Dialup Terms of Service
The Dialup mobile application (the “App”) and the website (collectively, the “Services”) are owned and operated by Dialup, Inc. (“Dialup,” “we,” or “us”) and are accessed by you under the Terms of Service described herein (“Terms of Service” or “Terms”). Please read these Terms of Service carefully before using the Services. By accessing or using any part of the Services, you agree to become bound by these terms and conditions. If you do not agree to all these terms and conditions, then you may not access the App or use the Services and please refrain from doing so. Nothing in these Terms shall be deemed to confer any third party rights or benefits.
PLEASE READ THESE TERMS CAREFULLY. THESE TERMS SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SERVICES AVAILABLE BY DIALUP. PLEASE BE AWARE THAT THESE TERMS OF SERVICE, AS SET FORTH BELOW, CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND DIALUP HAVE AGAINST EACH OTHER ARE RESOLVED. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE YOU TO SUBMIT CLAIMS THAT YOU HAVE AGAINST DIALUP TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT CONTAINED IN THESE TERMS: (I) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST DIALUP ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (II) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION PROVISIONS SET FORTH IN THESE TERMS COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING CLASS ACTION LITIGATION. PLEASE SEE SECTION THE ARBITRATION AGREEMENT SPECIFICALLY FOR MORE INFORMATION REGARDING THESE ARBITRATION PROVISIONS, INCLUDING THE ARBITRATION PROVISIONS’ IMPACT ON THE PENDING CLASS LITIGATION AND HOW TO OPT OUT OF ARBITRATION. THE TERMS OF SERVICE LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE
Changes to These Terms
We may make minor changes or modifications to portions of these Terms at any time, including when there are changes in our services, technology, regulation or for other reasons, provided that we will notify you of any material changes in accordance with the terms of this section. If we do, we will provide notice by posting the updated Terms on our website and changing the “Last Updated” date above. Any amended Terms will become effective no earlier than 14 days after they are posted and will apply prospectively to you use of the Services after the changes become effective, except that changes addressing new functions of our Services or changes made for legal reasons may be effective immediately. Your continued use of our Services following the effective date of these changes will constitute your acceptance of such changes. If you do not agree to any amended Terms, you will need to discontinue using our Services. However, with respect to and not limited to, material updates, or updates that may affect your privacy, personal data, fees due or usage rights, we will provide you with an email sent to your most current email address on file, with a link to the updated Terms, and a brief explanation in the body of the email that explains the changes to these Terms. You must affirmatively consent to the new, updated Terms prior to your continued use of the Services.
Accessing and Using The Services
Our Services are designed to pair users for voice chats. Please review our Support Page for additional description of the features and functionalities of our Services.
You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to immediately notify us of any unauthorized use of your password or account or any other breach of security, and ensure that you exit from your account at the end of each session when accessing our Services. Except where prohibited by law, we will not be liable for any loss or damage arising from your failure to comply with this section.
Modifications to Services
We may modify or discontinue, temporarily or permanently, our Services or any part of our Services upon notice to you, sent to the latest email address you have provided to us through the Services. You agree that , except where prohibited by law, we will not be liable to you or to any third party for any modification, suspension or discontinuance of our Services.
Usage and Storage
You acknowledge that we may establish general practices and limits concerning use of our Services, including the maximum period of time that a user can retain data or other content using our Services and the maximum storage space that will be allotted on our servers on your behalf
Mobile Application, Specifically
If you have elected to download our App, we hereby grant you a limited, non-transferable, revocable license to use the object code of such software within the App on any mobile device that you own or control that such App is authorized to operate on (as determined by us in our sole discretion) and is permitted by this section. The App is licensed, not sold, to you for use only under these Terms. Dialup reserves all rights, title and interest not expressly granted to you. Nothing herein allows you to use the App on a device that you do not own or are not authorized to control.
Furthermore, with respect to any App accessed through or downloaded from an App Store such as Google Play or the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application: (1) on a product that runs the operating system for which it was intended and (2) as permitted by the “Usage Rules” set forth in the corresponding App Store. Use of the App from a third party App Store is also subject to the provisions of Third Party Links & App Store, as described herein.
