1. Who we are
1.1 We Discover The owner of the Website www.wediscoverevents.com as well as the application (or “app”) is WE DISCOVER, LLC. (hereinafter, We Discover), TIN:99-0368536, registered at 4421 Pacific Coast hwy, E202, Torrance, California 90505. We Discover is a web and mobile app that drives users to consume offline entertainment by providing curated events based on its proprietary analytics of consumer data. We Discover is able to drive traffic and provide an avenue for spontaneous discovery for event organizers.
1.2 The Services
We Discover’s Websites and domains, including www.wediscoverevents.com, and all of the webpages, subdomains, country level domain variants and subparts of those Websites (collectively, our “Website”), all of the services available on or through the Website or otherwise provided by us (including our application programming interfaces), and all of our free mobile applications, including without limitation, We Discover app, are offered, maintained and provided by We Discover. We refer to these as our “Services.”
Through the Services, We Discover provides a simple and quick means for registered users who are event organizers, planners and charitable organizations (“Event Organizers”) to create event registration, organizer profile, and other webpages related to their events, to promote those pages and events to visitors or browsers on the Services and to sell tickets and registrations (or issue free registrations) and sell merchandise related to those events to users who wish to make purchases, registrations or donations from or to such events (including to free events) (“Customers”).
We refer to Event Organizers, Customers and other visitors and browsers of the Services collectively as “Users” or “you.”
2.2 Incorporation By Reference
3. Your Use Of The Services
3.1 The Services
4. We Discover's Role
4.1 Listing Service and Limited Agent
Unless otherwise stated in the contract between We Discover and the Event Organizer (i.e.: prepurchase of inventory by We Discover for certain events), We Discover is not the organizer or owner of the events listed for sale or registration on the Services. We Discover provides the Services, which allow Event Organizers to list and promote their events, but all sales are, by default and in origin, made by the respective Organizer listed on the applicable event page. We Discover also acts as the Organizer’s limited agent solely for the purpose of using its third party payment providers to collect payments made by Customers on the Services with respect to an event and passing such payments through to the applicable Organizer. It is the Organizer’s sole obligation to ensure that any event page posting on the Services and the nature and conduct of the underlying event meet all applicable local, state, provincial, national and other laws, rules and regulations, and that the goods and services described in any event page posting are actually delivered in a satisfactory manner.
4.2 Payments from Customers
All payments made by Customers to attend the Events of Organizers will be made through the We Discover Applications. We Discover may use third party payment processing partners to process the transaction as Organizer’s limited payment agent.
Creating an account, listing an event through the 0% Commission Link and accessing the Services is free. We charge our fees only when you sell or buy paid tickets or registrations through one of We Discover Platforms. All descriptions of standard fees on the Services represent the standard fees that We Discover charges to Organizers. These fees may vary based on individual agreements between We Discover and certain Organizers. These fees will be absorbed into the ticket or registration price and, at We Discover’s sole discretion, either a) paid by the Organizer out of ticket and registration gross proceeds or b) deducted by We Discover from the amount owed by We Discover to the Organizer. The fees charged to Customers may include certain other charges, including without limitation, facility fees, royalties, taxes, processing fees and fulfilment fees. Therefore, the implied fees paid by Customers for an event are not necessarily the same as those charged by We Discover to the applicable Organizer or the standard fees described on the Merchant Agreement. In addition, certain fees are meant, on average, to defray certain costs incurred by We Discover, but may in some cases include an element of profit and in some cases include an element of loss. We Discover does not control (and thus cannot disclose) fees levied by your bank and/or credit card company, including fees for purchasing tickets and registrations in foreign currencies or from foreign persons. Be sure to check with your bank or credit card company prior to engaging in a transaction to understand all applicable fees, credit card surcharges and currency conversion rates.
The varying exchange and refund policies set forth by our Event Organisers prohibit We Discover, by default, from issuing exchanges or refunds after a booking is placed.
If a refund or exchange is requested by a Customer, such request will be processed by We Discover.
Tickets become non-refundable 24 hours before the start of the event. In case an event is postponed, there is a change of venue or any other significant change to event (or, in the case of a music festival, to the line-up), or the event is cancelled for reasons not imputable to We Discover, event organizers are required to process a refund no later than 5 business days after the event or provide the same ticket at a later date or the following the event the equivalent amount to be spent in other plans from the Application.
