Sindarin Terms of Use
Last Updated: June 9th, 2023
PLEASE READ THIS TERMS OF USE AGREEMENT (“AGREEMENT”) CAREFULLY. THIS AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU (“USER”) AND SINDARIN, INC. (“SINDARIN,” “COMPANY,” “WE” OR “US”) FOR THE USE OF THE E-INK HEADSET (“SOL READER”). By clicking on the “Accept” button and completing the registration process and/or browsing Sol on www.solreader.com or any other website with an authorized link to this Agreement (“Website”), downloading our Sol mobile application (“Application”), or accessing or using any content, information, services, features, music, images, video, text or any other resources or materials related to Sindarin or made available via the Website or Application (collectively, the “Services”), you: (1) agree to be bound by this Agreement and any future amendments and additions to this Agreement as published through the Services; (2) represent you are of legal age in your jurisdiction of residence to form a binding contract; (3) represent that you have the authority to enter into this Agreement personally and, if applicable, on behalf of any company, organization or other legal entity on whose behalf you use the Services; and (4) acknowledge that you have read and understood this Agreement, and agree to be bound by its terms and conditions. Except as otherwise provided herein, if you do not agree to be bound by (or cannot comply with) this Agreement, you may not access, copy, install or use the Services.
IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE AGREEMENT WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT SINDARIN’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU OPT OUT OF THE AUTO-RENEWAL IN ACCORDANCE WITH SECTION 8.4 BELOW.
PLEASE BE AWARE THAT SECTION 17 OF THE AGREEMENT BELOW CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND SINDARIN HAVE AGAINST EACH OTHER WILL BE RESOLVED, INCLUDING WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THE AGREEMENT. SECTION 17 CONTAINS, AMONG OTHER THINGS, AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND SINDARIN BE RESOLVED BY BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN 30 DAYS OF THE EFFECTIVE DATE OF THE AGREEMENT: (1) YOU AND SINDARIN WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST THE OTHER PARTY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND EACH OF US WAIVES OUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) EACH OF US IS WAIVING OUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
PLEASE READ THE HEALTH AND SAFETY WARNINGS IN SECTION 10 BELOW, ESPECIALLY IF YOU ARE PREGNANT, ELDERLY, HAVE PRE-EXISTING BINOCULAR VISION ABNORMALTIES OR PSYCHIATRIC DISORDERS, OR SUFFER FROM A HEART CONDITION OR OTHER SERIOUS MEDICAL CONDITION.
Please note that this Agreement is subject to change by Sindarin in our sole discretion at any time. When changes are made, we will make a new copy of the Agreement available on the Website and update the “Last Updated” date at the top of the Agreement. If we make any material changes, and you have registered with us to create an Account (as defined in Section 2.1 (Registering Your Account) below) we will also send an e-mail to you at the last e-mail address you provided to us pursuant to this Agreement. Any changes to this Agreement will be effective immediately for new users of the Services and will be effective thirty (30) days after posting notice of such changes on the Website for existing Registered Users. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Services and terminate your Account with us. Otherwise, your continued use of the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT AGREEMENT.
1. USE OF THE SERVICES AND SINDARIN PROPERTIES.
1.1 Services Description. Sindarin provides the Sol Reader, which is designed for reading eBooks or other documents while lying down (or in any other position where holding an eReader may be uncomfortable) without needing to constantly hold the eReader with your arms. The Sol Reader works in conjunction with a wireless remote featuring page turn buttons.
1.2 Services License. The Application, the Website, the Services and the information and content available on the Website and in the Application and the Services (each, a “Sindarin Property” and collectively, the “Sindarin Properties”), are protected by copyright laws throughout the world and may be owned by the Company or third parties. You agree not to make any use of the Sindarin Properties that would infringe the copyright therein. Subject to the Agreement, Sindarin grants you a limited license to reproduce obtain, listen to, view or read (as the case may be) portions of Sindarin Properties that may be obtained by you in digital form for the sole purpose of using the Services for your personal, non-commercial entertainment purposes. Unless otherwise specified by Sindarin in a separate license, your right to use any and all Sindarin Properties is subject to the Agreement and applicable copyright law. You represent, warrant and agree that you are using the Sindarin Properties for your own personal, non-commercial entertainment use and not for redistribution or transfer of any kind.
