Content on the Services you represent and warrant that you own such User Content or otherwise have the right to grant us the license set forth in these Terms; that the User Content is accurate and not confidential and the distribution, submission, transmission, posting and use of your User Content on the Services is not in violation of any applicable laws or contractual restrictions or other third party rights (including, without limitation, privacy, publicity, and intellectual property rights). You are solely responsible for, and we will have no liability in connection with your User Content or any other User Content you access through the Services.
License to User Content. All User Content must comply with these Terms. By submitting, transmitting, or displaying your User Content on or through Services, you automatically grant (and you represent and warrant that you have the right to grant) to PeerStream, its licensees, and their respective successors in business and assigns, employees, licensees, agents, representatives and other users of the Services, a worldwide, sublicenseable, assignable, perpetual, non-exclusive, royalty-free, unlimited right and license to use, reproduce, publish, distribute, publicly display and perform, reformat, adapt, modify and delete your User Content in connection with the Services for any purpose whatsoever, including advertising and trade purposes to the extent permitted by law. This includes the right to filter, modify or adapt your User Content in order to transmit, display or distribute it over computer networks and to allow third parties to access User Content through Services, as provided in these Terms subject to any such rights being exercised by PeerStream in compliance with applicable EU data protection laws. It also includes the right for PeerStream to choose member profiles to feature on the Services for enhanced visibility at no extra cost, in the sole discretion of PeerStream. You waive all moral rights with respect to the User Content and you acknowledge that PeerStream is relying upon, and would not use the User Content you submit in the absence of these terms.
6. PEERSTREAM’S RIGHTS
Ownership of PeerStream Content and Marks. The Services, and all material published on or accessible through Services (excluding User Content), including, but not limited to text, tests, photographs, video, graphics, music, images, animations, audio, software, plug-ins, “applets” incorporated into the software, data, sounds, messages, comments, and other materials on the Services (together “PeerStream Content”) is owned by PeerStream or its licensors, and is protected by laws governing copyrights patents, trademarks, trade secrets and/or other proprietary rights. PeerStream owns a copyright in the selection, coordination, arrangement and enhancement of such PeerStream Content and a copyright in the Services. All trademarks, logos, service marks, trade names, and trade dress appearing on the Services, including, without limitation, PeerStream Interactive, FirstMet and 50more (“Marks”) are proprietary to PeerStream or its licensors. You acknowledge that you do not acquire any ownership rights in any PeerStream Content or Marks downloaded from the Services. You may not frame or utilize framing techniques to enclose any Mark or PeerStream Content (including images, text, page layout, or form) nor use any meta tags or any other “hidden text” utilizing the Marks without our prior express written consent. You agree not to copy, reproduce, publish, transmit, distribute, perform, sell, create derivative works of, or in any way exploit, the Services or any of the Marks or PeerStream Content, in whole or in part, without our prior written consent. If you have a website and wish to establish temporary or permanent links from your website to any of our Services, you must link to our homepage only. You may not link to another location within any Service without our written permission. We reserve all rights not expressly granted in and to the Marks, PeerStream Content and Services.
No Other License Granted. Except for allowing you to use the Services as set forth in these Terms, when you use the Services you are not receiving a license or any other rights from us, including intellectual property or other proprietary rights of PeerStream. You understand that you have no rights to the PeerStream Content, Marks or Services except as indicated.
Modification to Services. PeerStream has the right to change or modify its Services (and services or products accessible through its Services) and PeerStream Content at any time in its sole discretion. Your only right with respect to any dissatisfaction with any modifications made pursuant to this provision, or our policies or practices in providing the Services is to stop using our Services and deactivate your account. If you are a user in the EU, we will also notify you in advance of any substantial changes and you shall have the right to cancel your Premium Service, stop using our Services. deactivate your account and receive a partial refund if such substantial changes significantly reduce the quality or substance of the Services.
Monitoring Of User Content. PeerStream has no obligation to monitor User Content but reserves the right to review and remove any User Content at any time, without notice, for any reason and in its sole discretion.
Investigations. PeerStream has no obligation, but reserves the right to investigate suspected violations of these Terms, including without limitation any violation arising from any User Content you make or send through the Services. PeerStream may seek to gather information from the user who is suspected of violating these Terms, and from any other user. PeerStream may suspend any users whose conduct or postings are under investigation and may remove such material from its servers as it deems appropriate and without notice. If PeerStream believes, in its sole discretion, that a violation of these Terms has occurred, it may cancel postings, warn users, suspend users and passwords, terminate accounts or take other corrective action it deems appropriate.
