THESE TERMS INCLUDE A CLASS ACTION WAIVER AND AN ARBITRATION PROVISION THAT GOVERNS ANY DISPUTES BETWEEN YOU AND GORAILS.
- Acceptance. To use Hatchbox, you must agree to be unconditionally bound by these Terms. You accept the Terms by clicking to accept or agree to the Terms where this option is made available to you in any agreement or electronic form, or by visiting the Site or using another Service. If you are using or accessing Hatchbox on behalf of a company or other entity, you represent, agree, and warrant that you are authorized to act on behalf of the entity and to bind such entity to these Terms. You must be of legal age and capacity to form a binding contract to accept the Terms. If you do not agree with any of these Terms, do not access the Site or use Hatchbox.
- Eligibility. To use Hatchbox, you must be (a) at least 18 years of age or (b) at least 16 years of age and your legal guardian must give GoRails prior express written consent to your use of Hatchbox, as demonstrated by your legal guardian accepting these Terms on your behalf. By using Hatchbox, you represent and warrant that you are of legal age to form a binding contract with us for yourself or your child and that you meet all of the foregoing eligibility requirements. You may not access or use Hatchbox if you are barred from receiving such services under applicable law or have previously been suspended or removed from any of Hatchbox. If you do not meet all of these requirements, you must not use Hatchbox.
- Services. The Services provide website visitors and registered users (" Users") access to learning materials and the tools to build, deploy, and manage Ruby and Rails based applications. As a User, you gain access to certain limited aspects of Hatchbox for free or you can subscribe to enhanced access and use of Hatchbox for the fee stated when you signup. Most of Hatchbox require registration and payment of a fee. GoRails reserves the right to suspend or terminate your use of Hatchbox at any time if we believe you have violated these Terms or any other agreement with us, or any of GoRail's policies or protocols.
- Registration. Anyone may visit the website and access some materials through Hatchbox, but to use many features of Hatchbox you must register as a User and create an account by selecting login credentials (username and password) and providing us with accurate contact information and other information about yourself. You agree (i) to provide correct, current and complete information as prompted by the account creation form, and maintain and update such information as needed to keep it correct, current and complete; (ii) register only once using a single username; (iii) not to do anything that might jeopardize the security of your account; and (iv) to notify us immediately of any unauthorized access to or use of your credentials or any other breach of security. You are responsible for maintaining the confidentiality of your login credentials and for all activities that occur on your account.
You agree to not (a) register on behalf of another person without the legal authority to do so; (b) register under the name of another person or under a fictional name or alias; (c) choose a username that constitutes or suggests an impersonation of any other person (real or fictitious) or entity or that you are a representative of an entity when you are not, or that is offensive; (d) choose a username for the purposes of deceiving or misleading our users and/or us as to your true identity; or (e) choose a username that incorporates a solicitation. You are strictly prohibited from sharing your login credentials with any third-party, or otherwise permitting a third-party to use Hatchbox via your account.
- License Grant. GoRails hereby grants you a limited, non-exclusive, nontransferable, non-sublicensable, revocable license to access, download, install, and use Hatchbox for your own personal, internal business and non-commercial purposes, subject to these Terms. The Services are licensed to you, not sold. Nothing in these Terms is intended to, or may be construed as, conferring by implication, estoppel, or otherwise any ownership, license, or other grant of right to any copyright, trademark, or other intellectual property of GoRails or any third-party, except as expressly provided in these Terms. We reserve all rights not expressly granted in these Terms.
- User Content. Users can use Hatchbox to build and deploy applications, upload, post, provide, publish, display, store, comment on, link to, or otherwise make available via Hatchbox media, materials, attachments, digital goods or services, or other content (" User Content"). You understand that any User Content you make available on Hatchbox may be viewed by and accessible to GoRails and other Users. You agree to provide support for your User Content. The User Content must not be stored in a data repository that would enable any third-party access. You must store all User Content in a manner which enables you to identify, segregate and selectively delete such User Content.
