TABULOUS LLC
TABULOUS TERMS OF SERVICE
EFFECTIVE DATE: FEBRUARY 14, 2022
LAST UPDATED: FEBRUARY 14, 2022
PLEASE READ THESE TABULOUS TERMS OF SERVICE (“TERMS”) FOR TABULOUS, PROVIDED BY TABULOUS (“TABULOUS,” “US,” OR “WE”), CAREFULLY. IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THESE TERMS, OUR PRIVACY POLICY, OR ANY OTHER TERMS THAT YOU HAVE ENTERED INTO WITH US (COLLECTIVELY, THE “AGREEMENT”), THEN YOU DO NO HAVE OUR PERMISSION TO USE AND/OR ACCESS TABULOUS PLATFORM, TABULOUS SERVICES AND/OR TABULOUS PRODUCTS. BY ACCESSING OR USING TABULOUS PLATFORM, TABULOUS SERVICES, TABULOUS PRODUCTS AND/OR BY PROVIDING USER CONTENT, YOU, AN INDIVIDUAL (“YOU” OR “YOUR”) AGREE TO BE BOUND BY THE TERMS DESCRIBED HEREIN AND ALL TERMS INCORPORATED BY REFERENCE, INCLUDING PRIVACY POLICY AND COMMUNITY GUIDELINES, WHICH FORM A LEGALLY BINDING CONTRACT WITH YOU AND TABULOUS. AS FURTHER DESCRIBED BELOW, THE TERMS INCLUDE PROVISIONS REGARDING FUTURE CHANGES TO THE AGREEMENT, LIMITATIONS OF LIABILITY, PRIVACY, WAIVER OF CLASS ACTIONS, AND RESOLUTION OF DISPUTES BY ARBITRATION INSTEAD OF IN COURT.
DEFINITIONS
Throughout this Agreement, we may use certain words or phrases, and it is important that you understand the meaning of them. The list is not all-encompassing and no definition should be considered binding to the point that it renders this Agreement inapplicable:
1) ACCEPTANCE OF TERMS
These terms incorporate by reference our Privacy Policy and Community Guidelines. You acknowledge that You have read and understood the Terms, accept the Terms, and agree to be bound by them. If You don’t agree with, cannot comply with, or are not eligible for the Terms, then You may not use or access the Tabulous Platform, Tabulous Services, and/or Tabulous Products, and/or provide any User Content.
You must be at least 13 years old to use the use the Tabulous Services, access the Tabulous Platform and/or the Tabulous Products, and/or provide User Content. By agreeing to these Terms, You represent and warrant to Us that: (i) You are at least 13 years old; (ii) You have not previously been suspended or removed from the Tabulous Platform and/or the Tabulous Services; (iii) Your use of the Tabulous Platform or Tabulous Services is in compliance with any and all applicable laws and regulations; and (iv) any registration information that You submit to Tabulous is true, accurate, and complete, and You agree to keep it that way at all times. No part of the Tabulous Platform or Tabulous Services is directed to persons under the age of 13. IF YOU ARE UNDER 13 YEARS OF AGE, YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER.
2) DESCRIPTION OF TABULOUS PLATFORM, TABULOUS SERVICES, TABULOUS PRODUCTS AND USER CONTENT
Tabulous provides a custom online learning platform via online tab players for songs from all over the globe, with each tab being accompanied by song audio and providing for automatic scrolling through each respective tab, allowing you to follow along with ease while you learn. Tabulous may use and/or be hosted on any and all media, whether such media is now known or hereinafter devised, including its website, which is accessible at https://www.tabulous.xyz (the “Tabulous Website” or “Site”) and without limitation, any mobile applications and related social media platform(s) (collectively, the “Tabulous Platform”). Tabulous provides access to the Tabulous Platform to its end users (the “Users”) by way of subscription and non-subscription services to purchase Tabulous Products (as defined below). The Tabulous Platform allows users to learn how to play high-quality guitar, bass and drum tabs and chords with interactive playback and realistic guitar sound, for commercial sale as ordered on the Tabulous Platform (“Tabulous Products”). Users will have the ability to create their own custom tabs and/or works (“User Content”) with the Tabulous Product(s). Tabulous shall also facilitate payment processing, customer services, third-party manufacturing, if any, and arrange for the delivery of the Tabulous Products (whether free or paid) to the customer (all of the foregoing, including the ability to upload User Content, the creation of Tabulous Products, and facilitation of product fulfillment, constitute the “Tabulous Services”). The Tabulous Platform, Tabulous Services, and Tabulous Products may be available wherever allowed by applicable law.