BY ACCEPTING THESE TERMS, YOU WAIVE AND HOLD HARMLESS PEERSTREAM FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY PEERSTREAM AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY ANOTHER USER OR LAW ENFORCEMENT AUTHORITIES. This waiver does not apply to users in the EU.
Information Provided About The Services. Any references in communications to increased frequency of messages for members represent averages seen in our sample data and are not guaranteed for any individual user. Pictures used in advertisements and promotions may not be actual members. Any references to unlimited communications or unlimited friend requests on Facebook are subject to any limits and requirements imposed by Facebook as well as compliance with Facebook’s Terms of Service.
7. TERMINATION OF YOUR ACCOUNT BY US
Violating the Agreement. Your violation of these Terms constitutes grounds for immediate termination of your account without further notice at our sole discretion.
Termination of Services. PeerStream can suspend or terminate your account or access to the Services, in whole or in part at any time, immediately for any reason whatsoever, including without limitation:
- for misuse of the Services in any way or inappropriate, unlawful, or unsafe behavior, as determined in our sole discretion; and/or
- you don’t make any payment to us when they are due, and you still don’t make payment within seven (7) days of us reminding you that your payment is due; and/or
- you don’t comply with these Terms and you don’t resolve this within seven (7) days of us requesting you to.
Termination will result in cancellation of all rights of access and use of Services. We will be the sole determiner in cases of suspected abuse, fraud, or breach of these Terms. Any decision we make relating to termination or deactivation of any user’s account shall be final and binding. You agree that we may terminate, deactivate, modify, discontinue or abandon the Services with notice to you and that we will not be liable to you or any third party as a result of such actions, save that if we terminate the Services to you will be entitled to a refund for any unused portion of any pre-paid Subscription Fee to reflect the remainder of the Subscription Term that we haven’t provided to you, but we may deduct or charge you a reasonable amount for any costs we will incur as a result of you breaking these Terms and our contract.
8. DIGITAL MILLENNIUM COPYRIGHT ACT
Filing a Complaint:
PeerStream has registered an agent with the United States Copyright Office in accordance with the terms of the Digital Millennium Copyright Act (the “DMCA”) and avails itself of the protections under the DMCA. We reserve the right to remove any User Content on the Services which allegedly infringes another person’s copyright and/or terminate, discontinue, suspend and/or restrict the account or ability to visit and/or use the Services or remove, edit, or disable any User Content on our Services which allegedly infringes another person’s copyright. It is our policy to terminate the access of repeat infringers. We are under no obligation to, and do not, scan content posted for any violations of third party rights. However, we respect the copyright interests of others and it is our policy not to permit materials known by us to infringe another party’s copyright to remain on Services. If you believe any materials on the Services infringes a copyright, you should provide us with a written request to takedown the allegedly infringing material in the form of a written letter, sent by fax or regular mail only, which includes:
- Identification of the Service and the material that is claimed 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 us to locate the material;
- Your name, address, telephone number and email address (if available);
- A statement that the complaining party has 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 the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
- The signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Notwithstanding the foregoing, we reserve the right to ignore a DMCA Takedown Notice that is not in compliance with the DMCA.
Filing a Counter-Notice:
If your material has been removed or blocked by us as a result of our receipt of a DMCA Takedown Notice, you may send us a request asking for the allegedly infringing material to be restored in the form of a written letter, sent by fax or regular mail only, (“DMCA Counter-Notice”) that at a minimum includes:
- Identification of the copyrighted work (or works) that was removed by PeerStream and the location at which the works appeared before they were removed. The information must be reasonably sufficient to permit us to identify the copyrighted work;
- Your name, address, telephone number and email address (if available);
- A statement that you consent to the jurisdiction of the U.S. Federal District Court for the judicial district in which your address is located, or New York if your address is outside of the United States;
- A statement that you will accept service of process from the person (or an agent of such person) that provided the DMCA Takedown Notice to us;
- A statement that you have a good faith belief that the allegedly infringing material identified above as the copyrighted work was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
- A signature of a person authorized to act on behalf of the owner of the copyrighted work that was taken down;
When we receive the DMCA Counter-Notice, we will send a copy of the DMCA Counter-Notice to the party who originally sent us the DMCA Takedown Notice requested the removal of the allegedly infringing material and we will reinstate the allegedly infringing material, unless that party obtains a court order supporting removal of the allegedly infringing material. Notwithstanding the foregoing, we reserve the right to ignore a DMCA Counter-Notice that is not in compliance with the DMCA.