You may not build or post User Content that infringes others' intellectual property or proprietary rights. You must own all rights, title, and interest, including all intellectual property rights, in and to, the User Content you make available on Hatchbox. GoRails requires licenses from you for that User Content to operate Hatchbox. By posting User Content on Hatchbox, you grant GoRails a royalty-free, perpetual, irrevocable, non-exclusive, sublicensable, worldwide license to use, reproduce, distribute, perform, publicly display or prepare derivative works of your User Content.
If you make your User Content available to others, whether for free or on a purchase or subscription basis, you grant other Users a revocable, nontransferable, nonexclusive license to access, view information contained on, and interact with such User Content for the other User's personal, non-commercial use. If you access, purchase, or subscribe to another User's User Content: (i) you may not use such User Content for any commercial purpose or for any unlawful or wrongful purpose; (ii) you agree not to rent, retransmit, disclose, publish, sell, assign, lease, sublicense, market or transfer the User Content or any portion of it or use it in any unauthorized manner; and (iii) you agree to not copy, reverse engineer, translate, port, modify or make derivative works of any portion of the User Content without the User's express permission.
- Responsibility for User Content. You are solely responsible for your User Content, its features and functions, and how it is used by you and others. GoRails is not responsible for policing your use of Hatchbox or any User Content. GoRails does not and will not have any obligation to review User Content, and therefore we do not guarantee the accuracy, integrity, or quality thereof and we cannot assure you that harmful, inaccurate, deceptive, offensive, threatening, defamatory, unlawful, or otherwise objectionable User Content will not appear on Hatchbox. You understand and agree that any loss or damage of any kind that occurs as a result of the use of any User Content that you send, upload, download, stream, post, transmit, display, or otherwise make available or access through your use of Hatchbox, is solely your responsibility. Without limiting the foregoing, GoRails reserves the right to collect and store any User Content, as well as any files, documents, or data related thereto, uploaded or generated via Hatchbox on our information systems indefinitely in order to track and analyze work performed using Hatchbox, or for any other lawful purpose. To the extent permitted by law, GoRails reserves the right to review and remove any or all User Content in our sole discretion, in whole or in part. UNDER NO CIRCUMSTANCES WILL GORAILS BE LIABLE IN ANY WAY FOR ANY USER CONTENT POSTED ON OR MADE AVAILABLE THROUGH Hatchbox BY YOU OR ANY OTHER USER.
Any User Content, Feedback, or other posts to and through Hatchbox is subject to our approval. We may withhold such approval for any reason, including but not limited to, if we believe such post(s) may violate these Terms, any law, or the rights of any third party. We reserve the right to remove any posts to Hatchbox for any reason, but we have no obligation to police User activity.
- Acceptable Use of Hatchbox. You agree to not rent, retransmit, disclose, publish, sell, assign, lease, sublicense, market or transfer Hatchbox or any portion thereof (including our Content) or use it in any manner not expressly authorized by these Terms. You agree not to copy, reverse engineer, translate, port, modify, or make derivative works of any portion of Hatchbox. Tampering with Hatchbox, conducting fraudulent activities on Hatchbox and all other illegal activities are prohibited and may subject a user to legal action and/or termination of your access to Hatchbox.
You further agree not to (i) upload any User Content or other data that contains software viruses or is designed to interrupt, destroy, or limit the functionality of any equipment or services, or that contains other harmful, disruptive, or destructive files or content; (ii) use or attempt to use another user's account without authorization, or impersonate any person or entity; (iii) harvest, solicit, or collect information of other users for any reason whatsoever, including, without limitation, for sending unsolicited communications; (iv) post, advertise, or promote products or services commercially, or upload any content that is advertising, promotional material, junk mail, spam, or a contest or sweepstake, or that furthers or promotes criminal activity; or (v) use Hatchbox in any manner that, in our sole discretion, is objectionable or restricts or inhibits any other person from using or enjoying Hatchbox, or which may expose us or our users to any harm or liability of any type.