1.3 Application License. Subject to your compliance with the Agreement, Sindarin grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a device that you own or control and to run such copy of the Application solely for your own personal, non-commercial entertainment purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Application access through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the Application on a shared basis within your designated family group.
1.4 Updates. You understand that Sindarin Properties are evolving. As a result, Sindarin may require you to accept updates to Sindarin Properties that you have installed on your computer or mobile device. You acknowledge and agree that Sindarin may update Sindarin Properties with or without notifying you. You may need to update third-party software from time to time in order to use Sindarin Properties.
1.5 Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, broadcast, publicly perform or display, host or otherwise commercially exploit Sindarin Properties or any portion of Sindarin Properties, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Sindarin Properties (including images, text, page layout or form) of Sindarin; (c) you shall not use any metatags or other “hidden text” using Sindarin’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile, reverse engineer, or reduce to source code or human-readable form any part of Sindarin Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website 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); (f) you shall not access Sindarin Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of Sindarin Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Sindarin Properties or otherwise attempt to modify any Sindarin Properties for any reason whatsoever, including for the purpose of disguising or changing any indications of the ownership or source of the applicable Sindarin Property. Any future release, update or other addition to Sindarin Properties shall be subject to the Agreement. Sindarin, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Sindarin Property terminates the licenses granted by Sindarin pursuant to the Agreement.
1.6 Third-Party Materials. As a part of Sindarin Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Sindarin to monitor such materials and that you access these materials at your own risk.
2. REGISTRATION.
2.1 Registering Your Account. In order to access certain features of Sindarin Properties you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a User who has a valid account with the provider of the Application for the User’s mobile device.
2.2 Registration Data. In registering an account on the Website, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (l) at least eighteen (18) years old; (m) of legal age to form a binding contract; and (n) not a person barred from using Sindarin Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Sindarin Properties by minors. However, if you conclude that the Services are appropriate for your teenage child, you may exercise your judgment to allow your teenage child to use the Services under your close supervision; provided that you will remain responsible for any such use by your teenage child. You may not share your Account or password with anyone, and you agree to (y) notify Sindarin immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Sindarin has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Sindarin has the right to suspend or terminate your Account and refuse any and all current or future use of Sindarin Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or SNS at any given time. Sindarin reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use Sindarin Properties if you have been previously removed by Sindarin, or if you have been previously banned from any of Sindarin Properties.
2.3 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Sindarin.
2.4 Necessary Equipment. You must provide all equipment and software necessary to connect to the Services including but not limited to, a mobile device that is suitable to connect with and use the Application. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
3. RESPONSIBILITY FOR CONTENT.
3.1 Types of Content. You acknowledge that all Content, including Sindarin Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not Sindarin, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Sindarin Properties (“Your Content”), and that you and other Users of Sindarin Properties, and not Sindarin, are similarly responsible for all Content that you and they Make Available through Sindarin Properties (“User Content”).
3.2 No Obligation to Pre-Screen Content. You acknowledge that Sindarin has no obligation to pre-screen Content (including, but not limited to, User Content), although Sindarin reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Sindarin pre-screens, refuses or removes any Content, you acknowledge that Sindarin will do so for Sindarin’s benefit, not yours. Without limiting the foregoing, Sindarin shall have the right to remove any Content that violates the Agreement or is otherwise objectionable.
3.3 Storage. Unless expressly agreed to by Sindarin in writing elsewhere, Sindarin has no obligation to store any of Your Content that you Make Available on Sindarin Properties. Sindarin has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Sindarin Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Sindarin retains the right to create reasonable limits on Sindarin’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Sindarin in its sole discretion.
4. OWNERSHIP.
4.1 Sindarin Properties. Except with respect to Your Content and User Content, you agree that Sindarin and its suppliers own all rights, title and interest in Sindarin Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Sindarin Properties.
4.2 Trademarks. Sindarin, Sol Reader and all related graphics, logos, service marks and trade names used on or in connection with any Sindarin Properties or in connection with the Services are the trademarks of Sindarin and may not be used without permission in connection with your or any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Sindarin Properties are the property of their respective owners.