3) MODIFICATION OF THE TERMS
Tabulous may modify these Terms and We encourage You to review these Terms regularly. Any
changes or modifications shall be effective immediately upon posting the revisions to the Tabulous Platform and You will be bound by the revised Terms. If material changes to these Terms are made, Tabulous may notify You by posting a notice on the Tabulous Platform or by sending You a notice by email or text (or similar format) to the address registered with Your Account (as defined below). We will also indicate at the top of this page when these Terms were last updates. Your continued use and access of the Tabulous Platform, Tabulous Services, and/or Tabulous Products, and/or providing of User Content after modification of these Terms mean that You accept all modified Terms. Notwithstanding the foregoing, the modifications to Section 17 (“MANDATORY ARBITRATION, CLASS ACTION WAIVER, AND OPT-OUT”) shall be communicated in accordance with Section 17.
4) ACCESS TO TABULOUS PLATFORM AND TABULOUS SERVICES
a) Tabulous Platform and Tabulous Services. Tabulous Platform and Tabulous Services are the property of Tabulous. By accessing the Tabulous Website and/or Platform, registering for an Account (including payment processing requirements) on the Tabulous Website and/or Platform or using any Tabulous Services, the User agrees to be bound by these Terms of Use which shall continue to apply for as long as the User is accessing the Tabulous Platform, subscribing for an Account, or using the Tabulous Services. When the User is no longer accessing the Tabulous Platform, subscribed to an existing Account, or using any Tabulous Services, the User’s legal obligations and liabilities towards Tabulous that have accrued over time shall be unaffected by this cessation. Tabulous reserves all rights not expressly granted in these Terms of Service.
All Tabulous trademarks, service marks, trade names, logos, domain names, and any other features of the Tabulous brand (“Tabulous Brand Features”) are the sole property of Tabulous or its licensors. The Agreement does not grant You any rights to use any Tabulous Brand Features whether for commercial or non-commercial use.
You agree to abide by Your Responsibilities (as stated in Section 8) and not to access and/or use the Tabulous Services, Tabulous Platform, and Tabulous Products or any part thereof in any manner not expressly permitted by the Agreement. Except for the rights expressly granted to You in the Agreement, Tabulous grants no right, title, or interest to Users in the Tabulous Services, Tabulous Platform, and/or Tabulous Products.
You may not access the Tabulous Platform or use the Tabulous Services: if You does not accept these Terms of Service; if You are not of legal age to form a binding contract with Tabulous; if a person who is either barred or otherwise legally prohibited from receiving or using the Tabulous Platform or Services under applicable law. On certain areas of the Tabulous Website, You may be given the ability to provide Us with personally identifiable information. Please read Our Privacy Policy for more information about Tabulous’s information collection and use practices.
b) Account. Users are not required to create an Account to purchase Tabulous Products or use the Tabulous Platform. However, to submit User Content or gain full access to the Tabulous Platform, You must create an Account (“Your Account”). Your Account is personal to You and You are solely responsible for any and all activity that occurs under Your Account, including unauthorized activity. You must safeguard the confidentiality of Your Account information and the associated password. If You are using a computer that others have access to, You must log out of Your account after each session. If You become aware of unauthorized access to Your account, You must change Your password and notify Us immediately by writing to Us at hello@tabulous.xyz. When creating an Account, You are required to provide accurate and complete information.
c) APP. Our Apps will be/are provided for iOS and Android, and are available through the third-party app stores for each of those systems. Any billing issues regarding Your payment for Our Apps are the responsibility of the relevant third-party app provider. Additionally, You agree that any data charges or other third-party charges arising from Your mobile provider or other third parties shall be your sole responsibility. Tabulous advises You to track your usage of its Service(s) carefully so that You do not incur any unexpected expenses. Finally, please be advised that our Apps is software and is provided on a licensed basis. When paying for Our App, You are purchasing a license to download and use one copy of Our App at the listed price. You must not reverse engineer, copy, or otherwise tamper or replicate Our App. You agree that we may revoke this license at any time without warning and without compensation, and that You shall be required to take reasonable efforts to delete any copies of the App or related software that may be in Your possession or under Your control if such a revocation occurs.