Both the DMCA Takedown Notice and the DMCA Counter-Notice must be sent to our designated DMCA designated agent addressed as follows:
122 E. 42nd Street, Suite 2600
New York, NY 10168
Attention: Alexander Harrington
If you are a user in the EU, you should contact us on the email address detailed above.
You should contact the DMCA Agent only for delivering copyright infringement notices and counter notifications. The DMCA Agent will not answer any other inquires.
[Click here is you are a user in EU to read the Legal Notices for EU users.]
Waiver to Liability [All paragraphs in this section do not apply to users in the EU.] TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PEERSTREAM NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, THIRD-PARTY CONTENT PROVIDERS, MERCHANTS, SPONSORS, LICENSORS, OR THE LIKE (COLLECTIVELY, “PEERSTREAM PARTIES”) BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO ANY CLAIMS BASED ON YOUR CONDUCT OR ANYONE ELSE’S IN CONNECTION WITH THE USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS WITH OTHER USERS OF THIS SERVICES OR PERSONS YOU MEET THROUGH THIS SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH OTHER USERS OF THE SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON. IN ADDITION, YOU AGREE TO REVIEW PEERSTREAM’S SAFETY TIPS, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE. PEERSTREAM MAKES NO GUARANTEES, EITHER EXPRESS OR IMPLIED, REGARDING YOUR ULTIMATE COMPATIBILITY WITH INDIVIDUALS YOU MEET THROUGH THE SERVICES OR YOUR SAFETY.
ANY ADVICE OR SUGGESTIONS THAT MAY BE POSTED ON THE SERVICES ARE FOR INFORMATIONAL AND ENTERTAINMENT PURPOSES ONLY AND IS NOT INTENDED TO REPLACE OR SUBSTITUTE FOR ANY PROFESSIONAL ADVICE. IF YOU HAVE SPECIFIC CONCERNS OR A SITUATION ARISES IN WHICH YOU REQUIRE PROFESSIONAL ADVICE, YOU SHOULD CONSULT WITH AN APPROPRIATELY TRAINED AND QUALIFIED SPECIALIST.
Liability Limitation. [All paragraphs in this section do not apply to users in the EU.] TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PEERSTREAM OR THE PEERSTREAM PARTIES BE LIABLE TO YOU (OR ANY THIRD PARTY MAKING CLAIMS THROUGH YOU) FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOSS OF USE, PROFITS, DATA, OR OTHER INTANGIBLES, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, BASED ON A CLAIM OF UNAUTHORIZED ACCESS TO AND TAMPERING WITH YOUR PERSONAL INFORMATION OR TRANSMISSIONS, CLAIMS OF DEFAMATION, FALSE LIGHT, SLANDER OR LIBEL, ARISING OUT OF OR RELATED TO THE USE, OR INABILITY TO USE, UNAUTHORIZED USE, PERFORMANCE, OR NON-PERFORMANCE OF THE SERVICES, EVEN IF PEERSTREAM HAS BEEN ADVISED PREVIOUSLY OF THE POSSIBILITY OF SUCH DAMAGES OR WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE.
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
YOU UNDERSTAND THAT THE SERVICES AND ALL PEERSTREAM CONTENT, INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THIRD PARTY INFORMATION, PRODUCTS AND CONTENT INCLUDED IN OR ACCESSIBLE FROM THE SERVICES) ARE PROVIDED ON AN “AS IS” BASIS. PEERSTREAM AND THE PEERSTREAM PARTIES DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND (EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS) AS TO THE SERVICES AND ALL INFORMATION, PRODUCTS, AND OTHER CONTENT (INCLUDING THIRD PARTY INFORMATION, PRODUCTS, AND CONTENT) INCLUDED IN OR ACCESSIBLE FROM THE SERVICES. YOU ACKNOWLEDGE THAT PEERSTREAM MAKES NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. NO WARRANTY OF ANY KIND, WHETHER ORAL OR WRITTEN, CAN MODIFY THE TERMS OR THE DISCLAIMERS SET FORTH IN THIS DOCUMENT. IF ANY PART OF THESE WARRANTY DISCLAIMERS OR LIMITATIONS OF LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN PEERSTREAM’S AGGREGATE LIABILITY FOR ALL CLAIMS UNDER SUCH CIRCUMSTANCES FOR LIABILITIES SHALL NOT EXCEED $50.00.