4.3 Other Content. Except with respect to Your Content, you agree that you have no right, title, or interest in or to any Content that appears on or in Sindarin Properties.
4.4 Your Content. Sindarin does not claim ownership of Your Content. However, when you as a User post or publish Your Content on or in Sindarin Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
4.5 License to Your Content. Subject to any applicable account settings that you select, you grant Sindarin a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing Sindarin Properties to you and to our other Users. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of Sindarin Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Sindarin, are responsible for all of Your Content that you Make Available on or in Sindarin Properties.
4.6 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Sindarin through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Sindarin has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Sindarin a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Sindarin Properties and/or Sindarin’s business.
5 USER CONDUCT. As a condition of use, you agree not to use the Services for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) Make Available any Content on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of Sindarin; (vi) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by this Agreement; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”.
6 INVESTIGATIONS. Sindarin may, but is not obligated to, monitor or review Sindarin Properties and Content at any time. Without limiting the foregoing, Sindarin shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Agreement or any applicable law. Although Sindarin does not generally monitor user activity occurring in connection with Sindarin Properties or Content, if Sindarin becomes aware of any possible violations by you of any provision of the Agreement, Sindarin reserves the right to investigate such violations, and Sindarin may, at its sole discretion, immediately terminate your license to use Sindarin Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
7. THIRD-PARTY SERVICES.
7.1 Third-Party Websites and Applications. Sindarin Properties may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”) and its associated services, software, content, data, information and material. When you click on a link to a Third-Party Website or Third-Party Application, we will not warn you that you have left Sindarin Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites and Third-Party Applications are not under the control of Sindarin. Sindarin is not responsible for any Third-Party Websites or Third-Party Applications. Sindarin provides these Third-Party Websites and Third-Party Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Applications, or any product or service provided in connection therewith. You use all links in Third-Party Websites and Third-Party Applications at your own risk. When you leave our Website or Application, the Agreement and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
7.2 App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Agreement is between you and Sindarin and not with the App Store. Sindarin, not the App Store, is solely responsible for Sindarin Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Sindarin Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Sindarin Property, including the Application. You acknowledge that the App Store (and its subsidiaries), as well as all third-party owners of Sindarin Properties and Content, are third-party beneficiaries of the Agreement and will have the right to enforce it.
7.3 Accessing and Downloading the Application from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) the Agreement is concluded between you and Sindarin only, and not Apple, and (ii) Sindarin, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Sindarin and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Sindarin.
(d) You and Sindarin acknowledge that, as between Sindarin and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and Sindarin acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Sindarin and Apple, Sindarin, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
(f) You and Sindarin acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
8. FEES AND PURCHASE TERMS.
8.1 Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide Sindarin with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account of a payment provider (“Payment Provider”) to access certain features of the Services. Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities. Sindarin uses third party payment processors, which may include Stripe, Inc. and its affiliates as its third party service provider for payment services (e.g., card acceptance, merchant settlement, and related services) (a “Payment Processor”). By completing a payment on our Services, you agree to be bound by the Payment Processor’s privacy policy and its terms of service and hereby consent and authorize Sindarin and its Payment Processor to share any information and payment instructions you provide with one or more Payment Processor(s) to the extent required to complete your transactions. By providing your credit card number and associated payment information, you agree that Sindarin, or its Payment Processor on Sindarin’s behalf, is authorized to immediately invoice your Account for all fees as they become due and payable and that no additional notice or consent is required. You agree to immediately update your payment settings with any changes in your billing address or the credit card used for payment hereunder. By providing Sindarin with your credit card number or PayPal account and associated payment information, you agree that Sindarin is authorized to immediately invoice your Account for all fees and charges due and payable to Sindarin hereunder and that no additional notice or consent is required. You agree to immediately notify Sindarin of any change in your billing address or the credit card or PayPal account used for payment hereunder. Sindarin reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Services or by e-mail delivery to you.
8.2 Service Subscription Fees. You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you create your Account and select your monthly or annual subscription package (each, a “Service Commencement Date”). Except as set forth in the Agreement, all fees for the Services are non-refundable. No contract will exist between you and Sindarin for the Services until Sindarin accepts your order by a confirmatory e-mail or other appropriate means of communication.