4.2 Refund Process.
In order to initiate a refund request, We Discover instructs Consumers to contact the Organizer directlyr. If no contact information is listed, We Discover instructs the Consumer to use the contact the organizer button on the event page or such other information posted on the event page. Organizer agrees to administer its refund policy in accordance with the terms set forth on the applicable event page.
When a Consumer requests a refund and the Organizer does not respond by either refunding or denying the request after five (5) days, Eventbrite may, in its sole discretion, execute the refund on behalf of the Organizer and collect such sums directly from the Organizer.
4.3 We Discover Review.
In the event that Organizer fails tohonor a refund that a Consumer believes is due under the applicable refund policy and/or the minimum requirements set forth above or deliver its promise to make good in connection with a credit or other accommodation issued to the Consumer, that Consumer may request that We Discover initiate a refund by contacting us at [email protected]
We Discover will review the facts and circumstances and determine at its sole discretion whether or not a refund is due in accordance with the applicable refund policy and the minimum requirements set forth above. We Discover will endeavor to complete its review within thirty (30) days of being contacted by the Consumer. Consumers should note that if an Organizer has selected a facilitated payment method such as PayPal® for an event, We Discover will not have control of the funds and Eventbrite will need the provider of the facilitated payment method to cooperate in order to obtain a refund, which may not happen. All determinations by We Dsicover with respect to these Refund Policy Requirements, including without limitation the orders to be refunded and the size of any refund, shall be final and binding on both Organizer and Consumer.
2. No Insurance or Guarantee
These Refund Policy Requirements are not intended to be and do not constitute an offer to insure the performance of or to guarantee the performance of any Organizer and are not a guarantee that refunds will be issued in any given situation.
6. Account, Password And Security
As part of certain registration processes on the Services, you will create an account or change or add information about your account. You agree (a) to provide true, accurate, current and complete information about yourself, (the “Registration Data”); and (b) to maintain and promptly update the Registration Data to keep it true, accurate, current and complete. In the event of any dispute between two or more parties as to account ownership, you agree that Fever shall be the sole arbiter of such dispute in its discretion and that Fever’s decision (which may include termination or suspension of any account subject to dispute) shall be final and binding on all parties.
You are responsible for maintaining the confidentiality of your password and account details, and are fully responsible for all activities that occur under your account. You agree to immediately notify Fever of any unauthorized use of your password or account or any other breach of security.
6.3 Age Restrictions
7.1 Website Content
7.2 Your Content
7.3 Feedback & Revisions
You hereby acknowledge that (a) any and all suggestions for correction, change and modification to the Services and other feedback (including but not limited to quotations of written or oral feedback), information and reports provided to Fever by you (collectively “Feedback”); and (b) all improvements, updates, modifications or enhancements, whether made, created or developed by We Discover or otherwise relating to Feedback (collectively, “Revisions”), are and will remain the property of Fever. All Feedback and Revisions become the sole and exclusive property of Fever and Fever may use and disclose Feedback and/or Revisions in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to Fever any and all right, title and interest (including, but not limited to, any patent, copyright, future copyright, trade secret, trademark, show-how, know-how and any and all other intellectual property right) that you may have in and to any and all Feedback and Revisions. You hereby agree to waive any moral rights you may have in any and all Feedback and Revisions, and consent to any act which amounts to an infringement of any such moral right, in favor of We Discover. At We Discover’s request, you will execute any document, registration or filing required to give effect to these provisions.
8.1 Certain Restrictions
A. Submitting any content to the Website that: i) contains personal information of users, such as their e-mail and name ("Personal Information"), except when we expressly ask you to provide such information ; ii) violates any national or international applicable laws (including but not limited to intellectual property laws, laws relating to rights of privacy and rights of publicity and laws related to defamation); iii) offers unauthorized downloads of any copyrighted, confidential or private information; iv) impersonates any person or entity, or falsifies or otherwise misrepresents yourself or your affiliation with any person or entity; v) possesses or creates a privacy or security risk to any person; vi) makes use of offensive language or images; vii) contains software viruses or malware or any other computer code designed to interrupt or limit the functionality of any computer software or hardware; or viii) is protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right.