Our Services, specifically the App, are available via a mobile device, including the ability to share content to the Services using a mobile device, the ability to browse the Services from a mobile device and the ability to access certain features through the App downloaded and installed on a mobile device. To the extent you access our Services through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain mobile services may be prohibited or restricted by your carrier, and not all mobile services may work with all carriers or devices. By using our App, you agree that we may communicate with you by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of our App may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your account information to ensure that your messages are not sent to a person that acquires your old number.
You may not utilize the Services for any illegal or fraudulent purposes. You are solely responsible for all code, video, images, information, conversations, data, text, software, music, sound, photographs, graphics, messages or other materials that you upload, share, publish or display or email or otherwise use via our Services. This section sets forth certain examples of the kind of content and/or use that is illegal or prohibited. We reserve the right to investigate and take appropriate legal action against anyone who, in our sole discretion, violates this section, including without limitation, suspending or terminating your account and reporting you to the law enforcement authorities. You agree to not use our Services to: upload or transmit any content that
- infringes any intellectual property or other proprietary rights of any party;
- you do not have a right to upload under any law or under contractual or fiduciary relationships;
- contains software viruses or any other harmful computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- poses or creates a privacy or security risk to any person;
- constitutes unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation;
- is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, nude, partially nude, or sexually suggestive, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable;
- or, in our sole judgment, is objectionable or that restricts or inhibits any other person from using or enjoying our Services, or which may expose us or our users to any harm or liability of any type;
- create a username for the purpose of preventing others from using that handle, sell or buy usernames, or impersonate another person or entity in a manner that is intended to or does mislead, confuse or deceive others, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- interfere with or disrupt our Services or servers or networks connected to our Services, or disobey any requirements, procedures, policies or regulations of networks connected to our Services;
- violate any applicable local, state, national or international law, or any regulations having the force of law;
- solicit personal information from anyone under the age of 18;
- promote suicide, self-harm, self-mutilation or eating disorders;
- harvest or collect email addresses or other contact information of other users from our Services by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
- advertise or offer to sell or buy any goods or Services for any business purpose that is not specifically authorized by us;
- further or promote any criminal activity or enterprise or provide instructional information about illegal activities; and/or
- share content (text, image, audio) that implicitly or explicitly associates the user with, or represents promotion of, celebration with violent extremist ideologies, groups, and tactics. We acknowledge that there is no universal definition of terrorism. For the purposes of our Services, we will consider terrorist content to be material posted by, or in, support of organizations included on the Consolidated United Nations Security Council Sanctions List, in addition to country/region-specific sanctions list; obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through our Services and we may, in our sole discretion, remove any content that we believe may constitute or otherwise be considered to be terrorist content.
In connection with your use of our Services you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by us from accessing our Services (including by blocking your IP address or your associated phone number), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address).
Export Controls; International Use
Unless otherwise expressly authorized in these Terms or in our Services, you agree, except where expressly permitted by applicable law, not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of our Services, use of our Services, or access to our Services.
Intellectual Property Rights
Services Content, Software and Trademarks
You acknowledge and agree that our Services may contain content or features (“Services Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by us, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on our Services or the Services Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below under “User Content Transmitted Through the Services”) that you legally upload to our Services. Any use of our Services or the Services Content other than as specifically authorized in these Terms is strictly prohibited. The technology and software underlying our Services or distributed in connection therewith are the property of us, our affiliates and our partners (the “Software”). We may assign its rights and obligations under these Terms, in whole or in part, to any party at any time without any notice. You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Services without first obtaining our express, written consent thereto. Any rights not expressly granted herein are reserved by us.
Our name and logos are our trademarks and service marks (collectively the “Trademarks”). Other product and service names and logos used and displayed via our Services may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to us. Nothing in these Terms or our Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Trademarks displayed on our Services, without our prior written permission in each instance. All goodwill generated from the use of Trademarks will inure to our exclusive benefit.
User Content Transmitted Through the Services
With respect to the content or other materials you upload through our Services or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading any User Content you hereby grant and will grant us and our affiliated companies and successors and assigns, where applicable, a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable (through multiple tiers), perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of our Services in any form, medium or technology now known or later developed, including allowing such information to be shared with or by other users. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about our Services, submitted by you to us are non-confidential, and we will be entitled to the unrestricted use and dissemination of these submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that we may preserve content and may also disclose content, including without limitation, your User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: comply with legal process, applicable laws or government requests; enforce these Terms; respond to claims that any content violates the rights of third parties; or protect the rights, property, or personal safety of us, our users and the public. You understand that the technical processing and transmission of our Services, including your content, may involve transmissions over various networks; and changes to conform and adapt to technical requirements of connecting networks or devices.
