Terms of service
Last Updated: August 09, 2023
The Terms further require you to indemnify Delphia, limit your right to bring a class action waiver, and agree to settle certain disputes through individual arbitration rather than by a judge or jury in court. The Terms do not affect your mandatory statutory rights under applicable laws, to the extent that such rights apply to you and cannot be limited or excluded.
ABOUT THE BACKCHANNEL PLATFORM
Purpose. The Platform provides you with the ability to ask questions and share your views, insights, and information relating to news and other developments with other users and, if you choose, the public.
Visitors. People who do not register with us, but want to explore the Platform, are “Visitors.” No application is required for Visitors. Visitors can (i) view all publicly available content on the Platform and (ii) email us. These Terms govern such Visitors to the extent applicable.
Users. Individuals who have agreed to the Terms and created an account on our Platform (“App Services”) are “Users.” Users have the ability to: (i) create, access, manage, and update their own personal accounts on the Platform; (ii) sign-up for alerts and other notifications; and (iii) contribute data to the Platform. Users who contribute data to the Platform agree that such data will be attributed to their account on the Platform and may be collected, processed, used, and stored by us for use in providing the Platform. Users who contribute data to the Platform may also elect to become a “Member” of an independent decentralized autonomous organization (“DAO”) called Superset (also referred to as the “Data DAO”) after the User (a) agrees to these Terms and opts-in to contribute data to Delphia Research [through the Platform] and (b) agrees to the Superset Trust Terms of Service. More information on the Data DAO is available here: https://www.supersetdao.com/.
Users may answer questions and may, over time, be ranked or receive other Platform benefits. Information or answers to questions provided by Users are to be used by others for general information purposes only, not as a substitute for in-person evaluation or specific professional advice. By answering questions or otherwise using the Platform, no professional-client relationships shall be formed on the Platform. Users do not intend to form, and do not form, any professional relationship with any other User including any relationship to render financial, investment, legal, medical, tax, or accounting advice. Communications on the Platform are not confidential and shall not be the subject of any associated privileges. Communications on the Platform are limited, as described above, do not involve in-person evaluations or meetings, and do not include safeguards and procedures typical of in-person evaluations and meetings.
Before you can interact with other Users, you may be required to agree to a disclaimer reminding you of these and other important provisions of the Terms.
Eligibility. You must be at least seventeen (17) years of age to use the Platform. By agreeing to the Terms, you represent and warrant to us that: (i) you are at least seventeen (17) years of age; (ii) you have not previously been suspended or removed from the Platform; and (iii) your registration and use of the Platform follow all applicable laws and regulations. If you are using the Platform on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to the Terms and you agree to be bound by the Terms on behalf of that organization.
Account and Registration. In order to access certain features of the Platform you will need to register for an account and provide us with your information, including your email address, phone number, or other contact information. You agree that any information you provide to us is accurate and that you will keep it updated. If you register for an account, you will be asked to provide a password. You are solely responsible for (i) all activities that occur through our Platform via your account — whether or not you believe you authorized the activity, and (ii) maintaining the confidentiality of your account and password. If you have reason to believe that your account is no longer secure, then you must immediately notify us at the applicable email address listed in Section 10, below.
YOUR RIGHTS TO USE THE PLATFORM
User Rights. You may use the Platform, or any relevant portion thereof, solely to engage in the following activities (collectively, “Delphia Licensed Elements”):
Display content from the Platform on devices;
Stream content available through the Platform;
Download any apps (as may now or in the future become available on, or as part of, the Platform;
Obtain a registered account; and
Use other functionality provided through the Platform.
Availability of the Platform. Your right to access and use the Platform is subject to your strict compliance with the Terms and are non-exclusive, limited, and revocable by us at any time in our sole discretion without advance notice or liability to you. We are not under any obligation to provide any individual with access to the Platform or accept any individual as a User. We may deny you access to the Platform, or any portion thereof, and may accept or reject any account creation and/or data contribution request in our sole and complete discretion, without notice and without reason. We may immediately terminate your right to access or use the Platform, or any portion thereof, if you violate the Terms or for other reasons as further described in Section 12.