B. Attempting to do or actually doing any of the following: i) interfering with, disrupting or damaging the service given to any user in any manner, including, without limitation, submitting a virus to the Website or attempting to overload, “flood,” “spam,” “mail bomb” or “crash” the Website; ii) scanning or monitoring the Website for data gathering purposes in an effort to track sales, usage, aggregate offering information, pricing information or similar data; iii) scanning or testing the security or configuration of the Website or to breach security or authentication measures; or iv) accessing data not intended for you, such as logging into a server or an account which you are not authorized to access.
8.2 Certain Remedial Rights.
9. Additional Services; Coupons and Vouchers
9.1. Other Services
10.1 Third Party Websites
10.2 Linked Accounts
As part of the Services you may be able to link an account you have with a third party service, such as a social media website (e.g.: Facebook or Google). By linking such third party account, you agree that We Discover may access, make available to and store any Content that you have provided to and stored in such third party account so that it is available on or through the Services
The Website and its content are delivered on an "as-is" and "as-available" basis. We Discover disclaims all warranties, express or implied, including also any implied warranties of merchantability and fitness for a particular purpose. We Discover does not promise that the Website will be error-free, uninterrupted, or that it will provide specific results from use of the Website or any content, search or link on it. We Discover cannot ensure that files you download from the Website will be free of viruses or contamination or destructive features. We Discover will not be liable for any damages of any kind arising from the use of this Website, including without limitation, direct, indirect, incidental and punitive and consequential damage. We Discover makes no guarantee of any specific result from use of this Website or use of the We Discover service.
12. Limitation of liability
We Discover, the website and design are registered trademarks of We Discover, LLC. All rights reserved.
14.2 Access to personal data by the Event Organizers
TERMS OF SERVICE
1. Who we are
1.1 We Discover
The owner of the Website www.wediscoverevents.com as well as the application (or “app”) is We Discover, LLC. (hereinafter, We Discover), TIN:99-0368536, registered at 4421 Pacific coast hwy, E202, Torrance, CA 90505
We Discover is a web and mobile app that drives users to consume offline entertainment by providing curated events based on its proprietary analytics of consumer data. We Discover is able to drive traffic and provide an avenue for spontaneous discovery for event organizers.
1.2 The Services
We Discover’s Websites and domains, including www.wediscoverevents.com, and all of the webpages, subdomains, country level domain variants and subparts of those Websites (collectively, our “Website”), all of the services available on or through the Website or otherwise provided by us (including our application programming interfaces), and all of our free mobile applications, including without limitation, We Discover app, are offered, maintained and provided by We Discover. We refer to all of these as our “Services.”
Through the Services, We Discover provides a simple and quick means for registered users who are event organizers, planners and charitable organizations (“[Event] Organizers”) to create event registration, speaker profile, organizer profile, fundraising and other webpages related to their events, to promote those pages and events to visitors or browsers on the Services and to sell tickets and registrations (or issue free registrations) and sell merchandise related to those events to users who wish to make purchases, registrations or donations from or to such events (including to free events) (“Customers”). We refer to Event Organizers, Customers and other visitors and browsers of the Services collectively as “Users” or “you.”
1.4 Contracting Party
The Services are being provided to you by, and you are entering into these Terms of Service with, We Discover, LLC., a Calefornia Corporation with head officesin Los Angeles (4421 Pacific Coast hwy, E202, Torrance, 90505, California, United States) “We Discover,” “us,” “we” or “our.”
2. Our Terms Of Service
2.1 Terms of Service Agreement
The following pages contain our Terms of Service Agreement (“Terms of Service”). These Terms of Service govern all of our Services, all of which are offered subject to your acceptance without modification of these Terms of Service. In addition to the Sections below, these Terms of Service include and incorporate by reference the following agreements, terms, policies, requirements and guidelines:
• for Organizers who post events with paid or free tickets, either through our 0% Commission Link or through We Discover Platforms, our Merchant Agreement available here;
• additional terms and conditions that are displayed along with additional Services that you may use or purchase from time to time.