8.3 Taxes. Sindarin’s fees are net of any applicable Sales Tax. If any Services, or payments for any Services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Sindarin, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Sindarin for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Sindarin is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
8.4 Automatic Renewal. Your subscription will continue indefinitely until terminated in accordance with the Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each, a “Renewal Commencement Date”) and continue for an additional equivalent period, at Sindarin’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription before your Renewal Commencement Date. If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please contact Sindarin at support@solreader.com or log in and go to the “Change/Cancel Membership” page on your “Account Settings” page. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. Upon renewal of your subscription, if Sindarin does not receive payment from your Payment Provider, you agree that Sindarin may either terminate or suspend your subscription, and continue to attempt to charge your Payment Provider until payment is received.
8.5 Free Trials and Other Promotions. Any free trial or other promotion that provides a Registered User access to the Services must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable subscription fee. If you are inadvertently charged for a subscription, please contact Sindarin to have the charges reversed.
9. INDEMNIFICATION. You agree to indemnify and hold Sindarin, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Sindarin Party” and collectively, the “Sindarin Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any Sindarin Property; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. Sindarin reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Sindarin in asserting any available defenses. This provision does not require you to indemnify any of the Sindarin Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to Sindarin Properties.
10. HEALTH AND SAFETY WARNINGS. In the event you use the Sol Reader in connection with your use of or participation in the Application, please read the warnings in this Section 10 below carefully before using the Sol Reader or the Application to reduce the risk of personal injury, discomfort or property damage. We may update or revise these warnings and instructions, so please review them periodically.
10.1 Before Using the Sol Reader. Review the hardware and software recommendations for use of the Sol Reader. Your Sol Reader and the Application are not designed for use with any unauthorized device, accessory and/or software. Use of an unauthorized device, accessory and/or software may result in injury to you or others, may cause performance issues or damage to your system and related services. Before using the Sol Reader, please read and follow all setup and operating instructions provided by the manufacturer of the Sol Reader. People who are prone to motion sickness in the real world may have a heightened risk of experiencing discomfort while using a Sol Reader in connection with the Application. Such individuals should take extra care to read and following these warnings carefully. Sindarin recommends seeing a doctor before using the Sol Reader in connection with the Application if you are pregnant, elderly, have pre-existing binocular vision abnormalities or psychiatric disorders, or suffer from a heart condition or other serious medical condition.
10.2 General Instructions and Precautions. USE ONLY IN A SAFE ENVIRONMENT. The use of Sol Readers distracts you from and completely blocks your view of your actual surroundings. Always be aware of your surroundings when using a Sol Reader and remain seated at all times. Take special care to ensure that you are not near other people, objects, stairs, balconies, windows, furniture, or other items that you can bump into or knock down when using – or immediately after using – a Sol Reader. Do not handle sharp or otherwise dangerous objects while using a Sol Reader. Take at least a 10 to 15 minute break every 30 minutes, even if you do not think you need it. Each person is different, so take more frequent and longer breaks if you feel discomfort.
10.3 Seizures. Some people may have severe dizziness, seizures, epileptic seizures or blackouts triggered by light flashes or patterns, and this may occur while they are watching TV, playing video games or experiencing virtual reality, even if they have never had a seizure or blackout before or have no history of seizures or epilepsy. Such seizures are more common in children and young people under the age of 20. ANYONE WHO HAS HAD A SEIZURE, LOSS OF AWARENESS, OR OTHER SYMPTOM LINKED TO AN EPILEPTIC CONDITION SHOULD SEE A DOCTOR BEFORE USING A SOL READER IN CONNECTION WITH THE APPLICATION.
10.4 Discomfort. Immediately discontinue use of your Sol Reader when using the Application if anyone using the Sol Reader experiences any of the following symptoms: seizures; loss of awareness; eye strain; eye or muscle twitching; involuntary movements; altered, blurred or double vision or other visual abnormalities; dizziness; disorientation; impaired balance; impaired hand-eye coordination; excessive sweating; increased salivation; nausea; lightheadedness; discomfort or pain in the head or eyes; fatigue; or any symptoms similar to motion sickness. If you continue to have any of the above symptoms or other discomfort during or after using the Sol Reader, stop use and see a doctor.