Indemnity/Release. [This paragraph does not apply to users in the EU.] You agree to indemnify and hold PeerStream, and the PeerStream Parties (collectively, “Indemnitees”) from and against claims of any kind that Indemnitees may incur arising out of or related to your unauthorized use of the Services or in connection with a third party claim or otherwise, in relation to your unauthorized use of the Services or your violation of either these Terms, applicable law or the rights of any third party. To the extent permitted under applicable laws, you hereby release Indemnitees from any and all claims or liability related to your unauthorized use of the Services.
EU Legal notices
If you are a user in the EU, the following terms apply:
a. If PeerStream fails to comply with these Terms, PeerStream is responsible for loss or damage you suffer that is a foreseeable result of PeerStream’s breach of these Terms or as a result of PeerStream’s negligence, but PeerStream is not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if it was an obvious consequence of our breach or if it was contemplated by you and PeerStream at the time we entered into these Terms. We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors and for fraud or fraudulent misrepresentation.
b. PeerStream only provides the PeerStream Services, and associated products and services made available by PeerStream via these PeerStream Services, for your domestic and private use. You agree not to use the PeerStream Services and associated products and services made available by PeerStream for any commercial, business or re-sale purpose, and PeerStream has no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
c. If defective digital content that we have supplied under this Agreement damages a device or digital content belonging to you and this is caused by our failure to use reasonable care and skill, we will either repair the damage or pay you compensation. However, we will not be liable for damage that you could have avoided by following our advice to apply an update offered to you free of charge or for damage that was caused by you failing to correctly follow installation instructions or to have in place the minimum system requirements advised by us.
SPECIAL STATE DISCLOSURES [This section does not apply to users in the EU. If you are a user in the EU, please go the section 11 [click here].]
New Jersey Residents. The following are modifications to the provisions in Section 9 Legal Notices and apply only to consumers who are residents of New Jersey. Except as modified below, the provisions in Section 9 above remain unchanged and applicable to N.J. residents:
PeerStream’s disclaimers or waiver of liability for damages incurred by you for any interruption, malfunction, impossibility of access, or poor conditions of the Services or for any other reason will not apply to damages directly caused by PeerStream’s gross negligence or willful misconduct. In addition, Company’s disclaimer of warranty as to the quality, accuracy, completeness or validity of the Services and all PeerStream Content (excluding third party content or information) is not applicable. However, PeerStream does not guarantee that the use of the Services will meet your requirements.
PeerStream’s limitation of liability does not apply to you for damages arising out personal injury, property damage, negligence or willful misconduct or any other cause of action arising from the acts of PeerStream but does apply to the acts or omissions of third parties. Company’s aggregate liability for all claims under any circumstances will not exceed the lesser of $1,000.00 or your actual, out of pocket costs and damages. For the avoidance of doubt, in no event will PeerStream be liable for special, incidental, consequential, or other similar damages as stated in these Terms.
California Residents. If you are a California resident and in connection with the foregoing release, you hereby waive California Civil Code Section 1542 (and any similar provision in any other jurisdiction) which states: “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.”
10. RESOLUTION OF DISPUTES [This section does not apply to users in the EU. If you are a user in the EU, please go the section 11 [click here]
Governing Law. [This paragraph does not apply to users in the EU.] These Terms shall be governed by and construed in accordance with the laws of the State of New York without application of conflict of laws rules, except that the arbitration provision shall be governed by the Federal Arbitration Act (“FAA”).
Resolution of Any Dispute. [This paragraph does not apply to users in the EU.] In the event a dispute arises between you and PeerStream, we want to provide you with an efficient, neutral and cost-effective means of resolving the dispute. Most customer concerns can be resolved quickly by contacting us at PeerStream, Inc., 122 E. 42nd Street, Suite 2600, New York, NY 10168. If, however, there is an issue that is unresolved, these Terms describes how both of us will proceed:
Binding Arbitration. [This paragraph does not apply to users in the EU.] YOU AND PEERSTREAM AGREE TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW THAT THE EXCLUSIVE MEANS OF RESOLVING ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES IS BINDING ARBITRATION. INSTEAD OF SUING IN COURT, YOU AND PEERSTREAM EACH AGREE TO ARBITRATE DISPUTES ON A BILATERAL (INDIVIDUAL) BASIS PURSUANT TO THE JAMS ARBITRATION RULES AND PROCEDURES WITHOUT CLASS RELIEF, EXCEPT FOR DISPUTES PERTAINING TO PEERSTREAM’S INTELLECTUAL PROPERTY RIGHTS; STATUTORY CLAIMS THAT PURSUANT TO LAW ARE NOT ARBITRABLE; INDEMNIFICATION; CONTRIBUTION; INTERPLEADER; OR INJUNCTIVE RELIEF ARISING OUT OF A CLAIM. These Terms to arbitrate is intended to be broadly interpreted. It includes claims based in contract, tort, statute, fraud, misrepresentation or any other legal theory (“Claims”). The arbitrator’s decision and award is final and binding, with some exceptions under the Federal Arbitration Act, 9 U.S.C. 1, et seq., and judgment on the award may be entered in any court with jurisdiction.