3. Your Acceptance
3.1 Binding Agreement
THESE TERMS OF SERVICE INCLUDE (A) AN ARBITRATION PROVISION FOR USERS LOCATED IN THE UNITED STATES; (B) A WAIVER OF RIGHTS TO BRING A CLASS ACTION AGAINST FEVER FOR USERS LOCATED IN THE UNITED STATES; (C) CERTAIN DISCLAIMERS OF WARRANTIES ON BEHALF OF FEVER; (D) CERTAIN LIMITATIONS OF LIABILITY FOR THE BENEFIT OF FEVER; AND (E) A RELEASE BY YOU OF ALL CLAIMS FOR DAMAGE AGAINST FEVER ARISING OUT OF DISPUTES BETWEEN YOU AND THIRD PARTIES IN CONNECTION WITH YOUR USE OF THE SERVICES. BY USING ANY OF THE SERVICES, YOU AGREE TO THESE PROVISIONS.
Except to the extent set forth in Section 6.10(i) below, We Discover reserves the right, at its sole discretion, to modify or replace any of the terms or conditions of these Terms of Service (or any of the agreements that make up these Terms of Service) at any time (collectively, “Modifications”). Modifications to these Terms of Service will be posted to the Fever website with a change to the "Updated” date at the top of these Terms of Service. In certain circumstances Fever may provide you with additional notice of such Modifications, via email or with in-Service notifications. Modifications will be effective the sooner of any date established by Law or thirty (30) days following the "Updated” date or such other date as communicated in any other notice to you, except that changes addressing new functions of the Services or which do not impose any additional burdens or obligations on you will be effective immediately. Fever will always inform you of any changes that may affect the use or processing of your Personal Data. Your continued use of the Services following the effectiveness of any Modifications to these Terms of Service constitutes acceptance of those Modifications as well. If any Modification to these Terms of Service is not acceptable to you, you must cease accessing, browsing and otherwise using the Services. Other than as set forth in this paragraph, these Terms of Service may only be modified through a written Ticketing Services Agreement or written Addendum Agreement , signed by you and an authorized officer of Fever.
We may translate these Terms of Service (or any of the agreements that make up these Terms of Service) into other languages for your convenience. The English language version of each of these documents is the version that governs your use of the Services and in the event of any conflict between the English language version and a translated version, the English language version will control.
4. Term; Termination
These Terms of Service are effective upon your Acceptance as set forth under Section 3.1 above and continue in effect until terminated.
4.2 Termination by We Discover
Except to the extent we have agreed otherwise in a separate written Addendum Agreement or Ticketing Services Agreement between you and an authorized officer of We Discover, We Discover may terminate your right to use the Services at any time for (a) your violation or breach of these Terms of Service; (b) your misuse or abuse of the Services; or (c) if allowing you to access and use the Services would violate any applicable local, state, provincial, national and other laws, rules and regulations or would expose We Discover to legal liability. We will use reasonable efforts to provide you notice of any such termination. Further, you agree that We Discover shall not be liable to you or any third-party for any such termination of your right to use or otherwise access the Services.
The closure of your account will involve the deletion by We Discover of all of your Personal Data.
4.3 Termination by You
Except to the extent you have agreed otherwise in a separate written Addendum Agreement or Ticketing Services Agreement between you and an authorized officer of We Discover, you may terminate your access to the Services and these Terms of Service by deleting your account. Customers may cancel their account by contacting a We Discover office by phone or email through one of the addresses or numbers set forth in Section 6.7. Event Organizers, except for those who may have entered into a separate Ticketing Services or Partnership Agreement (where the clauses specified therein will apply), may also cancel their account by addressing themselves to one of the contacts set herein.
In the event there is a separate agreement between you and We Discover governing your use of the Services and that agreement terminates or expires, these Terms of Service (as unmodified by such agreement) shall govern your use of the Services unless and until you cancel your account.
4.4 Survival of Terms
All provisions of these Terms of Service that by their nature should survive termination of these Terms of Service shall survive (including, without limitation, all limitations on liability, releases, indemnification obligations, disclaimers of warranties, agreements to arbitrate, choices of law and judicial forum and intellectual property protections and licenses).