Access to Exclusive Content. We may in our sole discretion provide Users with the option to access exclusive Content made available on the Platform. Such Content may be made available to Users through a points program (“Points”) whereby (i) we award Points to Users based on Users’ participation in the Platform, including by contributing data, generating UGC (as defined in Section 4), and through other activities; and (ii) Users use their awarded Points to access exclusive Content. You agree that any Points awarded to you do not have any value in real currency, are not a substitute for currency, do not earn interest, cannot be redeemed for any currency, and do not obligate us to provide you with anything of value. Any Points awarded to Users on the Platform provide Users with only a limited, non-refundable, non-transferable, revocable license to use the Points solely in connection with the Platform. We retain in our sole discretion the right to modify, limit, revoke, or terminate a User’s license to use any Points associated with the User’s account without notice to the User. You agree to release us from and against any and all claims, expenses, or liabilities incurred by you in connection with your use of any Points awarded to you on the Platform. Any Points awarded to you on the Platform are personal to you and may not be sold, transferred or assigned to, or shared with, family, friends, or others, or used by you for any commercial purpose.
FEES AND CHARGES
Platform Payments. We may provide services or products for purchase through the Platform. Before you make any purchases via the Platform, you will have an opportunity to review and accept the fees that you will be charged. Any fee we charge will be denominated in U.S. dollars and is non-refundable. We will charge the payment method you specify at the time of purchase. You authorize us to charge all sums described at the time of purchase for the product(s) you select, to the payment method specified at the time of purchase. If you pay any fees with a credit card, we may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
Refund Policy. Purchases made through the Platform are non-refundable unless otherwise specified by us at the time of purchase. Any refunds that may be available from time to time will be refunded to the same credit/debit card used to make the subject purchase.
CONTENT YOU SUBMIT
General. We may now, or in the future, offer you and other Users the opportunity to create, build, post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Platform, on or in response to our pages, posts on any third-party platforms, or in connection with any of our promotions by any media or manner (collectively, “submit”) messages, text, illustrations, files, images, graphics, photos, comments, responses, sounds, music, videos, information, content, ratings, reviews, data, questions, suggestions, or other information or materials and the ideas contained therein (collectively, but excluding Delphia Licensed Elements included therein, “User-Generated Content” or “UGC”). Except to the extent of the rights and license you grant under the Terms and, subject to the terms of any applicable Third-Party Services, you retain whatever legally identifiable right, title, and interest that you have in your UGC.
Non-Confidentiality. Except as otherwise described in the terms of any applicable Third-Party Services, you agree that (a) your UGC will be treated as non-confidential and non-proprietary by us — regardless of whether you mark them “confidential,” “proprietary,” or the like – and will not be returned, and (b) to the maximum extent not prohibited by applicable law, we do not assume any obligation of any kind to you or any third party with respect to your UGC. You acknowledge that the internet and mobile communications may not be secure and may be subject to breaches of security; accordingly, you acknowledge and agree that your UGC is submitted at your own risk.
License of Your UGC. Except as otherwise described in any applicable additional terms that specifically govern the submission of your UGC, you hereby grant us the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your UGC (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to use any ideas, concepts, know-how, or techniques contained in any UGC for any purposes whatsoever, including soliciting, developing, producing, selling, and marketing products and/or services. You understand that in exercising such rights, metadata, notices, and content may be removed or altered, including copyright management information, and you consent thereto and represent and warrant you have all necessary authority to do so. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 4.C, except as provided in Section 4.D, below.