5) SUBMITTING USER CONTENT
You acknowledges and agree that the Tabulous Platform is designed for a purpose serving a particular community and interest, and that any User Content submitted conforms to such purpose.
a) Grant of Rights to User Content. When You contribute User Content to Tabulous (“Your Content”), whether through Tabulous Services or otherwise, You hereby grant Tabulous a worldwide, perpetual, irrevocable, non-exclusive during display on the Tabulous Platform, royalty-free, fully paid-up, sub-licensable through multiple tiers and freely transferable right to copy, use, reproduce, distribute, publish, translate, modify, create derivative works of, publicly display, sell, transfer, license, edit, modify, transmit, broadcast, make publicly available and otherwise exploit the User Content on the Tabulous Platform as well as on and through third-party distribution channels selected by Tabulous, including without limitation for promoting, advertising, redistributing and making available the User Content and/or the Tabulous Website or overall Tabulous Platform, in any media formats, media channels or medium now or hereafter devised, in whole or in part, for any purposes. In addition, you grant Tabulous the right to display, reproduce and otherwise use the User Content, as well as Your name and/or professional name, Your submitted profile photo or other submitted license, and/or Your submitted biographical information to market and promote the availability of Your User Content and/or Tabulous Products embodying Your User Content, including in conjunction with other users and other Tabulous Products via any technology or medium now known or hereafter created, including through the Tabulous Platform and Tabulous Services.
c) Removal of Your Content. Tabulous reserves the right, subject to Tabulous’s sole and absolute discretion, to remove all or any part of Your User Content from the Tabulous Platform, with or without notice to You. In addition, Tabulous shall have the right, but is not obligated to make use of Your User Content in any way.
d) You are Responsible for Your Content. YOU ARE SOLELY RESPONSIBLE FOR YOUR CONTENT AND THE CONSEQUENCES OF SUBMITTING IT. You hereby acknowledge that the Tabulous Website and/or Platform and the Tabulous Services are merely providing the user the technical means to produce and distribute its User Content. This specifically includes that You are responsible for and must obtain necessary legal basis when maintaining an Account and uploading User Content to the Tabulous Website according to relevant laws. Under no circumstances shall Tabulous assume any responsibility in the creation, arrangement, scheduling, display and promotion of User Content. Tabulous does not endorse any User Content or any opinion, recommendation, or advice expressed therein, and Tabulous expressly disclaims any and all liability in connection with User Content. You represent and warrant that: (1) You are the owner of or have obtained the necessary licenses, rights, permissions, consents and waivers to use and to authorize Tabulous to use and distribute Your User Content as necessary for Tabulous to exercise and exploit the rights and licenses granted by You to Tabulous pursuant to these Terms of Use; and (2) Your User Content does not and will not: (a) infringe or otherwise violate any third-party right, including any copyright, trademark, patent, trade secret, privacy right, right of publicity or personality, broadcasting right or any other intellectual property or proprietary right; (b) slander, defame, libel, invade or otherwise violate the right of privacy, publicity, personality or other rights of any person or entity; (c) contain any viruses, spyware, worms, or other malicious code or any content or file that provides a method to access to potentially infringing content outside of the Services; (d) violate any laws or regulations or contain any falsehoods or misrepresentations that could cause harm to Tabulous or any third-party; or (e) contain any content that is obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that is deemed a criminal offense. Tabulous reserves all rights and remedies against any users who breach these representations and warranties. Tabulous does not guarantee that any unauthorized copying, use, or distribution of Your User Content by third parties will not take place. To the furthest extent permitted by applicable law, You hereby agree that Tabulous shall not be liable for any unauthorized copying, use, or distribution of Your User Content by third parties and release and forever waive any claims You may have against Tabulous for any such unauthorized copying or usage of Your User Content, under any theory.