5. Special Terms For International Use
5.1 US Export Laws
The Services are subject to United States export controls and economic sanctions laws. In accepting these Terms of Service you represent and warrant that: (a) you are not located in, and you are not a national or resident of, any country to which the United States, United Kingdom, European Union, Australia or Canada has embargoed goods and/or services of the same type as the Services (“Restricted Countries”), including without limitation, Cuba, Iran, North Korea, Sudan or Syria; and (b) you are not a person or entity, or owned by, under the control of, or affiliated with, a person or entity (i) that appears on the U.S. Office of Foreign Assets Control’s Specially Designated Nationals List, Foreign Sanctions Evaders List or Palestinian Legislative Council List; (ii) that appears on the U.S. Department of State’s Terrorist Exclusion List; (iii) that appears on the Bureau of Industry and Security’s Denied Persons, Entity or Unverified List; (iv) that appears on the Consolidated List of Targets published by the U.K. HM Treasury; (v) that appears on the Consolidated List published by the A.U. Department of Foreign Affairs and Trade; (vi) that is subject to sanctions in any other country; or (vii) that is engaged in the design, development or production of nuclear, biological or chemical weapons, missiles or unmanned aerial vehicles.
6. Important Legal Terms Governing All Use Of The Services
6.2 Disclaimer of Warranties
We DISCOVER PROVIDES OUR SERVICES USING A COMMERCIALLY REASONABLE LEVEL OF SKILL AND CARE AND WE TRY TO KEEP WE DISCOVER RUNNING, ERROR-FREE AND SAFE. BUT THERE ARE CERTAIN THINGS THAT WE DON’T PROMISE ABOUT OUR SERVICES AND YOU USE THE SERVICES AT YOUR OWN RISK. TO THE EXTENT PERMITTED BY APPLICABLE LAWS, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. FEVER HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. BY WAY OF EXAMPLE, FEVER MAKES NO WARRANTY THAT (A) THE SERVICES (OR ANY PORTION OF THE SERVICES) WILL MEET YOUR REQUIREMENTS OR
EXPECTATIONS; (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; OR (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE. YOU ACKNOWLEDGE THAT FEVER HAS NO CONTROL OVER AND DOES NOT GUARANTEE THE QUALITY, SAFETY OR LEGALITY OF EVENTS ADVERTISED, THE TRUTH OR ACCURACY OF ANY USERS’ (INCLUDING CUSTOMERS’, OTHER NON-ORGANIZERS’ AND ORGANIZERS’) CONTENT OR LISTINGS OR THE ABILITY OF ANY USER (INCLUDING CUSTOMERS AND ORGANIZERS) TO PERFORM OR ACTUALLY COMPLETE A TRANSACTION AND FEVER IS NOT AFFILIATED WITH, AND HAS NO AGENCY OR EMPLOYMENT RELATIONSHIP WITH, ANY THIRD PARTY SERVICE PROVIDER USED IN CONJUNCTION WITH THE SERVICES, AND FEVER HAS NO RESPONSIBILITY FOR, AND HEREBY DISCLAIMS ALL LIABILITY ARISING FROM, THE ACTS OR OMISSIONS OF ANY SUCH THIRD PARTIES. NOTHING IN THESE TERMS OF SERVICE IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY WILLFUL ACTS, NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THOSE LIABILITY AND OTHER LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION (IF ANY) WILL APPLY TO YOU AND OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
6.3 Limitation of Liability
NOTHING IN THESE TERMS OF SERVICE IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY WILLFUL ACTS, NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THOSE LIABILITY AND OTHER LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION (IF ANY) WILL APPLY TO YOU AND OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
We Discover provides a marketplace in which Customers and Event Organizers can transact. However, We Discover could not function if it were held responsible for the actions or inactions of different Customers, Organizers and/or third parties both on and off the Services. Therefore, as an inducement to We Discover permitting you to access and use the Services, you hereby agree to release We Discover, and its affiliates and subsidiaries, and each of its and their respective officers, directors, agents, partners and employees from all damages (whether direct, indirect, incidental, consequential or otherwise), losses, liabilities, costs and expenses of every kind and nature, known and unknown, arising out of or in any way connected with disputes between you and third parties (including other Users) in connection with the Services or any event listed on the Services. In addition, you waive any applicable law or statute, which says, in substance: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE RELEASING PARTY 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 RELEASED PARTY."