Commissioned UGC. We may at times, as determined in our sole discretion, use the Platform to offer monetary or other compensation to certain Users in exchange for Users' generating UGC on specific topics within the User’s area of expertise for publication on the Platform (“Commissioned UGC”). Users of the Platform also may have the opportunity to offer payment to us for our assistance in soliciting such Commissioned UGC from other Users for publication on the Platform. With respect to any Commissioned UGC generated by you, we will retain the same license rights in such Commissioned UGC as we have in all other UGC submitted to the Platform, as set forth in the above section 4.C. Users who pay us to solicit Commissioned UGC from other Users will not have any copyright or other legal rights or interests in such Commissioned UGC.
Relationship. Use of the Platform by Users is purely voluntary, and nothing in these Terms or in the manner of use is intended to create, or does create, any employment or agency relationship. Without limiting the generality of the foregoing, such User is not authorized to bind us to any liability or obligation or to represent that such User has any such authority. Users who create Commissioned UGC agree to furnish all tools and materials necessary to answer questions on the Platform and shall incur all expenses associated with such performance. Users who create Commissioned UGC further agree that any use of tools on the Site or Mobile App or any other tools (“Tools”) offered by us is optional and such Tools are purely offered for such User’s convenience and usage of such Tools are not mandatory.
Use of Artificial Intelligence. Use of the Site, the Platform, and/or the Services may involve your input to the Services (“Input”), and you or others may receive output generated and returned by the Platform or Services based on the Input (“Output”). Input and Output are collectively referred to as Content as further described below. Content may be developed using, or may otherwise implicate use within, our generative or other artificial intelligence services (collectively, our “GAIS”). Note that our GAIS use experimental, unsupervised technology and may sometimes provide inaccurate or offensive Content that does not necessarily represent our views. Further:
Information provided to our GAIS may be used to continuously train the GAIS. Submission of confidential or proprietary information could be compromised if submitted to the GAIS and should not be submitted unless such use is permitted.
Our GAIS may at times reproduce copyrighted material used as training data in response to an inquiry. Care should be taken in copying and further distributing Content created by any GAIS, such as ensuring that no copyright information appears on outputted work, and ensuring no other obvious signs show that the outputted work belongs to a third party.
Users of our GAIS assume all responsibilities and obligations with respect to the results, any decisions or advice made or given, and any materials retrieved therefrom, including those to any third party, for the Content, accuracy, and review of such results. Therefore, use discretion before relying on, publishing, or otherwise using content provided by the GAIS.
Do not rely on our GAIS for medical, legal, financial, or other professional advice. Any Content regarding those topics is unintentional, provided for informational purposes only, and is not a substitute for advice from a qualified professional.
Please contact us at firstname.lastname@example.org with any questions regarding or further information about our GAIS.
REPORTING INFRINGING CONTENT
We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet Service Providers. If you have an intellectual property rights-related complaint about UGC or other content posted on the Platform, you may contact our designated agent at the following address: Delphia Research Inc., ATTN: Legal Department (Copyright Notification), 501 Queen Street West, Suite 100, Toronto, ON, M5V 2B4.
Any notice alleging that Content hosted by or distributed through the Platform infringes intellectual property rights must include the following information:
an electronic or physical signature from you as the owner of the copyright or other right being infringed, or of the person authorized to act on behalf of such owner;
a description that is sufficient to identify the copyright-protected work or other intellectual property right that you claim has been infringed;
a description of the Content that you claim is infringing and where it is located on the Platform;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the use of the Content on the Platform is not authorized by the copyright owner, its agent, or the law; and
a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
We reserve the right to promptly terminate, without notice, any User account that has been sent notice by us of infringing activity or has had UGC removed from the Platform at least twice.
Our community, like any community, functions best when our Users follow a few simple rules. By accessing the Platform, you agree to comply with the community guidelines (“Community Guidelines”), including that you:
Will engage in respectful discussions, as applicable through your use of the Platform, including with respect to others’ opinions and comments so we can continue to build the Platform for everyone. Under no circumstances will you engage in, or post Content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, libelous, defamatory, abusive, violates these Terms or any right of any User or other third-party, or that is otherwise objectionable to us, in our sole and complete discretion. If you think your UGC might offend someone or be embarrassing to someone, then chances are it probably will, and it does not belong on the Platform.