6) PURCHASING A PRODUCT ON TABULOUS
a) How to Purchase. Users can purchase Tabulous Products on the Tabulous website using a valid credit card, PayPal system, or other agreed upon terms to facilitate payment. The price You pay is fixed at the time of ordering and such order cannot be cancelled once it has been submitted. If you wish to purchase any product or service made available through the Service ("Purchase"), you may be asked to supply certain information relevant to your Purchase including, without limitation, your credit card number, the expiration date of your credit card, your billing address, and your shipping information.
b) Customer Responsibility. It is the customer’s responsibility to ensure they provide accurate profile and payment information in order to avoid any delay in their purchases. You represent and warrant that: (i) you have the legal right to use any credit card(s) or other payment method(s) in connection with any Purchase; and that (ii) the information you supply to us is true, correct and complete. Tabulous takes no responsibility for any Tabulous Product(s) a customer does not receive because of errors in the information given to Us. We do not warrant, endorse, make representations about or recommend User Content offered or submitted by any User.
7) PAYMENT
The service may employ the use of third-party services for the purpose of facilitating payment and the completion of Purchases. By submitting your information, you grant us the right to provide the information to these third parties subject to our Privacy Policy.
Where a User provides payment to Tabulous through PayPal or Braintree (or similar platform), and that amount of money is subsequently taken from Tabulous due to a chargeback, credit card cancellation, PayPal dispute, or other action that is the fault of the User, Tabulous shall be entitled to recover that amount from the User. Users may, of course, bring a dispute in accordance with the “Forum of Dispute” provisions of this Agreement.
Tabulous may, from time to time, provide discounts, coupons, or other promotions. Tabulous may refuse to provide such discounts for any reason including, but not limited to, fraud, mistake on the part of our publication of information, actual or expected financial hardship, sale of all or part of our business, or any other reason.
8) YOUR RESPONSIBILITIES
You alone are responsible for Your conduct while using Tabulous Services, Tabulous Platform and/or Tabulous Products, and/or when You submit Your User Content to Us. To keep Tabulous Services and Tabulous Platform accessible for all users, You agree to respect the right of other users of the community, including as described in these Terms. To protect Our users and contributors from Prohibited Activity, as described below, Tabulous reserves the right to take appropriate actions, including by restricting the frequency of communications a user may send in a certain time period, or reviewing, editing, or removing User Content which in Our sole and absolute judgment violates any of these Terms. To protect the integrity of the Tabulous Platform and Tabulous Services, Tabulous reserves the right to block users from certain IP addresses from accessing the Tabulous Platform and Tabulous Services for any violation of these Terms.
“Prohibited Activities” means each and every prohibited action set forth in this section. To keep Tabulous Platform and Tabulous Services safe and accessible, in connection with Tabulous Platform and Tabulous Services, You warrant and covenant that You shall not use the Tabulous Services or the Tabulous Platform:
Tabulous reserves the right to suspend, discontinue or modify any aspect of the Services at any time, including the right to discontinue fully or partially the display of any User Content or linked or embedded content, and to prevent access to the Tabulous Website or any User Content from specific territories (geo-blocking).
9) TERM AND TERMINATION
a) Term. These Terms are effective beginning when You accept the Terms or first access or use the Tabulous Services, and end when terminated as described below. You may terminate Your account with these Terms at any time by sending an email to hello@tabulous.xyz or use any termination functionality that may be offered through the Services. Tabulous may, at its sole discretion, terminate these Terms and/or suspend or terminate Your access to the Tabulous Services, at any time for any reason or no reason, with or without notice, to the fullest extent permitted by applicable law.
b) Termination. If You violate any provision of these Terms, Your authorization to access the Tabulous Services and these Terms may automatically terminate. We may also change, suspend, or discontinue any aspect of the Tabulous Services at any time. Upon termination of these Terms for any reason, all of Your User Content may be made inaccessible via the Service although copies of Your User Content may remain stored on back-up storage media maintained by or for Us. You grant Us a royalty-free license to retain such back-up copies of Your Content on storage media maintained by or for Us. If You stop using the Services but keep Your User Content on or available through the Tabulous Services, then these Terms shall continue to apply in full force and effect for so long as any of Your User Content is available on or through the Tabulous Services. The following Sections, and any other term reasonably understood to be intended to survive termination, shall survive any termination of these Terms: 1, 3, 5, 8, 9(b), 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 20.