The trademarks, service marks and logos of We Discover (the “We Discover Trademarks”) used and displayed in connection with the Services are registered and unregistered trademarks or service marks of We Discover. Other company, product and service names used in connection with the Services may be trademarks or service marks owned by third parties (the “Third Party Trademarks,” and, collectively with We Discover Trademarks, the “Trademarks”). The offering of the Services shall not be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed in connection with the Services without the prior written consent of We Discover specific for each such use. The Trademarks may not be used to disparage We Discover, any third party or We Discover’s or such third party’s products or services, or in any manner that may damage any goodwill in the Trademarks. Use of any Trademarks as part of a link to or from any site is prohibited unless We Discover approves the establishment of such a link by prior written consent specific for each such link. All goodwill generated from the use of any Fever Trademark shall inure to We Discover’s benefit.
6.6 Patents; Copyrights
Notices to you may be sent via either email or regular mail to the address in Fever’s records. The Services may also provide notices of changes to these Terms of Service or other matters by displaying notices or links to notices to you generally on the Services. If you wish to contact We Discover or deliver any notice, you can do so as follows:
A) By post:
We Discover, LLC.
4421 Pacific Coast hwy, E202, Torrance, 90505, California, Unites States
B) By Email: [email protected]
6.8 Entire Agreement
6.9 Choice of Law
Except as set forth in Section 6.10 below, these Terms of Service and the provision of the Services to you are governed by the laws of the state of California, U.S.A., without reference to principles of conflict of laws.
6.10 BINDING ARBITRATION
ONLY FOR USERS LOCATED IN THE UNITED STATES:
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS. ANY DISPUTE OR CLAIM UNDER THESE TERMS OF SERVICE OR WITH RESPECT TO THE SERVICES WILL BE SETTLED BY BINDING ARBITRATION OR IN SMALL CLAIMS COURT (TO THE EXTENT THE CLAIM QUALIFIES) AND WILL TAKE PLACE ON AN INDIVIDUAL BASIS ONLY; CLASS, CONSOLIDATED OR REPRESENTATIVE ARBITRATIONS AND CIVIL ACTIONS ARE NOT PERMITTED ONCE THIS SECTION IS EFFECTIVE
(a) Contact Us First
If you have a question or concern about the Services, please contact us first. Our customer support team will try to answer your question or resolve your concern.
(b) Agreement to Arbitrate
In the unlikely event that our customer support team is unable to resolve your concerns, we each hereby agree to resolve any and all disputes or claims under these Terms of Service or with respect to the Services through binding arbitration or in small claims court (to the extent the claim qualifies) instead of in courts of general jurisdiction and only on an individual basis and not as part of any purported class, consolidated or representative proceeding. Arbitration, which is often cheaper, faster and less formal than a lawsuit in court, uses a neutral arbitrator instead of a judge or jury. Arbitrators can award the same damages and relief as a court. Binding arbitration is subject to very limited review. Only the arbitrator appointed pursuant to this Section, and not any federal, state or local court or agency, shall have the authority to resolve any dispute or claim relating to this Section, including, without limitation, the scope, enforceability and arbitrability of these Terms of Service. This arbitration provision shall survive termination of these Terms of Service. These Terms of Service evidence a transaction in interstate commerce and the interpretation and enforcement of this Section 6.10 is governed by the Federal Arbitration Act, notwithstanding the choice of law set forth in Section 6.9 above.
(c) Scope of Agreement
This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to: (i) all claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; (ii) all claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising); and (iii) all claims that may arise after termination of these Terms of Service and/or your use of the Services. (d) Exceptions
(e) No Class Actions.
YOU AND FEVER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, CONSOLIDATED OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT PRESIDE OVER ANY FORM OF CLASS, CONSOLIDATED OR REPRESENTATIVE PROCEEDING AND MAY ONLY PROVIDE RELIEF IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM.
(f) Notice of Dispute.