Will respect the privacy rights of other Users and respect the wishes of those who wish to remain anonymous. You should not reveal another person’s address, phone number, email address, social security number, credit card number, medical information, financial information, or any other information that may be used to track, contact, or impersonate that individual. Your UGC must not promote any infringing or illegal activity.
Will only submit UGC that is your original Content or in which you have all necessary rights from third parties to use it in connection with our Platform. Your UGC should not contain any visible logos, phrases, or trademarks that belong to third parties. Do not use any UGC that belongs to other people and pass it off as your own; this includes any Content that you might have found elsewhere on the Internet. If anyone contributes to your UGC or has any rights to your UGC, or if anyone appears or is referred to in the UGC, then you must also have their permission to submit such UGC through the Platform.
Will NOT harvest or collect email addresses or other contact information of others from the Platform by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications. You will NOT solicit personal data from anyone or passwords or personally identifying information for commercial or unlawful purposes. This also includes not uploading, posting, transmitting, sharing, or otherwise making available any unsolicited or unauthorized advertising, solicitations, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation.
Will NOT access or use the Platform to collect any market research for a competing business.
Will NOT use another User’s account under any circumstances and will notify us immediately of any breach of security or unauthorized use of your account. Delphia will not be liable for any losses caused by any unauthorized use of your account.
Will NOT impersonate any other person, User, or company, falsely state or otherwise misrepresent your affiliation with a person or entity, or submit UGC that you believe may be false, fraudulent, deceptive, inaccurate, or misleading, or that misrepresents your identity or affiliation with a person or company.
Will NOT submit Content to the Platform that contains viruses, Trojan horses, spyware, or any other technologies or malicious code that could impact the operation of the Platform or any computer, network, device, or other system. You further may not interfere with or circumvent any security feature (including without limitation any digital rights management mechanism, device, or other Content protection or access control measure) of the Platform (whether provided by us or any third party) or any feature that restricts or enforces limitations on use of or access to the Platform, and you will not access or attempt to gain access to any Content (defined below), data, files, or passwords related to the Platform through hacking, password or data mining, or any other unauthorized means.
Will NOT decompile, reverse engineer, or disassemble any software or other products or processes accessible through the Platform.
Will NOT cover, obscure, block, or in any way interfere with any advertisements and/or safety features on the Platform.
Will NOT use any robot, spider, scraper, or other automated means to access the Platform for any purpose without our express written permission; provided, however, we grant the operators of public search engines permission to use spiders to copy materials from the public portions of the Platform for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials.
Will NOT take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure.
Will NOT engage in any criminal or unlawful activity through the Platform, including (without limitation) communicating in any way to other Users, Visitors, us, or any third party any “Material Nonpublic Information.” Information is “Material” if there is a substantial likelihood that, considering all of the surrounding facts and circumstances, a reasonable person would consider that information important to an investment decision. Information is “Nonpublic” if it has not been disseminated by a method that is reasonably designed to provide broad, non-exclusionary distribution of the information to the public, including (without limitation) through major newswire services, national news services, financial news services, a webcast generally available to the public, or a filing with the U.S. Securities and Exchange Commission.
You are solely responsible for your interaction with other Platform Users and Visitors, whether online or offline. We are not responsible or liable for the conduct or Content of any User or Visitor. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other Visitors and/or Users. Exercise common sense and your best judgment in your interactions with others on our Platform.
If you submit Content that we reasonably believe violates these Community Guidelines, then we may take any legally available action that we deem appropriate, in our sole and complete discretion, including removal of your Content from the Platform and terminating your access thereto. However, we are not obligated to take any action not required by applicable law. You agree that you will contact us if you find something that violates our Community Guidelines.
The Platform contains material, such as videos, photographs, software, text, graphics, images, sound recordings, and other material provided by Users or by us, or on our behalf (collectively referred to as the “Content”). The Content may be owned by us or by third parties. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. Except with respect to your UGC, you have no rights in or to the Content, and you will not use the Content except as permitted under the Terms. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited.