10) COMMUNICATIONS FROM TABULOUS AND OTHERS
By accessing or using Tabulous Services, Tabulous Platform, and/or Tabulous Products, You consent to receive communications from other customers, and Tabulous through the Tabulous Services and/or Tabulous Platform, or through any other means such as emails or push notifications. These communications may promote Tabulous, or businesses listed on Tabulous and may be initiated by Tabulous, businesses listed on Tabulous, or other customers.
You can opt-out of certain communications, and We have provided the opt-out mechanisms in Our Privacy Policy.
11) INTELLECTUAL PROPERTY AND OWNERSHIP
a) Tabulous Intellectual Property Rights. Except for third-party licensors and Your User Content (which is subject to the licenses You grant to Tabulous), Tabulous owns all components of the Tabulous Services, Tabulous Platform, and/or Tabulous Products, including derivative works created from Your User Content, graphics, text, designs, and all other elements and components of the Tabulous Services. You acknowledge that all copyrights and other intellectual property rights related to the aforementioned Tabulous Services, Tabulous Platform, and Tabulous Products are owned, as between You and Tabulous, solely and exclusively by Tabulous to the full extent permitted, and are protected under the United States Copyright Act, international copyright laws, and all other applicable laws. You may not copy, reproduce, distribute, publish, display, modify, create derivative works, transmit or in any way use or exploit any Tabulous Products, in whole or in part without Tabulous’s express prior written consent. Furthermore, Tabulous owns trademarks, service marks, and trade names (the “Marks”) throughout the world associated with the Tabulous Services, Tabulous Platform, and/or Tabulous Products, which are protected by law. As such, You shall not use or exploit any of the Marks in whole or in part except as expressly authorized by Tabulous. Except as expressly and unambiguously provided herein, We do not grant You any express or implied rights, and all rights in and to the Site and the Service are expressly retained by Tabulous, whether known or yet to be known.
“Tabulous” is a trademark used by us to uniquely identify our Site, Service, and business. You agree not to use this phrase anywhere without our prior written consent. Additionally, you agree not to use our trade dress, or copy the look and feel of Our website or its design, without Our prior written consent. You agree that this paragraph goes beyond the governing law on intellectual property law, and includes prohibitions on any competition that violates the provisions of this paragraph, including starting your own music-related learning platform.
b) Your Intellectual Property. As between Tabulous and You, all copyright and other intellectual property rights in and to Your User Content shall be owned by You. For avoidance of doubt, any and all Tabulous Products that are created will be owned solely by Tabulous and You have no rights to such Tabulous Products, other than the rights expressly granted herein.
c) Third-Party Copyright. We respect the intellectual property rights of others. It is our policy to respond to any claim that Content posted on the Service infringes on the copyright or other intellectual property rights ("Infringement") of any person or entity.
If you are a copyright owner, or authorized on behalf of one, and you believe that the copyrighted work has been copied in a way that constitutes copyright infringement, please submit your claim via email to hello@tabulous.xyz, with the subject line: "Copyright Infringement" and include in your claim a detailed description of the alleged Infringement as detailed below, under "DMCA Notice and Procedure for Copyright Infringement Claims"
You may be held accountable for damages (including costs and attorneys' fees) for misrepresentation or bad-faith claims on the infringement of any Content found on and/or through the Service on your copyright.
DMCA Notice and Procedure for Copyright Infringement Claims
You may submit a notification pursuant to the Digital Millennium Copyright Act (DMCA) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
You can contact our Copyright Agent via email at hello@tabulous.xyz.
12) PRIVACY
For information about Tabulous’s collection and use of Your information, please read Our Privacy Policy, the terms of which are incorporated herein by reference.
13) FEEDBACK SUBMISSIONS AND CUSTOMER SUPPORT
We welcome Your feedback. However, You agree that Tabulous is free to use any comments, information, ideas, concepts, reviewers, techniques, or any other material contained in any communication You may send to Us, worldwide and in perpetuity without acknowledgment, compensation, or payment to You in any manner and for any purpose, including to improve Tabulous Services and create other products and services. If You need assistance or have questions about Your Account, You may contact Us at hello@tabulous.xyz.
14) THIRD-PARTY SITES
The Tabulous Website and/or Platform may contain links to websites or services operated, owned or controlled by other people or companies, (collectively "Third-party Services"). Third-party Services may have their own terms of use and privacy policy or no terms of use or privacy policy at all. Tabulous does not endorse any such Third-party Services or the information, material, products, or services contained on or accessible through Third-party Services. Access and use of Third-party Services, including the information, material, products, and services on or available through Third-party Services solely at the User’s own risk.