10.5 Children. The Sol Reader should not be used by children under the age of 13. Adults should make sure children (age 13 and older) use the Sol Reader in accordance with these health and safety warnings including making sure the Sol Reader is used as described in the subsection entitled “Before Using the Sol Reader” and the subsection entitled “General Instructions and Precautions.” Adults should monitor children (age 13 and older) who are using or have used the Sol Reader for any of the symptoms described in these health and safety warnings (including those described under the subsection entitled “Discomfort”), and should limit the time children spend using the Sol Reader and ensure they take breaks during use.
11. DISCLAIMER OF WARRANTIES AND CONDITIONS.
11.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF SINDARIN PROPERTIES IS AT YOUR SOLE RISK, AND SINDARIN PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. SINDARIN PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SINDARIN PROPERTIES, THIRD-PARTY WEBSITES, APPLICABLE APP STORE(S), AND THIRD-PARTY APPLICATIONS.
(a) SINDARIN PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) SINDARIN PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF SINDARIN PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF SINDARIN PROPERTIES WILL BE ACCURATE OR RELIABLE.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH SINDARIN PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS SINDARIN PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. SINDARIN MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SINDARIN OR THROUGH SINDARIN PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e) FROM TIME TO TIME, SINDARIN MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEASTURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT SINDARIN’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
11.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT SINDARIN PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD SINDARIN PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
12. LIMITATION OF LIABILITY.
12.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL SINDARIN PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT SINDARIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF SINDARIN PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE SINDARIN PROPERTIES; (2) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (3) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON SINDARIN PROPERTIES; OR (4) ANY OTHER MATTER RELATED TO SINDARIN PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A SINDARIN PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A SINDARIN PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A SINDARIN PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL SINDARIN PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO SINDARIN BY YOU DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY AND (B) ONE HUNDRED US DOLLARS (U.S. $100). THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A SINDARIN PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A SINDARIN PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A SINDARIN PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.3 User Content. EXCEPT FOR SINDARIN’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE SINDARIN’S PRIVACY POLICY, SINDARIN ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
12.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SINDARIN AND YOU.
13. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. It is Sindarin’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Sindarin by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on Sindarin Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on Sindarin Properties of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Sindarin’s Copyright Agent for notice of claims of copyright infringement is as follows: [insert Copyright Agent contact information].
14. REMEDIES.
14.1 Violations. If Sindarin becomes aware of any possible violations by you of the Agreement, Sindarin reserves the right to investigate such violations. If, as a result of the investigation, Sindarin believes that criminal activity has occurred, Sindarin reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Sindarin is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Sindarin Properties, including Your Content, in Sindarin’s possession in connection with your use of Sindarin Properties, to (a) comply with applicable laws, legal process or governmental request; (b) enforce this Agreement, (c) respond to any claims that Your Content violates the rights of third parties, (d) respond to your requests for customer service, or (e) protect the rights, property or personal safety of Sindarin, its Users or the public, and all enforcement or other government officials, as Sindarin in its sole discretion believes to be necessary or appropriate.
14.2 Breach. In the event that Sindarin determines, in its sole discretion, that you have breached any portion of the Agreement, or have otherwise demonstrated conduct inappropriate for Sindarin Properties, Sindarin reserves the right to:
(a) Warn you via e-mail (to any e-mail address you have provided to Sindarin) that you have violated the Agreement;
(b) Delete any of Your Content provided by you to Sindarin Properties;
(c) Discontinue your registration(s) with any of Sindarin Properties;
(d) Discontinue your subscription to any Services;
(e) Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
(f) Pursue any other action which Sindarin deems to be appropriate.
15. TERM AND TERMINATION.
15.1 Term. The Agreement commences on the date when you accept it (as described in the preamble above) and remains in full force and effect while you use Sindarin Properties, unless terminated earlier in accordance with the Agreement.
15.2. Termination of Services by Sindarin. Except as set forth above, the Service Subscription Fee for any Service shall be non-refundable. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Agreement, or if Sindarin is required to do so by law (e.g., where the provision of the Website, the Application or the Services is, or becomes, unlawful), Sindarin has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Sindarin’s sole discretion and that Sindarin shall not be liable to you or any third party for any termination of your Account.