Registered and unregistered trademarks, service marks, and logos of Delphia and Backchannel (the “Delphia Trademarks”) may be used and displayed on the Platform. Other company, product, and service names located on the Platform may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with Delphia Trademarks, the “Trademarks”). Nothing on the Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Delphia Trademarks inures to our benefit.
Elements of the Platform are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of scraping, framing, or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
REPRESENTATIONS AND WARRANTIES
You represent and warrant that you:
are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to lists maintained by the United Nations Security Council, the U.S. Government (including without limitation, the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority;
are not located in any country to which the United States has embargoed goods or has otherwise applied any sanctions;
are at least seventeen (17) years of age or older;
will be solely responsible for paying any federal, state, and local taxes now or hereafter claimed or imposed by any governmental authority associated with your use of the Platform under the Terms, as may now or in the future be applicable; and
will abide by the Community Guidelines (outlined in Section 6), including without limitation, not sharing Material Nonpublic Information (defined in Section 6), not contributing or otherwise revealing any materials or data to the Platform that contain confidential information or information that is otherwise restricted or protected by a written agreement with your employer or other third party, and not submitting or otherwise revealing any personally identifying information on the Platform (see Section 6 for more information).
9. TERMS AND CONDITIONS SPECIFIC TO MOBILE APPLICATIONS
Users may elect to download and use different versions of our Mobile App. Download and use of the Mobile App is required to use the Platform. By downloading and using one or more versions of the Mobile App, you agree that in addition to the Terms governing your use of the Mobile App and the Platform, the following terms and conditions specifically applicable to your use of the Mobile App (the “Mobile Terms”) also apply to you:
You acknowledge that the Mobile Terms and the Terms are between you and us, and not any other third-party beneficiary (as defined below) and you understand that we are solely responsible for the Mobile App.
Apple, Google, Inc., or Microsoft Corporation (as may be applicable) will be a third-party beneficiary to this contract if you access the Platform using our Mobile App, if/when developed for Apple iOS, Android, or Microsoft Windows mobile devices, respectively.
Your access and use of the Mobile App using these devices is subject to terms set forth in the applicable third-party beneficiary’s terms of service.
The third-party beneficiaries listed above are not parties to this Agreement and are not responsible for the provision or support of the Platform in any way.
If you are accessing the Mobile App through an Apple device, you acknowledge that Apple and its subsidiaries (collectively, “Apple”) are third-party beneficiaries of the Agreement and upon your download of and use of the App indicating your assent and agreement to the Mobile Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Mobile Terms against you as a third-party beneficiary thereof.
OUR COMMUNICATIONS WITH YOU
Notices to You. You agree that we may send you notices or respond to your inquiries using any email you provide during the account creation process or any other manner reasonably determined by us. You agree that all agreements, notices, disclosures, and other communications that we may provide to you or through the Platform to you may be sent electronically, and that such communication is valid and satisfies any legal requirement that such communications be in writing.
Notices to Us. You may contact us at email@example.com. You acknowledge that we have no obligation to provide you with customer support of any kind.
PRODUCT SPECIFICATIONS; TYPOGRAPHICAL ERRORS.
We strive to accurately describe the Platform available pursuant to the Terms; however, we do not warrant that such specifications or other descriptions are complete, accurate, reliable, current, or error-free.
TERMINATION OF PLATFORM USE
Termination by User. If you have registered for an account, you may terminate your account at any time by contacting us at the applicable email address listed in Section 10. If you terminate your account, you remain obligated to pay any outstanding fees you incurred through your use of the Platform.
Termination by Us. We may deactivate or suspend any account at any time and for any reason in our sole discretion, including, without limitation, if we, in our sole and complete discretion, determine that a User has violated the Terms.
Service Modifications. We reserve the right to modify or discontinue the Platform at any time (including by limiting or discontinuing certain features of the Platform), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Platform or any suspension or termination of your access to or use of the Platform.