If you take any of the above actions or violate these Terms, we reserve the right to cancel your User registration, suspend or terminate your access to or use of Hatchbox, or take legal action.
- Prohibited Acts. You are strictly prohibited from violating or trying to violate our security features, such as by (i) accessing data not intended for you or logging onto a server or an account which you are not authorized to access; (ii) attempting to probe, scan, or test the vulnerability of a system or network or to breach security or authentication measures unless we expressly authorize that you do so in writing; (iii) attempting to interfere with service to any user, host, or network, such as by means of submitting a virus to the Site, overloading, "flooding," "spamming," "mail bombing," or "crashing"; or (iv) sending unsolicited email, including promotions and/or advertising of products or services forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting. You hereby agree not to use any device, software, or routine to interfere, or try to interfere, with the proper working of Hatchbox or any activity being conducted on Hatchbox. You further agree not to use, or try to use, any engine, software, tool, agent, or other device or mechanism (including browsers, spiders, robots, avatars, or intelligent agents) to navigate or search Hatchbox other than the search engine and search agents that we make available via Hatchbox and other than the generally available third-party web browsers.
If you violate our system or network security such violation will result in immediate account suspension or cancellation without a refund and the possibility that GoRails will impose fees, you may also face civil or criminal liability. We will investigate occurrences that may involve such violations. We may involve or cooperate with law enforcement authorities in prosecuting users who are involved in such violations.
- Billing and Payment. This Section 8 applies if your use of Hatchbox incurs a fee.
- Fees. You agree to pay the costs and fees for all subscriptions or purchases you make on Hatchbox, plus any applicable sales, use, excise, or other taxes (collectively, the " Fees"). Fee amounts are subject to change from time to time. You will pay any additional taxes as necessary to ensure that the net amounts received by GoRails after all such taxes are paid are equal to the amounts that GoRails would have been entitled to in accordance with these Terms as if the taxes did not exist.
- Payments are due upon invoicing. Service may be interrupted for payments that reach 10 days past due. If you do not pay on time or if we cannot charge the payment method you have on file for any reason, GoRails reserves the right to either suspend or terminate your access to paid features on Hatchbox. All Fees are in U.S. Dollars. Overdue accounts that are not collectable by GoRails may be turned over to an outside collection agency for collection PAID FEES ARE NONREFUNDABLE.
- Payment Method. You must maintain a valid payment method on file with us, which is securely stored and processed via a third-party PCI-DSS compliant payment processor. If your payment method is a credit card, we may seek pre-authorization of your account to verify that the credit card is valid and has the necessary funds or credit available to cover your Fees. You represent and warrant that the payment information you provide to us is accurate and you are using a form of payment that you are legally authorized to use. You agree that you are solely liable for any payment or credit card fraud, abuse or unauthorized use by you or others. GoRails is not responsible for any additional bank fees, interest charges, finance charges, over draft charges, or other fees resulting from charges billed by GoRails.
- Authorization. You agree that we may charge your paymentmethodonfilewith us for the Fees or other amountsduehereunder, as well as any sales and use taxes and any late fees or interest (as described below). If you select a subscription with automatically recurring payments, you authorize GoRails to periodically charge your payment method on a going-forward basis for all accrued sums and until cancellation of either the recurring payments or your account.
- Server Provider Fees. You agree that GoRails is not responsible for any additional fees charged to your credit card by third-party server providers such as DigitalOcean, Linode, Amazon, or Rackspace. You are solely responsible for any third-party server provider fees that you incur through your use of Hatchbox.