15.3. Termination of Services by You. If you want to terminate the Services provided by Sindarin, you may do so by (a) notifying Sindarin at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Sindarin’s address set forth below. THE SERVICES WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 8.4.
15.4. Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Sindarin will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
16. INTERNATIONAL USERS. Sindarin Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Sindarin intends to announce such Services or Content in your country. Sindarin Properties are controlled and offered by Sindarin from its facilities in the United States of America. Sindarin makes no representations that Sindarin Properties are appropriate or available for use in other locations. Those who access or use Sindarin Properties from other countries do so at their own volition and are responsible for compliance with local law.
17. DISPUTE RESOLUTION. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires that you and Sindarin arbitrate disputes against one another. PLEASE BE AWARE THAT THIS SECTION 17 CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND SINDARIN HAVE AGAINST EACH OTHER WILL BE RESOLVED. AMONG OTHER THINGS, THIS SECTION 17 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND SINDARIN BE RESOLVED BY BINDING AND FINAL ARBITRATION. THIS SECTION 17 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ THIS SECTION 17 CAREFULLY.
17.1. Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Sindarin agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services or the Agreement and prior versions of the Agreement, including claims and disputes that arose between us before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and Sindarin may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Sindarin may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of this Agreement.
17.2. Informal Dispute Resolution. There might be instances when a Dispute arises between you and Sindarin. If that occurs, Sindarin is committed to working with you to reach a reasonable resolution. You and Sindarin agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Sindarin therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Sindarin that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to hello@solreader.com or regular mail to our offices located at 431 Bryant Street, San Francisco, CA 94107. The Notice must include: (1) your name, telephone number, mailing address, email address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
17.3. Waiver of Jury Trial. YOU AND SINDARIN HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Sindarin are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
17.4. Waiver of Class or Other Non-Individualized Relief. YOU AND SINDARIN AGREE THAT, EXCEPT AS SPECIFIED IN THE SUBSECTION ENTITLED “BATCH ARBITRATION”, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party's individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Sindarin agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of California. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Sindarin from participating in a class-wide settlement of claims.
17.5. Rules and Forum. The Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Sindarin agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and Sindarin otherwise agree, or the Batch Arbitration process discussed in the subsection entitled “Batch Arbitration” is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules.
You and Sindarin agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
17.6. Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the State of California and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under the subsection entitled “Batch Arbitration” is triggered, the AAA will appoint the arbitrator for each batch.
17.7. Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
17.8. Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Sindarin need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys' fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
17.9. Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Sindarin agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Sindarin by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Sindarin.
You and Sindarin agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
17.10. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: [insert address], within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
17.11. Invalidity, Expiration. Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Sindarin as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
17.12. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Sindarin makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Sindarin at 431 Bryant Street, San Francisco, CA 94107, your continued use of the Services following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products distributed through the Services or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted the Agreement (or accepted any subsequent changes to Agreement) remain in full force and effect. Sindarin will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
18. GENERAL PROVISIONS.
18.1 Electronic Communications. The communications between you and Sindarin may take place via electronic means, whether you visit Sindarin Properties or send Sindarin e-mails, or whether Sindarin posts notices on Sindarin Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Sindarin in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Sindarin provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
18.2 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Sindarin’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
18.3 Force Majeure. Sindarin shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
18.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Sindarin Properties, please visit https://www.getSindarin.com/contact. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
18.5 Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
18.6 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Sindarin agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in San Francisco, California.
18.7 Notice. Where Sindarin requires that you provide an e-mail address, you are responsible for providing Sindarin with your most current e-mail address. In the event that the last e-mail address you provided to Sindarin is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Sindarin’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Sindarin at the following address: Sindarin, Inc. 431 Bryant Street, San Francisco, CA 94107. Such notice shall be deemed given when received by Sindarin by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
18.8 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
18.9 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
18.10 Export Control. You may not use, export, import, or transfer Sindarin Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Sindarin Properties, and any other applicable laws. In particular, but without limitation, Sindarin Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Sindarin Properties, you represent and warrant that (y) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Sindarin Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Sindarin are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Sindarin products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
18.11. Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
18.12. Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.