Last updated: May 28, 2019
These Terms of Service (the “Terms”) apply to your use of the Fishbrain mobile application, our website at www.fishbrain.com (collectively with our apps and websites, the “Sites”), our platform to sell fishing-related goods and services (the “Fishbrain Shop”), and our other applications, software, features, tools, and services related to any of the foregoing (collectively, the “Services”). The Fishbrain Sites are made provided by Fishbrain AB, Reg. No 556796-5370, a company duly incorporated and organized under the laws of Sweden, having its registered address at Drottninggatan 26, 111 51 Stockholm, Sweden [(the “Fishbrain Sites Entity”). The Fishbrain Shop is provided by Fishbrain Inc., a Delaware, U.S., corporation having a place of business at 55 Shuman Blvd., Suite 850, Naperville, IL, 60563 (the “Fishbrain Shop Entity”). The Fishbrain Sites Entity and the Fishbrain Shop Entity are referred to collectively as “Fishbrain.” As used herein, ‘Fishbrain’, ‘we,’ and ‘us’ refers to Fishbrain AB and/or Fishbrain Inc., as applicable. You are referred to herein as “you.” Users of the Services are referred to herein as “Users.” The Fishbrain Sites and Services related thereto are provided pursuant to the laws of Sweden and the Fishbrain Shop and Services related thereto are provided pursuant to the laws of the state of Delaware, U.S.
BY ACCESSING, USING OR UPLOADING OR DOWNLOADING ANY INFORMATION OR MATERIALS TO OR FROM THE SERVICES, BY CREATING AN ACCOUNT, OR BY CLICKING “SIGN UP” OR ANY SIMILAR MECHANISM, YOU ARE AGREEING TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR USE THE SERVICES. This agreement was written in English. To the extent a translated version of the Terms conflict with the English version, the English version controls.
NOTICE REGARDING DISPUTE RESOLUTION: THESE TERMS CONTAIN PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN YOU AND FISHBRAIN ARE RESOLVED, INCLUDING AN AGREEMENT TO ARBITRATE, WHICH WILL, UNLESS YOU RESIDE IN THE EUROPEAN UNION, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION AND LIMIT YOU TO CLAIMS AGAINST FISHBRAIN ON AN INDIVIDUAL BASIS, UNLESS YOU OPT-OUT IN ACCORDANCE WITH THE INSTRUCTIONS BELOW.
The Services are intended solely for persons who are 13 years old or such higher age required in your country to use the Services. If you are under the legal age to form a binding contract in your jurisdiction, you represent that your parent or legal guardian has reviewed and agreed to these Terms on your behalf.
To use the Services, you must register. You agree to: (a) provide true, accurate, current and complete information about yourself (collectively, “Registration Data”) and (b) maintain and promptly update the User Data. You agree that Fishbrain may use your User Data to provide Services that you access or use and as otherwise set forth in these Terms. If you provide any User Data that is inaccurate or not current, or Fishbrain has reasonable grounds to suspect that such User Data is inaccurate or not current, Fishbrain has the right to suspend or terminate your account and refuse current or future use of the Services. In consideration of your use of the Services, you represent that you are not a person barred from receiving services under the laws of any applicable jurisdiction.
You are solely responsible for maintaining the confidentiality of the password associated with your account and for restricting access to your password, and for restricting access to your computer and your mobile device while logged into the Services. You accept responsibility for all activities that occur under your account or from your computer and mobile devices. We endeavor to use reasonable security measures to protect against unauthorized access to your account. We cannot, however, guarantee absolute security of your account, your Content (as defined below), or the personal information you provide, and we cannot promise that our security measures will prevent third-parties from illegally accessing the Services or its contents. You agree to immediately notify Fishbrain of any unauthorized use of your account or password, or any other breach of security, and confirm that you understand all risks of unauthorized access to User Data and any other information or content you provide to Fishbrain.
You acknowledge that you are fully responsible for obtaining all relevant fishing permits or other authorizations needed in order to fish at a location which may be presented to you in our Services. You agree not to use our Service in connection with any unpermitted, unauthorized, illegal, or dangerous (to you or others) fishing or other activities.
Fishbrain holds the qualities of respect for others and originality of creation in high regard. When you use or interact with our Services and/or with other Users of the Services, you may elect to send, display, distribute, use, submit, upload, communicate, transmit, or otherwise make available to us and/or to other Users of the Services content, including but not limited to information, data, photographs, video, text, sound, software, graphics, messages, posts, tags information on your geographical position ratings, reviews, comments, opinions, and other content (collectively, "Content") whether publicly posted, privately transmitted, or submitted through a third party API (e.g. a photograph submitted via Instagram).
For all Content you use, send, upload, communicate, transmit, or otherwise make available in connection with the Services, you grant to Fishbrain and our affiliates an unlimited, non-exclusive, irrevocable, worldwide, perpetual, royalty-free, fully sublicensable and fully transferable right to use, copy, reproduce, change, modify, adapt, edit, distribute, translate, transfer, host, store, display, create derivative works from, make publicly available and/or perform such Content in relation to our Services throughout the world in any media, including but without limitation for purposes of operating, developing, providing, promoting, and improving the Services and researching and developing new ones. To the fullest extent permitted under applicable law, you waive your moral rights (or "droit moral”) to and/or in the Content. You acknowledge and agree that we may share Content with our affiliates, partners, and companies that we cooperate with, as well as third party services such as Facebook and Instagram.