15) DISCLAIMERS OF WARRANTIES, REPRESENTATIONS, LIMITATIONS OF LIABILITY AND INDEMNIFICATION
You represent and warrant that You have read and understood these Terms, Tabulous’s Community Guidelines, and Tabulous’s Privacy Policy. If You use the Tabulous Platform, Tabulous’s Services, and/or Tabulous Products, and/or submit Your User Content outside of the United States of America, You represent that You are allowed to access and use the Tabulous Platform, Tabulous Services, and/or Tabulous Products, and/or submit Your User Content in that country.
YOU AGREE THAT YOUR USE OF THE TABULOUS SERVICES, TABULOUS PLATFORM, AND TABULOUS PRODUCTS IS AT YOUR OWN RISK. TABULOUS SERVICES, TABULOUS PLATFORM, AND TABULOUS PRODUCTS ASSOCIATED THEREWITH, OR ANY OTHER FEATURES OR FUNCTIONALITIES ASSOCIATED WITH THE SITE, ANY RELATED SOCIAL MEDIA PLATFORMS OR MOBILE APPLICATIONS, AND/OR TABULOUS PLATFORM ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. TABULOUS DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SITE, SOCIAL MEDIA PLATFORMS, MOBILE APPLICATIONS, PLATFORM, CONTENT, AND SERVICE WILL BE UNINTERRUPTED, FREE OF VIRUSES AND OTHER HARMFUL COMPONENTS, ERROR-FREE OR RELIABLE EXPORTED CONTENT MAY CONTAIN THIRD-PARTY CONTENT, INCLUDING CONTENT THAT HAS NOT BEEN PROPERLY LICENSED AND/OR INFRINGES ON ANOTHER’S RIGHTS, SUCH AS COPYRIGHTS. THE RISK OF ANY AND ALL LOSS OR DAMAGE OF ANY KIND FROM THIRD PARTY CONTENT CONTAINED WITHIN EXPORTED CONTENT RESTS WITH YOU. TO THE FULLEST EXTENT PERMITTED BY LAW, TABULOUS, NEITHER EXPRESSLY NOR IMPLICITLY, MAKES ANY REPRESENTATIONS OR WARRANTY REGARDING THE RIGHTS TO USE THE EXPORTED CONTENT. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU USE EXPORTED CONTENT AT YOUR OWN RISK, AND YOU ASSUME THE RESPONSIBILITY FOR THE RESULTS.
YOU AGREE THAT TABULOUS SHALL NOT BE RESPONSIBLE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE, OR ILLEGAL CONTENT OR CONDUCT OF ANY THIRD-PARTY OR ANY INFRINGEMENT OF ANOTHER’S RIGHTS. BECAUSE THE LAWS OF SOME JURISCTIONS MAY NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED OR STATUTORY WARRANTIES, THE ABOVE EXCLUSIONS WILL APPLY TO YOU TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, IN NO EVENT SHALL TABULOUS OR ANY OF ITS SHAREHOLDERS, DIRECTORS, OFFICERS, AGENT, SUBSIDIARES OR EMPLOYEES BE LIABLE (JOINTLY OR SEVERALLY) TO YOU FOR PERSONAL INJURY, OR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER. BECAUSE THE LAWS OF SOME JURISDICTIONS MAY NOT ALLOW MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, LOSSES OR LIABILITY, THE ABOVE EXCLUSIONS WILL APPLY TO YOU TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
YOU SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS TABULOUS AND TABULOUS’S SHAREHOLDERS, OFFICERS, DIRECTORS, LICENSEES, SUBLICENSEES, CUSTOMERS, USERS, SUBSIDIARIES, EMPLOYEES AND AGENTS FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, DAMAGES, EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS) AND OTHER LOSSES ARISING OUT OF OR IN ANY WAY RELATED TO YOUR BREACH OR ALLEGED BREACH OF ANY PROVISION CONTAINED IN THESE TERMS; YOUR UNAUTHORIZED USE/ACCESS OF THE TABULOUS PLATFORM, AND/OR TABULOUS SERVICES (INCLUDING YOUR USE OF TABULOUS PRODUCTS); AND YOUR USER CONTENT. TABULOUS RESERVES THE RIGHT, AT OUR OWN EXPENSE, TO EMPLOY SEPARATE COUNSEL AND ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU.
EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE UNDER ANY CIRCUMSTANCES (INCLUDING CIRCUMSTANCES INVOLVING TERMINATION), WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE, TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, STATUTORY OR EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING DAMAGES FOR LOSS OF PROFITS, ANY OVERHEAD EXPENSES, OR COMMITMENTS TO THIRD PARTIES.
16) GOVERNING LAW AND JURISDICTION
This Agreement shall be exclusively interpreted, construed and enforced under California (U.S.A.) law without reference to its choice of law rules and, if any federal right violation is alleged, the laws of the United States of America. The United Nations Convention on Contracts for Sale of International Goods does not apply to these Terms. Subject to Section 17 (Mandatory Arbitration, Class Action Waiver, And Opt-Out), venue for any court action arising out of or relating to this Agreement shall be exclusively brought in the appropriate state court located in the City and County of San Francisco or any federal court in the Northern District of California, and You and Tabulous irrevocably consent to the personal jurisdiction of such courts for any permitted court action on any obligation hereunder.
17) MANDATORY ARBITRATION, CLASS ACTION WAIVER, AND OPT-OUT
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
a) Application. You and Tabulous acknowledge and agree that this Agreement affects interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section 17 is intended to be interpreted broadly and governs any and all disputes between Us including claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before this Agreement or any prior agreement (including claims related to advertising); and claims that may arise after the termination of this Agreement. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
b) Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. If You have any dispute with Us, You agree that before taking any formal action, You will contact Us at hello@tabulous.xyz and provide a brief, written description of the dispute and Your contact information (including Your username, if Your dispute relates to an account). Except for intellectual property and small claims court claims, the Parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with Tabulous, and good faith negotiations shall be a condition to either Party initiating a lawsuit or arbitration.
c) Binding Arbitration. If the Parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole and exclusive means to resolve claims, (except as provided in Section 17(h) below) subject to the terms set forth below. Specifically, all claims arising out of or relating to this Agreement (including this Agreement’s formation, performance, and breach), the Parties’ relationship with each other, and/or Your use of Tabulous Services, Tabulous Platform, and/or Tabulous Products shall be finally settled by binding arbitration administered by the JAMS Comprehensive Arbitration Rules & Procedures (“JAMS”). The JAMS rules shall govern payment of all arbitration fees. Tabulous shall pay all arbitration fees for claims less than $75,000.
d) Arbitrator’s Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement including any claim that all or any part of this Agreement is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the Parties and may be entered as a judgment in any court of competent jurisdiction.
e) Filing a Demand. To start an arbitration, You shall do the following: (i) Write a demand for arbitration (“Demand”) that (a) briefly explains the dispute, (b) lists Your and Tabulous’s names and addresses, (c) specify the amount of money in dispute, if applicable, (d) identify the requested location for a hearing if an in-person hearing is requested, and (e) state what You want in the dispute; (ii) Send one copy of the Demand to JAMS, along with a copy of these Terms and the filing fee required by JAMS; and (iii) Send one copy of the Demand for Arbitration to Us at hello@tabulous.xyz.
f) The Parties understand that, absent this mandatory arbitration provision, the Parties would have the right to sue in court and have a jury trial. The Parties further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. If You are a resident of the United States, arbitration may take place in the county where You reside at the time of filing, unless You and We both agree to another location or telephonic arbitration. For individuals residing outside the United States, arbitration shall be initiated in San Francisco County, California, United States, and You and Tabulous agree to submit to the personal jurisdiction of any federal or state court in San Francisco County, California, United States, in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
g) Class Action Waiver. The Parties further agree that the arbitration shall be conducted in the Party’s respective individual capacities only and not as a class action or other representative action, and the Parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND TABULOUS 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 PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
h) Exception for Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the Parties’ decision to resolve all disputes through arbitration, either Party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“Intellectual Property Rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either Party may also seek relief in small claims court in San Francisco, California for disputes or claims within the scope of that court’s jurisdiction.