A party who intends to seek arbitration must first send to the other a written Notice of Dispute (“Notice”). The Notice to We Discover must be addressed to the address in Section 6.7 above (“Notice Address”) and must be sent by certified mail. The Notice to you must be addressed to a mailing, home or payment address currently on record with Fever and must be sent by certified mail. If We Discover has no records of such physical address, such notice may be delivered to your We Discover account email address. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought. If We Discover and you do not reach an agreement to resolve the claim within sixty (60) calendar days after the Notice is received, you or We Discover may commence an arbitration proceeding.
(g) Arbitration Proceedings.
The arbitration will be governed by the Commercial Arbitration Rules, or, if the actions giving rise to the dispute or claim relate to your personal or household use of the Services (rather than business use), the Consumer Arbitration Rules (in each case, the “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Section 6.10, and will be administered by the AAA and settled by a single arbitrator. The AAA Rules are available online at adr.org or by calling the AAA at 1-800-778-7879. The arbitrator is bound by the terms of these Terms of Service. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Section 6.10. Unless Fever and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location in the United States for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, AAA shall determine the location. If your claim is for ten thousand dollars ($10,000) or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds ten thousand dollars ($10,000), the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. All decisions by the arbitrator shall be final and binding and judgment on the award rendered may be entered in any court having jurisdiction.
(h) Costs of Arbitration; Legal Fees.
i. Payment of all filing, administration, and arbitrator costs and expenses imposed by AAA will be governed by the AAA rules, provided that if you are initiating an arbitration against We Discover and the value of the relief sought is ten thousand dollars ($10,000) or less, then We Discover will advance all filing, administrative and arbitration costs and expenses imposed by AAA (subject to reimbursement as set forth below). If the circumstances in the preceding sentence apply, but the value of relief sought is more than ten thousand dollars ($10,000) and you demonstrate to the arbitrator that such costs and expenses would be prohibitively more expensive than a court proceeding, then We Discover will pay the amount of any such costs and expenses that the arbitrator determines are necessary to prevent the arbitration from being prohibitively more expensive than a court proceeding (subject to reimbursement as set forth below). In the event that the arbitrator determines that all of the claims you assert in arbitration are frivolous according to Federal Rule of Civil Procedure 11, you agree to reimburse Fever for all such cost and expenses that Fever paid and that you would have been obligated to pay under the AAA rules.
ii. Just as in any court proceeding, each party will initially bear its own attorneys’ fees and expenses in connection with any arbitration. Should either party be determined to have substantially prevailed in the arbitration, then upon such party’s request, the arbitrator shall award such prevailing party the reasonable attorneys’ fees and expenses that it incurred in connection with the arbitration, provided that to the extent that the dispute or claim relate to your personal or household use of the Services (rather than business use) Fever will not seek to recover its attorneys’ fees and expenses in an arbitration initiated by you. The arbitrator may make rulings and resolve disputes as to the reimbursement of attorneys’ fees and expenses upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits.
(i) Future Changes.
Notwithstanding any provision in these Terms of Service to the contrary, you and We Discoveragree that if Fever makes any future change to this arbitration provision (other than a change to the Notice Address) Fever will provide you with notice of such change and you may reject any such change by sending us written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision as unmodified by such rejected change.
(j) Special Severability.
In the event that the provisions of Section 6.10(e) above are found to be invalid or unenforceable for any dispute or claim, then, notwithstanding Section 6.11, the entirety of this Section 6.10 shall be null and void with respect to such dispute or claim and Section 6.12 shall apply in lieu of this Section 6.10.
6.11 Waiver; Invalid Provisions
The failure or delay of We Discover to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision. No oral waiver, amendment or modification shall be effective under any circumstance whatsoever. If any provision of these Terms of Service is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavour to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service shall remain in full force and effect.
6.12 Judicial Forum
In the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute for any reason, then any dispute or claim not subject to arbitration shall be resolved exclusively by a federal court located in the city of Los Angeles, California, and to the extent there is no subject matter jurisdiction in such federal court, then a state court in the State of California. Both you and We Discover agree to submit to the personal jurisdiction and venue of such courts and agree that such forum is convenient.
Any Section titles in these Terms of Service are for convenience only and have no legal or contractual effect.