OTHER POLICIES AND TERMS
Additional Terms. Your use of the Platform is subject to all additional terms, policies, rules, or guidelines applicable to the Platform or certain features of the Platform that we may post on or link to from the Platform (“Additional Terms”), such as rules that apply to a particular feature or Content on the Platform, subject to Section 13. C, below. All Additional Terms are incorporated by this reference into, and made a part of, the Terms.
Modification of the Terms. We may, in our sole discretion and for any reason, change, supplement, or amend the Terms without any liability to you or any other person. Changes shall automatically be effective upon posting; provided, however, that those changes that we, in our sole discretion, deem material changes to the Terms will be effective as to an existing User upon the earlier of: (1) the agreement of the User; or after notice to the existing User from an @delphia.com email address to the User’s email address on file with us or via notice provided via a pop-up or banner, message, or other conspicuous notice on the Platform when a User logs in to their account. You agree to make all necessary arrangements so that you (and not your spam filter) receive all emails from us. Our notice to you will signify your acceptance of the changes. If you do not accept the changes, your sole and exclusive remedy is to cancel your account and discontinue using any component of the Platform. When we make material changes to the Terms, we will post the revised Terms on the Site and update the “Last Updated” date at the top of the Terms. Accordingly, we encourage you to review the Terms periodically.
Feedback. If you choose to provide input or suggestions regarding problems with or proposed modifications or improvements to the Platform (“Feedback”), then you hereby grant us a worldwide, unrestricted, perpetual, irrevocable, transferable, non-exclusive, fully paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Platform and create other products and services.
Except as may otherwise be provided in the Terms, the Terms are governed by the laws of the State of Delaware without regard to conflict of law principles. Judicial proceedings (other than small claims actions) that are excluded from the Agreement to Arbitration in Section 15 below, must be brought in state or federal court in the state of Delaware, unless we both agree to some other location. You and we both consent to venue and personal jurisdiction in the state of Delaware.
PLEASE READ THIS SECTION CAREFULLY — IT AFFECTS YOUR LEGAL RIGHTS.
Informal Dispute Resolution. If you have a dispute with us, please contact us at firstname.lastname@example.org and we will try to resolve it. You agree that you will make a good faith effort to informally resolve any disputes that may arise between you and us before resorting to arbitration, and agree to provide written notice to us describing your claim so that we can attempt to resolve it with you. If we do not satisfactorily resolve your claim within thirty (30) calendar days of receiving your written notice, then you may provide a second written notice explaining your intent to pursue your claim in arbitration. You may not initiate arbitration without first following the informal dispute resolution procedure provided in this paragraph.
Agreement to Arbitration. Any dispute, claim, or cause of action you may have against us that is not resolved informally through the process described in the preceding paragraph shall be settled by binding arbitration administered by the AAA in accordance with its Consumer Arbitration Rules or Commercial Arbitration Rules, as applicable depending on the amount in controversy. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s applicable rules. The arbitration shall be held in the State of Delaware (or remotely, as set forth in Section C below), before a single arbitrator who shall be a lawyer. The AAA rules are available at www.adr.org. In order to initiate arbitration, a completed written demand (available at www.adr.org) must be filed with the AAA and provided to the other party, as specified in the AAA rules.
Modification to AAA Rules — Hearing Location. In order to make the arbitration most convenient to you, we agree that any required arbitration hearing may be conducted, at your election, remotely, via phone or video conference. If the amount in controversy is Five Thousand Dollars ($5,000) or less, the parties agree to proceed solely on the submission of documents to the arbitrator.