- Software Requirements. You must have a compatible computer or other electronic device, internet access, and the necessary minimum specifications (" Software Requirements") to use Hatchbox. The Software Requirements are listed on the relevant application page. Software may be upgraded from time to time to add support for new functions. The Services may request certain privacy permissions from time to time such as access to your geolocation or mapping applications, device camera or microphone, or other apps and associated features on your device. You acknowledge that the terms of agreement with your respective internet or mobile network provider will continue to apply while you use Hatchbox. Data and messaging charges may apply to your use of Hatchbox and you accept responsibility for any such charges that arise. If you are not the bill payer for the computer or electronic device being used to access Hatchbox, you will be assumed to have received permission from the bill payer for use of Hatchbox.
- Servers. To use most of Hatchbox you must have your own server. You are solely responsible for your own server, and your server is your responsibility. You are solely responsible for maintaining the security of your servers. GoRails shall have no liability for any security breaches or data breaches of User's servers, even if those servers were initially created and provisioned by GoRails. GoRails does not guarantee the security of any of User's servers, even if those servers were initially created and provisioned by GoRails. Users are solely responsible for the preservation of User Content which User saves onto its virtual server. Even with respect to User Content as to which User contracts for backup services provided by GoRails, GoRails shall have no responsibility to preserve User Content. GoRails shall have no liability for any User Content that may be lost
- Beta Versions. We may make versions of Hatchbox available for testing and evaluation purposes prior to their release to the general public (" Beta Versions"). Beta Versions are subject in all respects to these Terms, except that we may discontinue Hatchbox or your ability to use a Beta Version at any time, with or without notice and without further obligations to you. By participating in a Beta Version test, you consent to GoRails accessing all data, including your personal information, input or collected via your use of Hatchbox for GoRails to identify bugs, discrepancies, errors, or improvements in Hatchbox. You also understand and agree that we may contact you to learn more about your use of Hatchbox or related activities to improve Hatchbox. You agree to notify us of all comments or suggestions about Hatchbox, including without limitation any problems and ideas for improvements, which come to your attention during use of the Beta Version. By permitting you to access, download, install or use a Beta Version, we do not grant any additional right to you under any copyrights, patents, trademarks, or trade secret information. GoRails reserves the right to condition your access to and use of a Beta Version on your execution of a nondisclosure agreement.
- Contents and Ownership. Except as otherwise expressly indicated herein,GoRails owns all rights, title, and interest, including all intellectualproperty rights, in and to, Hatchbox and all elements and components (including without limitation all Feedback, images, illustrations, designs, photographs, video clips, text, graphics, icons, designs, software code, written information and screens appearing on Hatchbox, and other materials, as well as names, logos, taglines, trade dress, and other trademarks therein) on Hatchbox (the " Content" or " Contents"). The Contents are protected by U.S. and foreign copyright, trademark, trade dress, or other proprietary right laws and international conventions. Nothing in these Terms is intended to transfer to you any rights to the Contents or grant you any license to the Contents, except as specifically set forth in these Terms. Only a duly authorized officer of GoRails may grant permission or a license to use any of the Contents; any attempted grant or similar promise by anyone other than a duly authorized agent of GoRails is invalid.
- Copyright. You do not have permission to copy, reproduce, make derivative works from, distribute, republish, download, display, perform, post electronically or mechanically, transmit, record, or mirror any of the Contents without the prior written permission of GoRails. You may only display, download, and print in hard copy format the Contents for the purposes of using the Site as an internal or personal business resource.
- Trademarks. GoRails' registered and unregistered trademarks and trade dress, including names, logos, taglines, trade dress, and other trademarks, may not be copied, imitated, or used, whether in whole, partial or modified form, without the prior written permission of GoRails. You may not use any meta tags or any other hidden text utilizing an GoRails name, trademark, or product name without GoRails' prior written permission. Third-party trademarks and service marks used on Hatchbox are the property of their respective owners, and we use them with their consent. GoRails and the other licensors of the marks on the Site reserve all rights with respect to all Contents and all intellectual property.