Jury Trial Waiver. [This paragraph does not apply to users in the EU.] WE EACH AGREE TO WAIVE THE RIGHT TO GO TO COURT OR HAVE A TRIAL BY JURY.
Class Action Waiver. [This paragraph does not apply to users in the EU.] All arbitrations under these Terms will be conducted by a single arbitrator who shall have no authority to award class-wide relief. You acknowledge and agree that these Terms specifically prohibits you from commencing any legal proceedings as a representative of others or joining in any arbitration proceedings brought by any other person, acting as a private attorney general, or joining or consolidating Claims with claims or proceedings brought by any other person (“Class Action Waiver”).
Arbitration Procedures. [This paragraph does not apply to users in the EU.] A party who intends to seek arbitration must first send to the other a written Notice of Dispute describing the nature and basis of the Claim and setting forth the specific relief sought. All notices to PeerStream shall be sent to the following address: PeerStream, Inc., 122 E. 42nd Street, Suite 2600, New York, NY 10168. All notices to you will be sent to the email provided in your account. Upon receipt of such notice, the other party shall have a sixty (60) day period in which it may satisfy the Claim against it by fully curing the Claim and/or providing all the relief requested in the notice, and/or entering into a settlement to resolve the Claim to the mutual satisfaction of the parties. After the expiration of such sixty-day cure period, you or PeerStream may commence an arbitration proceeding. Unless otherwise agreed to by you and PeerStream in writing, the arbitration of any Claim under these Terms shall be referred to JAMS under its rules and procedures, be decided before a single arbitrator with substantial experience in the internet industry, and will follow substantive law in adjudicating the dispute, except that this section will be construed as a written agreement to arbitrate pursuant to the FAA. You and PeerStream agree that this section satisfies the writing requirement of the FAA. The JAMS rules are available on its website at www.jamsadr.com. The arbitration of any Claim shall be conducted in the State of New York, and for any non-frivolous Claim that do not exceed $10,000 PeerStream will: (1) pay all costs of the arbitration; (2) if you prefer will conduct the arbitration by telephone, and (3) will not seek attorneys’ fees in the event PeerStream prevails. Each party shall pay the fees and costs of its own counsel, experts and witnesses. To the extent this dispute resolution section conflicts with JAMS minimum standards for procedural fairness, the JAMS rules and/or minimum standards for arbitration procedures in that regard will control. Neither party shall sue the other party other than as provided herein or for enforcement of this clause or for the arbitrator’s award; and any such suit may be brought only in Federal District Court or, if any such court lacks jurisdiction, in any state court that has jurisdiction. The arbitrator, and not any federal, state, or local court, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, or enforceability of these Terms, including any claim that all or any part of these Terms is void or voidable. However, the preceding sentence shall not apply to the clause entitled “Class Action Waiver”.
Exception. [This paragraph does not apply to users in the EU.] All parties, including related third parties, shall retain the right to seek adjudication in a small claims tribunal for disputes within the scope of such tribunal’s jurisdiction. Any dispute, which cannot be adjudicated within the jurisdiction of a small claims tribunal, shall be resolved by binding arbitration, with the exception of any Claim or action for indemnification, contribution, interpleader, or injunctive relief arising out of a Claim, which Claims or actions shall not be subject to arbitration. Any appeal of a judgment from a small claims tribunal shall be resolved by binding arbitration.
Choice of Law. [This paragraph does not apply to users in the EU.] Any proceeding to enforce this arbitration agreement may be commenced in any court of competent jurisdiction. In the event that this arbitration agreement is for any reason held to be unenforceable, any litigation against PeerStream (except for small claims actions) may be commenced only in the federal or state courts of New York, New York. You hereby consent to the jurisdiction of those courts for such purposes.