Procedure for Alleging Copyright Complaints or Claims; DMCA
We respect the intellectual property of others, and expect our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify us of your infringement claim in accordance with the procedure set forth below.
We will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to us at[email protected] and/or mailed to P.O. Box 427211 San Francisco, CA 94142 with the subject line “DMCA Takedown Request”.
To be effective, the notification must be in writing and contain the following information: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; a description of the copyrighted work or other intellectual property that you claim has been infringed; a description of where the material that you claim is infringing is located on our service, with enough detail that we may find it on our service;your address, telephone number, and email address;a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send us a written counter-notice containing the following information: your physical or electronic signature; identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; a statement that you have a good faith belief that the content was removed or disabled as a result of a mistake or a misidentification of the content; and your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal courts located within San Francisco, California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If we receive a counter-notice, we will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at our sole discretion.
In accordance with the DMCA and other applicable law, we have adopted a policy of terminating, in appropriate circumstances and in our sole discretion, users who are deemed to be repeat infringers. We may also, in our sole discretion, limit access to our Services and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Third Party Materials; Third Party Links; App Store
Third Party Links.
The Services may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Where the Services contain links to Third-Party Links & Ads, these links are provided for your information and convenience only. We have no control over the contents of those sites or resources. Dialup does not review, approve, endorse or make any promises with respect to Third-Party Links & Ads. You use Third-Party Links & Ads at your own risk. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, not these Terms.
When you download our Apps, you may do so through a third party’s App Store. You acknowledge that these Terms are between you and us and not with the owner or operator of the App Store (“App Store Owner”). As between the App Store Owner and us, we, and not the App Store Owner, are solely responsible for the Services, including the App, the content, maintenance, support services, and warranty, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store Owner in connection with the Services, including the App. The following applies to any Mobile Application accessed through or downloaded from an App Store such as Google Play or the Apple App Store (the “App Store Sourced Application”):
- Your use of the App Store Sourced Application must comply with the App Store’s “Terms of Service” or equivalent terms;
- You acknowledge that the App Store Owner has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application;
- In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify the App Store Owner, and the App Store Owner will refund the purchase price for the App Store Sourced Application to you (if any) and to the maximum extent permitted by applicable law, the App Store Owner will have no other warranty obligation whatsoever with respect to the App Store Sourced Application;
- As between Dialup and the App Store Owner, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Dialup;
- You and we acknowledge that, as between Dialup and the App Store Owner, the App Store Owner is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to:
- product liability claims;
- any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and
- claims arising under consumer protection or similar legislation;
- You and we acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Dialup and the App Store Owner, Dialup, not the App Store Owner, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms; and
- You and we acknowledge and agree that the App Store Owner, and the App Store Owner’s subsidiaries, are third-party beneficiaries of these Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of these Terms, the App Store Owner will have the right (and will be deemed to have accepted the right) to enforce the terms of these Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
Finally, You represent and warrant that 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 you are not listed on any U.S. Government list of prohibited or restricted parties. Without limiting any other terms in these Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
Indemnity; Disclaimer; Limitation of Liability
Indemnity and Release
To the maximum extent permitted by law, you agree to release, indemnify and hold us and our affiliates and their officers, employees, directors and agents harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of our Services, any content, your connection to our Services, your violation of these Terms or your violation of any rights of another. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT WHERE PROHIBITED BY LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. We make no warranty that our Services will meet your requirements, that our Services will be uninterrupted, timely, secure, or error-free, that the results that may be obtained from the use of our Services will be accurate or reliable, or that the quality of any products, services, information, or other material obtained by you through the Services will meet your expectations.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT EXCEPT WHERE PROHIBITED BY LAW, WE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICES; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (V) ANY OTHER MATTER RELATING TO THE SERVICES. EXCEPT WHERE PROHIBITED BY LAW, IN NO EVENT WILL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID US IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE THOUSAND DOLLARS ($1,000). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.
NOTHING IN THESE TERMS SHALL LIMIT OR EXCLUDE OUR LIABILITY FOR: (i) DEATH OR PERSONAL INJURY RESULTING FROM OUR NEGLIGENCE OR THE NEGLIGENCE OF OUR EMPLOYEES, AGENTS OR SUBCONTRACTORS; (ii) FRAUD OR FRAUDULENT MISREPRESENTATIONS; OR (iii) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED BY APPLICABLE LAW.