- Feedback. While using Hatchbox, you may provide us certain materials, communications, suggestions, comments, improvements, ideas or other feedback related to Hatchbox (" Feedback"). You are solely responsible for your Feedback. You hereby grant to GoRails all rights, title, and interests in and to any Feedback. In the event this grant is not sufficient for us to fully realize and use the Feedback, you grant us a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use and incorporate into Hatchbox any of the Feedback. By providing Feedback, you are representing that the Feedback is not subject to any intellectual property claim by a third-party or any license terms which would require products or services derived from that Feedback to be licensed to or from, or shared with, any third-party.
- Support. GoRails may provide technical support, upgrades, or modifications of Hatchbox in GoRails' sole discretion. GoRails may cease providing technical support, upgrades, or modifications of Hatchbox at any time and for any reason without notice or liability to you. GoRails may release new versions of Hatchbox and require you to use the new version of Hatchbox. Your use of new releases or versions of Hatchbox will be acceptance of all modifications of Hatchbox. GoRails may, in our sole discretion, make specific instances or versions of Hatchbox available to you for use in connection with Hatchbox. We may terminate such access to Hatchbox, in whole or as to certain features, functions, or services thereof, for convenience, at any time.
- Compliance. You represent and warrant that (i) any information you submit to us is truthful and accurate; (ii) you will maintain the accuracy of that information; (iii) you have and will at all times maintain the right to provide all User Content provided by you hereunder; (iv) your User Content and any other materials you provide or submit to other Users or GoRails do not infringe the intellectual property or other rights of any third-parties or contain viruses, worms, malware or any other harmful scripts or code; and (v) your use of Hatchbox and its features does not violate any applicable law.
- Communications from GoRails. We may use your contact information you provide to us to communicate with you about your use of Hatchbox. For example, we may send you service announcements or administrative communications by email, phone, text, or other means. You understand that you receive these communications as part of your use of Hatchbox. We may send you marketing communications by email, mail, or other means in compliance with applicable law. As part of our policy to respect your privacy, we provide you the option of opting out from receiving marketing communications from us by following the instructions in our Privacy Notice. However, you will not be able to opt out from receiving service announcements and administrative messages.
- Data Security. Your network, operating system, and software and hardware of your web servers, databases, and computer systems (collectively " Systems") must be properly configured to securely use Hatchbox. Your User Content must use reasonable security measures to protect our Content and any elements or components of Hatchbox. You shall not architect, design, or select Systems in a manner to avoid these obligations. You must promptly report to GoRails at [email protected]any security deficiencies in, or intrusions into, your Systems that you discover. You will work with GoRails to correct any security deficiency and disconnect any intrusions or intruders as soon as practicable upon discovery of any such deficiency or intrusion. In the event of any security deficiency or intrusion involving Hatchbox or our Content, you will make no public statements without prior written and express permission from GoRails in each instance, unless otherwise required by law.
You hereby agree not to use any device, software or routine to interfere or try to interfere with the proper working of Hatchbox or any activity being conducted thereon. You further agree not to use or try to use any engine, software, tool, agent or other device or mechanism (including browsers, spiders, robots, avatars or intelligent agents) to navigate or search Hatchbox other than the search engine and search agents that we make available via Hatchbox and other than the generally available third-party web browsers. If you violate our system or network security, you may face civil or criminal liability. We will investigate occurrences that may involve such violations. We may involve or cooperate with law enforcement authorities in prosecuting users who are involved in such violations.
- Confidential Information. You agree that Hatchbox and GoRails Content are deemed to be our confidential information and you will maintain the same in strict confidence and not disclose the same to any third-party or use the same for any purpose other than your use of Hatchbox. To the extent that you retain any Content after the termination or expiration of the Terms, this paragraph will survive the termination or expiration of the Terms.