i) 30-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of Your decision to opt out to hello@tabulous.xyz with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within 30 days of Your first use of the Service or within 30 days of changes to this section being announced on the Site or Platform. Otherwise You acknowledge and agree to be bound to arbitrate disputes in accordance with the terms of Section 17. If You opt out of these arbitration provisions, Tabulous also shall not be bound by them
j) Changes to this Section. Tabulous may provide thirty (30) days’ notice of any changes to this section by posting on the Services, Website, or Platform. Amendments will become effective thirty (30) days after they are posted on the Tabulous Services, Platform, and/or Site or sent to You by email. Changes to this section shall otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on “Changes to this Section” are not enforceable or valid, then this subsection shall be severed from the section entitled Mandatory Arbitration and Class Action Waiver, and the court or arbitrator shall apply the first Mandatory Arbitration and Class Action Waiver section in existence after You began using the Tabulous Services, Tabulous Platform, and/or Tabulous Products.
k) Survival. This Mandatory Arbitration and Class Action Waiver section shall survive any termination of Your use of the Tabulous Services, Tabulous Platform, and/or Tabulous Products.
l) Revocation of Consent. We may revoke our consent for Your use of Our intellectual property, or any other permission granted to You under this Agreement, at any time. You agree that if we so request, You must take immediate action to remove any usage of Our Intellectual Property that You may have engaged in, even if it would cause a loss to You.
18) SEVERABILITY. If a court of competent jurisdiction finds any provision of this Agreement is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall remain in full force and effect as if such invalid, illegal, or unenforceable provision had never been included.
19) RELATIONSHIP OF THE PARTIES. Nothing in this Agreement establishes any relationship of partnership, joint venture, employment, franchise or agency between You and Tabulous. You do not have the power to bind Tabulous or incur obligations on Tabulous’s behalf without Tabulous’s prior written consent. Tabulous does not have the power to bind You or incur obligations on Your behalf without Your prior written consent (including consent given through the Site or Tabulous Platform).
20) MISCELLANEOUS. This Agreement, including its Terms: (i) are drafted and shall be interpreted in the English language; (ii) shall be construed fairly with no inference drawn against the drafting party; (iii) use, though strictly for convenience, various titles and headings which shall not affect interpretation of this Agreement; (iv) set forth the Parties’ entire agreement and understandings relating to the subject matter herein and merges and supersedes all of the Parties’ prior agreements, writings, commitments, discussions and understandings; (v) any right or obligation set forth in these Terms can only be amended, modified, or waived in a writing signed by Tabulous; and (vii) shall bind (and inure to the benefit of) the Parties, and the Parties’ respective heirs, approved assigns, successors-in-interest, and legal representatives (subject to any and all assignment restrictions set forth herein). When used in this Agreement, “including” or “include” shall be deemed to mean “including, but not limited to,” regardless whether such term is initially capitalized and notwithstanding any conflicting provision of these Terms. You agree that We are not responsible to You for anything that We may otherwise be responsible for, if it is the result of events beyond Our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, unavailability of payment processors, failure or shortage of infrastructure, shortage of materials, or any other event beyond Our control. YOU EXPRESSLY REPRESENT THAT YOU HAVE: (A) READ AND UNDERSTOOD THIS AGREEMENT AND AGREE TO ALL OF ITS TERMS AND CONDITIONS; (B) INDEPENDENTLY EVALUATED THE DESIRABILITY OF ENTERING INTO THIS AGREEMENT AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH HEREIN; AND (C) BEEN AFFORDED THE OPPORTUNITY TO SEEK THE ADVICE OF LEGAL COUNSEL WITH REGARDS TO YOUR RIGHTS AND OBLIGATIONS SET FORTH IN THIS AGREEMENT AND HAVE EITHER SOUGHT OR REFUSED SUCH COUNSEL.
21) California Users and Residents.
Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about Tabulous must be addressed to our agent for notice and sent via certified mail to that agent. For our agent’s most up-to-date contact information, please contact us at hello@tabulous.xyz.
Lastly, California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
22) Company Information.
Tabulous is owned and operated by Tabulous LLC, a limited liability company formed and doing business in the State of ___________. Any service of legal process should, unless otherwise required or permitted by this Agreement, our Privacy Policy, or any applicable laws, be sent via certified mail to our agent for service. For our most recent agent for service’s information, please search for our corporate information at the official website of the ____________ Secretary of State.