You agree that we, in our sole discretion, may suspend or terminate your account (or any part thereof) or use of our Services and remove and discard any content within our Services (including any User Content), for any reason, with or without cause, including, without limitation, for lack of use or if we believe that you have violated or acted inconsistently with the letter or spirit of these Terms. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of our Services, may be referred to appropriate law enforcement authorities. You agree that any termination of your access to our Services under any provision of these Terms may be effected without prior notice, and acknowledge and agree that we may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or our Services.
Further, you agree that, except where prohibited by law, we will not be liable to you or any third party for any termination of your access to our Services.
Disputes with Other Users
You agree that you are solely responsible for your interactions with any other user in connection with our Services, and except where due to our gross negligence or willful misconduct, we will have no liability or responsibility with respect thereto. You understand and agree that when you interact with other users on or through the Services, including but not limited to, your partner, such other user may share information with you, and that we have no ability to monitor that information, nor do we endorse or condone any statements made on or through the Services that generates from your interactions with other users on the Services.
These Terms constitute the entire agreement between you and us and govern your use of our Services, superseding any prior agreements between you and us with respect to our Services. Both you and us acknowledge that neither you nor us has relied on any representation, undertaking or promise given by the other or be implied from anything said or written in negotiations between you and us except as expressly stated in these Terms.
You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and we agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within San Francisco, California. Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of our Services or these Terms must be filed within one year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms without our prior written consent, but we may assign or transfer these Terms, in whole or in part, without restriction. Notices to you may be made via either email or regular mail.
Notice for California Users
Under California Civil Code Section 1789.3, users from California are 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., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
You may contact us by email at [email protected].
Arbitration Agreement & Dispute Resolution
Please read this Arbitration Agreement carefully. It is part of your contract with Dialup and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Scope of Arbitration Agreement (“Arbitration Agreement”).
You acknowledge and agree that any dispute or claim relating in any way to your access or use of the Services or to any other aspect of your relationship with Dialup will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Dialup may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose before this or any prior Agreement.
NOW OR IN THE FUTURE, THERE MAY BE LAWSUITS AGAINST DIALUP ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS. SUCH CLAIMS, IF SUCCESSFUL, COULD RESULT IN SOME MONETARY RECOVERY TO YOU. THE EXISTENCE OF SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUITS DOES NOT MEAN THAT SUCH LAWSUITS WILL ULTIMATELY SUCCEED. BUT IF YOU AGREE TO ARBITRATION WITH DIALUP, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVERY MONETARY OR OTHER RELIEF UNDER SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUITS. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST DIALUP IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.
Arbitration Rules and Forum.
This Arbitration Agreement is governed by the Federal Arbitration Act in all respects. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, [include name and address of registered agent here.] The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. Payment of all filing, administration, and arbitration fees will be governed by the AAA’s rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Dialup will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum.
The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Dialup. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding on you and Dialup.
Waiver of Jury Trial.
YOU AND DIALUP EACH KNOWINGLY AND VOLUNTARILY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and Dialup are instead electing to have claims and disputes resolved by arbitration. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is limited. In any litigation between you and Dialup over whether to vacate or enforce an arbitration award, you and Dialup waive all rights to a jury trial, and elect instead to have a judge resolve the dispute.
Waiver of Class or Consolidated Actions.
ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Dialup is entitled to arbitration. Instead, all claims and disputes will then be resolved in a court as set forth in the applicable section of the Terms above.
You may opt out of this Arbitration Agreement. If you do so, neither you nor Dialup can force the other to arbitrate. To opt out, you must notify Dialup in writing no later than 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, Dialup username (if any), the email address you used to set up the Dialup account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. You must send your opt-out notice to:[email protected] and P.O. Box 427211 San Francisco, CA 94142. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with us.
This Arbitration Agreement will survive any termination of your relationship with Dialup.
To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Dialup agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in the applicable county within the State of California.
If you have any concerns about material which appears on or through these Services, please contact us at [email protected].
PLEASE PRINT A COPY OF THESE TERMS FOR YOUR RECORDS AND PLEASE CHECK BACK FREQUENTLY FOR ANY CHANGES TO THESE TERMS.