Exclusions from Arbitration. Notwithstanding the above, you or we may choose to pursue a dispute in court and not by arbitration if the dispute qualifies for resolution in small claims court. We may also seek injunctive relief, damages, or other appropriate relief in state or federal court if the dispute involves an infringement or threatened infringement of our intellectual property rights. You or we may seek a temporary restraining order or preliminary injunction in court to preserve the status quo or status quo ante or to prevent imminent harm, but the substance of the dispute would then be subject to mandatory arbitration. A court may confirm or enter judgment on an arbitration award, may enjoin an arbitrator from exercising authority that the arbitrator lacks, and may compel arbitration.
Arbitration Opt-Out Right. YOU HAVE THE RIGHT TO OPT OUT OF BINDING ARBITRATION WITHIN THIRTY (30) DAYS OF THE DATE YOU FIRST AGREE TO THE ABOVE AGREEMENT TO ARBITRATION BY NOTIFYING DELPHIA AT OPTOUT@DELPHIA.COM. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration.
Class Action Waiver. DISPUTES WILL BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS AND WILL NOT BE JOINED OR CONSOLIDATED WITH ANY OTHER ARBITRATIONS OR OTHER PROCEEDINGS THAT INVOLVE ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY. YOU AND WE EACH WAIVE THE RIGHT TO PARTICIPATE IN ANY CLASS OR COLLECTIVE ACTION, AND YOU AND WE EACH AGREE THAT WE MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR SHALL HAVE NO JURISDICTION TO JOIN CLAIMS OR TO PRESIDE OVER A CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION.
Jury Trial Waiver. If for any reason this arbitration agreement is found to be unenforceable, you and we expressly and knowingly WAIVE THE RIGHT TO TRIAL BY JURY. This means that a Judge rather than a Jury will decide disputes between you and us if, for any reason, the arbitration agreement is not enforced.
Choice of Law and Venue. Any and all disputes, claims, and causes of action between you and us, including those arising out of or connected with the Platform and/or the Terms, and whether sounding in contract, tort, law, equity, or otherwise, shall be governed by, and enforced in accordance with, the internal laws of the State of Delaware, including its statute of limitations, without reference to its choice of law rules or any principle calling for application of the law of any other jurisdiction.
Time Limitation. You agree to bring any and all claims against us within one (1) year from the date of accrual of a cause of action, and that actions brought after this date will be deemed time-barred.
Prior Agreements. The foregoing dispute resolution provisions shall supersede any inconsistent provisions of any prior agreement between the parties relating to the Platform and shall remain in full force and effect notwithstanding any termination of your use of the Platform or your status as a User.
Severability. Except as provided in Section L (Survival, below), in the event that any portion of this Agreement to Arbitration is deemed illegal or unenforceable by a court of competent jurisdiction, such portion will be severed, and the remainder of the Agreement to Arbitration will be given full force and effect.
Survival. Except as provided in Section K (Severability, above), this dispute resolution agreement survives the termination of your use of the Platform or of status as a User. If you bring a claim against us that is based in whole or in part on events or omissions that occurred as related to your use of the Platform or your agreement to the Terms, then this dispute resolution agreement shall apply.
DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOUR ACCESS TO AND USE OF THE SERVICES IS AT YOUR SOLE RISK, AND IT IS PROVIDED ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS. WE AND OUR RESPECTIVE EMPLOYEES, MEMBERS, AGENTS, VENDORS, LICENSORS, LICENSEES, CONTRACTORS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “COMPANY PARTIES”) HEREBY DISCLAIM AND MAKE NO REPRESENTATIONS, WARRANTIES, ENDORSEMENTS, OR PROMISES, EXPRESS OR IMPLIED, IN CONNECTION WITH, OR OTHERWISE DIRECTLY OR INDIRECTLY RELATED TO THE SERVICES, EXCEPT AS SET FORTH BELOW. EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR AS REQUIRED BY APPLICABLE LAW, THE COMPANY PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUSES.