- Consent to Do Business Electronically. By using Hatchbox in any manner, registering as a User, or typing your name into any of our electronic forms and indicating your acceptance or submission of information by clicking a box, you affirmatively consent to (i) GoRails communicating with you electronically; (ii) receiving all applications, notices, disclosures and authorizations (collectively, " Records") from GoRails electronically; and (iii) entering into agreements and transactions using electronic Records and signatures. Please note that federal law treats electronic signatures as having the same legal force and effect as if they were signed on paper by hand, and online contracts have the same legal force as signing an equivalent paper contract in ink. You must have a computer or other web-enabled device, connection to the internet, an active email account, and the ability to receive and read PDF files to conduct business with us electronically. You agree to be responsible for keeping your own Records. You may print or download Records from the Site and keep them for your own reference. If you require assistance with your Records or if you wish to receive Records in paper format or to withdraw your consent to receiving electronic Records from us, please contact us at [email protected]. Agreements and transactions executed prior to this request will remain valid and enforceable.
- Copyright Policy** ; DMCA.**We respect the intellectual property rights of others and expect users of the Service to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to our designated copyright agent ("Copyright Agent"). Our designated Copyright Agent to receive notifications of claimed infringement is:
c/o Immix Law Group PC
600 NW Naito Pkwy, Ste G
Portland, OR 97209
If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, 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):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of 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 the service provider to locate the material;
- Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Void Where Prohibited. The Services are owned and operated in the United States. Not all of Hatchbox are available to all persons or at all locations. Access to Hatchbox may not be legal by certain persons or in certain countries. YOu are solely responsible for verifying that the laws of the country or state (or other applicable jurisdiction) from which you access HATCHBOX permit you to USE HATCHBOX. If you access Hatchbox from outside the United States, you do so on your own initiative and are responsible for compliance with local laws. We reserve the right to limit, at our sole discretion, the provision of any such Services to any person or in any location. Any offer of a Service in these Terms shall be deemed void where prohibited.
- Third-Party Content. The Services may include third-party content and/or hyperlinks to websites, resources, or content owned or operated by third-parties, over which we have no control (" Third-Party Content"). Third-Party Content available on Hatchbox is provided solely for your convenience. We are not responsible for the content of any Third-Party Content, nor do we make any representations about the content or accuracy of material on any other platforms. Inclusion of Third-Party Content on Hatchbox does not imply our approval or endorsement of the Third-Party Content. Please be aware that when you click on links that take you to external platforms or content, you do so at your own risk, and you will be subject to their privacy policies and practices and not ours. Any concerns regarding any such website, service, or resource should be directed to the respective third-party.
- Disclaimer of Warranties. YOUR USE OF HATCHBOX IS AT YOUR OWN RISK. GORAILS MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH HATCHBOX OR RELATING TO THE AVAILABILITY, QUALITY, RELIABILITY, SUITABILITY, TIMELINESS, TRUTH, ACCURACY OR COMPLETENESS OF HATCHBOX. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HATCHBOX IS PROVIDED TO YOU ON AN "AS IS," "AS AVAILABLE" AND "WHERE-IS" BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. GORAILS does not warrant that HATCHBOX will meet all of your requirements or that its operations will be uninterrupted or error free, or that any defect within Hatchbox will be corrected. No oral or written information, representation or advice given by GORAILS shall create a warranty without a writing signed by GORAILS EXPRESSLY CREATING such warranty.
- Indemnification. You agree to indemnify and hold GORAILS, our subsidiaries and our affiliates, and their respective MEMBERS, directors, SHAREHOLDERS, officers, agents, partners and employees, harmless from any loss, liability, cost, expense, claim, damages, or demand, including without limitation reasonable attorneys' fees, due or relating to or arising out of (i) your use of HATCHBOX in violation of THIS AGREEMENT, (ii) your breach of THESE TERMS, or (iii) any breach of your representations and warranties set forth in THESE TERMS.