If you are a consumer, we are under a legal duty to provide a service and digital content to you that conforms to the provisions of these Terms. Nothing in these Terms, shall in any way affect your legal rights. This is a summary of your key legal rights in the EU:
If your product is digital content, the Consumer Rights Act 2015 says digital content must be as described, fit for purpose and of satisfactory quality. If your digital content is faulty, you’re entitled to a repair or a replacement. If the fault can’t be fixed, or if it hasn’t been fixed within a reasonable time and without significant inconvenience, you can get some or all of your money back. If you can show the fault has damaged your device and we haven’t used reasonable care and skill, you may be entitled to a repair or compensation. See also the right to cancel during a “cooling off” period above.
If your product is services, the Consumer Rights Act 2015 says you can ask us to repeat or fix a service if it’s not carried out with reasonable care and skill, or get some money back if we can’t fix it. If you haven’t agreed a price beforehand, what you’re asked to pay must be reasonable. If you haven’t agreed a time beforehand, it must be carried out within a reasonable time. See also the right to cancel during a “cooling off” period above.
Nothing in this section will prevent a party from pursuing their Claims in court or another complaint process.
12. OTHER IMPORTANT TERMS
Survival. If these Terms expire or are terminated for any reason, the provisions which by their nature should continue after termination such as PeerStream’s Rights, Legal Notices, Resolution of Disputes and General.
Severability. Each of the paragraphs of these Terms operates separately. If any provision of these Terms is declared or found by a court of competent jurisdiction or arbitrator to be unlawful, unenforceable or void, such provision will be ineffective only to the extent that it is found unlawful, unenforceable or void, and the remainder of the provision and all other provisions will remain fully enforceable, except that if the Class Action Waiver for any Claim cannot be enforced, then the provision to arbitrate will not apply. No Third Party Beneficiaries. You agree that, except as otherwise expressly provided in these Terms, there aren’t any third party beneficiaries to these Terms.
U.S. Export Controls. Software from our Services shall be not be exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
Permission to Contact You. When you provide us with contact information such as an email address or telephone number in connection with our Services or login to the Services, you agree that this action establishes a business relationship giving us permission to communicate with you using your contact information. This means you may be contacted in person or by recorded message, by e-mail, telephone and/or mobile telephone number (including use of automated dialing equipment), text (SMS) message, push notification, IM messaging, or any other means of communication that your wireless or other telecommunications device may be capable of receiving, in accordance with applicable law. You expressly authorize us and our service providers to communicate with you about our Services using the information you provided to us. You attest that you have the legal authority to provide us and/or third parties with the authorization to contact you. Please be sure to give us updated contact information; you are solely responsible for the accuracy of for any the contact information you provide to us. [This does not apply to users in the EU.] For EU users, you have the right to opt out at any time from receiving marketing from Peerstream. Where required by EU law we will obtain your consent prior to sending any marketing to you.
No liability for Accumulated Content. When using the Services, you may accumulate content that resides as data on our servers. This data, and any other data residing on our servers, may be deleted, in whole or in part, altered, moved or transferred at any time for any reason in our sole discretion with or without notice and with no liability of any kind. You acknowledge that, notwithstanding any rights you may have with respect to User Content, you have no ownership rights in your account and, if your account is terminated or deactivated, all your account information may be deleted. PEERSTREAM DOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY ACCOUNT INFORMATION RESIDING ON PEERSTREAM’S SERVERS AND HAS THE RIGHT TO DELETE SUCH ACCOUNT INFORMATION AT ANY TIME FOR ANY REASON.
Data Collection Policy. No party unaffiliated with us may collect or use, or direct, authorize or assist other persons or entities to collect or use any data from a user, or a computer or device operated by a user, while accessing our Services without our prior express written permission.
Entire Agreement. These Terms, and policies incorporated herein, are the entire agreement between you and PeerStream. They supersede any and all prior or contemporaneous agreements between you and PeerStream relating to your use of the Services. This does not apply to users in the EU.
PeerStream may assign these Terms, in whole or in part, at any time.
Headings in the Terms are for convenience of reference only and shall not affect the interpretation or construction of these Terms.
Even if we delay in enforcing these Terms, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these Terms, or if we delay in taking steps against you in respect of your breaking these Terms, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date. For example, if you miss a payment and we do not chase you but we continue to provide the Services, we can still require you to make the payment at a later date.
Yours and our rights and remedies under these Terms shall be cumulative.
Security. If you use the Services, you are responsible for restricting access to your computer and ensuring that your computer and mobile device are free from all types of malicious content, including content that may track any data you enter via the Services, including email address, credit card number, and other payment-related information.
Copyright (c) 2018 PeerStream, Inc. All rights reserved.