LIMITATION OF OUR LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, BREACH OF CONTRACT, PRODUCT LIABILITY, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, ARISING OUT OF THE USE OF OR INABILITY TO USE THE PLATFORM OR IN THE TERMS, OR YOUR ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE PLATFORM, EVEN IF THE COMPANY PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL THE COMPANY PARTIES’ TOTAL LIABILITY TO YOU EXCEED, IN THE AGGREGATE FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICES AND YOUR RIGHTS UNDER THESE TERMS, AN AMOUNT MORE THAN TWO HUNDRED AND FIFTY DOLLARS (USD $250.00) OR THE VALUE OF ANY PURCHASE YOU MADE THROUGH USE OF OUR PLATFORM DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE YOUR CAUSE OF ACTION AROSE.
YOU ACKNOWLEDGE THAT WE WOULD NOT PROVIDE ACCESS TO THE PLATFORM IF NOT FOR THE FOREGOING LIMITATIONS OF LIABILITY, AND THAT THESE LIMITATIONS OF LIABILITY ARE ESSENTIAL ELEMENTS OF THE TERMS. THESE LIMITATIONS OF LIABILITY REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES. THE LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW A LIMITATION OR EXCLUSION OF LIABILITY IN ALL CIRCUMSTANCES, IN THOSE JURISDICTIONS, THE COMPANY PARTIES’ LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
Except where specifically prohibited by applicable law, you agree to defend (upon our request), indemnify, and hold the Company Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Company Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with: (i) your use of the Platform and any associated activities in which you engage; (ii) your breach or alleged breach of the Terms; (iii) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Platform or your activities related to the same; (iv) information or material transmitted through your device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (v) any misrepresentation made by you as it relates to the Platform, or the Terms; and (vi) your violation of the rights of a third party, including without limitation another user or third-party service provider (all of the foregoing, “Claims and Losses”). The Company Parties reserve the right to assume the exclusive defense and control of any Claims and Losses; however, you will cooperate as fully as required by the Company Parties in the defense of any Claims and Losses. The Company Parties retain the exclusive right to settle, compromise, and determine whether to pay any and all Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an official representative of the impacted Company Party. This Section is not intended to limit any cause of action against us that you may have but that is not waivable under applicable law.
Our Consent or Approval. As to any provision in the Terms that grant us a right of consent or approval or permits us to exercise a right in our “sole” or “sole and complete” discretion, we may exercise that right in its sole and absolute discretion.
US and International Issues. We make no representation that the Platform is appropriate or available for use beyond the United States. If you use the Platform from other locations, you are doing so on your own initiative and responsible for compliance with applicable local laws regarding your conduct as related to the Platform, if and to the extent local laws apply.
Severability; Interpretation. If any provision of the Terms is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from the Terms and the invalidity of the provision will not affect the validity or enforceability of the remainder of the Terms. To the extent permitted by applicable law, you agree to waive and will waive any applicable statutory and common law that may permit a contract to be construed against its drafter.
Investigations; Cooperation with Law Enforcement; Termination; Survival. As permitted by applicable law, we reserve the right, without limitation, to: (i) investigate any suspected breaches of the Terms; (ii) use any information obtained by us to comply with law enforcement requests or applicable laws; (iii) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters; and (iv) prosecute violators of the Terms. The provisions of the Terms will survive in the event your use of the Platform is for any reason terminated, including the rights and licenses you grant to us under the Terms, as well as the indemnities, releases, disclaimers, limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, jury trial waiver, and mandatory arbitration.
Assignment. We may assign our rights and obligations under the Terms, in whole or in part, to any party at any time without any notice. You may not assign your rights and/or obligations under the Terms without our prior written consent, which we are under no obligation to provide.
Entire Agreement; No Waiver. The Terms reflect the entire agreement between you and us regarding the Platform and supersede any prior and contemporaneous agreements, representations, warranties, assurances, or discussion related to the Platform or regarding the Terms. Except as expressly set forth in the Terms, (i) any failure or delay in exercising any of the rights, powers, or remedies under the Terms or other legal right will not operate as a waiver of such or any other right, power, or remedy, and (ii) any waiver of any provision of the Terms will not be effective unless made in writing and signed by the party against whom the waiver is sought to be enforced.
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