- Limited Liability. GORAILS SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR USE OF HATCHBOX. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GORAILS BE LIABLE TO YOU FOR ANYINDIRECT,EXTRAORDINARY,EXEMPLARY,PUNITIVE,SPECIAL,INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE, HOWEVER ARISING, EVEN IF GORAILS KNOWS THERE IS A POSSIBILITY OF SUCHDAMAGE. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL GORAILS BE LIABLE TO YOU FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE AGGREGATE OF THE FEES PAID BY YOU TO GORAILS FOR HATCHBOX DURING THE THREE MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY OR, IF NO FEES WERE PAID DURING SUCH THREE MONTH PERIOD, ONE HUNDRED US DOLLARS ($100), IN EACH CASE, WHETHER OR NOT GORAILS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Class Action Waiver. You hereby waive any right to commence or participate in any class action lawsuit against GORAILS related to any claim, dispute or controversy, and, where applicable, you hereby agree to opt out of any class proceeding against GORAILS otherwise commenced ON OR AFTER THE EFFECTIVE DATE OF this AGREEMENT.
- Dispute Resolution. PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT CONTAINS A CLASS ACTION WAIVER, REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES
, AND CLAIMS, AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. You agree that any dispute, controversy or claim between you and GoRails arising out of or relating to these Terms, or the breach thereof, our provision of Hatchbox, your access to or use of Hatchbox, or any alleged violation of any federal, state, or local law, statute, or ordinance (each such dispute, controversy or claim, a " Dispute") will be governed by the procedure outlined below. In the event of any Dispute between the Parties concerning the terms and provisions of these Terms, the prevailing Party shall be entitled to collect from the other Party all costs incurred in such dispute, including reasonable attorneys' fees.
- Informal Dispute Resolution. We want to address your concerns without the necessity of a formal legal case. Before filing a claim against GoRails, you agree to try to resolve the Dispute informally by contacting [email protected]. GoRails will contact you by email as part of a good faith effort to resolve the Dispute informally. If a Dispute is not resolved within 30 days after submission, you or GoRails may bring a formal proceeding.
- Arbitration Agreement. You and GoRails each agree to resolve any Disputes through final and binding arbitration administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in St. Louis, Missouri, United States, or any other location we agree to. The AAA rules will govern payment of all arbitration fees. Notwithstanding the foregoing, either you or GoRails may assert claims, if they qualify, in small claims court in St. Louis, Missouri or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of Hatchbox, or infringement of intellectual property rights (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute resolution process described above.
- Class Action Waiver. You may only resolve Disputes with GoRails on an individual basis and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed under these Terms.
- Intellectual Property Disputes. Notwithstanding the Parties' decision to resolve all disputes through arbitration, either party may bring an action in state or federal court that only asserts claims for patent infringement or invalidity, copyright infringement, moral rights violations, trademark infringement, and/or trade secret misappropriation, but not, for clarity, claims related to the license granted to you for Hatchbox under these Terms. Either Party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.
- Limitation on Claims. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of Hatchbox must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever. To the extent that the arbitration agreement is not enforceable, each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in St. Louis, Missouri for resolution of any lawsuit or court proceeding permitted under these Terms.
- General Terms
- Relationship of Parties. No joint venture, partnership, employment, or agency relationship exists between you and GoRails as a result of these Terms or your use of the Services.
- Assignment. You may not assign, delegate, or transfer these Terms or your rights or obligations hereunder in any way (by operation of law or otherwise) without prior written consent from GoRails. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
- Governing Law. Except as otherwise required by applicable law, these Terms and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of Missouri without regard to its conflict of laws principles.
- Waiver; Severability. GoRails' failure to enforce any provision of these Terms will not be deemed a waiver of that provision or any other provision of these Terms.If any provision of these Terms is held invalid or unenforceable under applicable law, that portion shall be construed in a manner consistent with applicable law to accomplish, as nearly as possible, the objective thereof, or shall be severed from the document if, and solely, to the limited extent such construction is not possible, and the remaining portion of these Terms shall remain in full force and effect.
- Amendment. We may amend these Terms from time to time by updating this page as evidenced by revising the "Last Updated" date noted at the top of this posting. Once you accept these Terms, the then-current version shall apply each time you access or use the Services. Nothing in these Terms will be deemed to confer any third-party rights or benefits.