When you appear in, create, upload, post, or send Content via the Services, you also grant Fishbrain, our affiliates, and our business partners and licensees the unrestricted, worldwide, perpetual right and license to use your name, likeness, and voice, and information about your activities and actions you have taken, including your use of third party products, services, or devices, in ads, offers, and other commercial contexts on the Services and otherwise in connection with commercial or sponsored content without compensation to you. This means, among other things, that you will not be entitled to any compensation from Fishbrain, our affiliates, or our business partners if your name, likeness, or voice is conveyed through the Services, either on the Fishbrain application or on one of our business partner’s platforms.
You agree that the Content you send, upload, communicate, transmit, distribute, display, use, submit, or otherwise make available, and your use of the Services:
Fishbrain appreciates the opportunity to be notified of any objectionable or unauthorized use of Content, and Users, rights holders and licensees are invited to inform Fishbrain of any potential violations by sending an email to us at email@example.com.
Fishbrain hereby reserves the right in its absolute discretion, at any time and for any reason, including to provide and develop the Services or if we think your Content violates these Terms or is otherwise objectionable, to screen, monitor, refuse, remove or edit any Content or activity from the Services, but is not required to do so. Fishbrain is not responsible, and assumes no liability, for any third party content or Content provided by you, nor information contained therein or made available or otherwise used in connection with the Services, and is not responsible for the deletion or loss of any content or the failure of any content to comply with these Terms.
Certain rules must be complied with in order to maintain the integrity, legality, and safety of the Services and to promote the User experience. By using the Services you agree that:
Interactions with Users
The Services function, among other things, as a venue to connect users in a virtual information place. As a neutral facilitator, Fishbrain is not directly involved in the actual interactions between users of the Services. As a result, Fishbrain has no control over the truth, accuracy, quality, legality, or safety of postings made by users of the Services. Fishbrain shall have no responsibility to confirm the identity of users. Fishbrain shall also have no responsibility to confirm or verify the qualifications, background, or abilities of users of the Services. You shall at all time exercise common sense and good judgment when dealing with any User of the Services.
If you elect to use our features to inform your contacts about the Services or share your information with others, Fishbrain may require you to provide contact information. You represent that you are authorized to provide any third party contact information that you provide to Fishbrain, that you are authorized to use such information to contact (including for Fishbrain to contact on your behalf) the third party, and that Fishbrain may process it pursuant to the www.fishbrain.com/privacy.
In addition, if you enable the Services to interact with any third party (such as social network sites), you give us permission to use information which that third party shares with us. You are advised to read third party terms carefully to see what information they might share with us.
You may terminate your account and use of the Services at any time.
You agree that Fishbrain may, without prior notice, immediately terminate your account and/or access to the Services for causes that include but are not limited to, the following: (a) breaches or violations of the Terms or other applicable agreements, policies or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Services (or any portion thereof), (e) unexpected technical or security issues or problems, (f) extended periods of inactivity, and/or (g) nonpayment of any fees owed by you in connection with the Services. Termination of your account may include (x) removal of access to all offerings within the Services, (y) deletion of your information, files, and Content associated with your account, and (z) barring of further use of the Services. All terminations for cause shall be made in Fishbrain’s sole discretion and that Fishbrain shall not be liable to you or any third party for any termination of your account or access to the Services.
All license grants set forth in these Terms and expressly identified as “perpetual” will, along with the following Sections, survive termination for any reason of your account, these Terms, and/or of the Services: Sections 4 (Privacy), 9.2(c) (Recalls), 10 (Third Party Services), 13 (Disclaimer of Warranties and Liability), 15 (Indemnity), 16 (Choice of Law and Forum), 17 (Dispute Resolution and Forum – Fishbrain Shop), and 18 (General).
Fishbrain may change the Services at any time, such as by adding or removing features or discontinuing the Services. We may also suspend or stop the Services altogether. We may take any of these actions at any time, and when we do, we may not provide you with any advance notice.
You may subscribe to Fishbrain's premium service. If you are between 13 and 18 years of age your legal guardian must consent thereto and purchase the subscription for you and you may use the Services only with the involvement of a parent or guardian. We may change our subscription fees from time to time by posting the changes on the Fishbrain site. If you continue to use the Services after the new fees apply you accept and agree to pay the new fees.
The Fishbrain Shop offers a wide array of fishing and related gear for purchase. The Fishbrain Shop is provided by Fishbrain, Inc. and is available only to U.S. Users of the Services. You must have your own Fishbrain account in order to use the Fishbrain Shop, and you may be required to be logged in to the account and have a valid payment method associated with it.
Purchase/Order Processing, Fulfillment, and Shipping.
(a) Order Process. You may place orders to purchase items (“Product(s)”) in the Fishbrain Shop (“Order(s)”) from one of the third party sellers (“Seller(s)”) offering Products there.
(b) Order Fulfillment. Sellers are solely responsible for, and bear all liability for, the fulfillment of each Order, including but not limited to packaging and shipping of Products, and customer service.
(c) Shipping Options. Shipping options for all Products sold through the Fishbrain Shop will be made available to you by Seller at checkout. Products cannot be shipped outside the United States or in any region where the sale of such product violates any policy of the Seller or any or applicable law.
7. Cancellations, Returns, Refunds, and Recalls.
(a) Cancellations and Returns. Returns for Products sold on the Fishbrain Shop that are eligible for return (e.g., not final sale) must be returned within 30 days of receipt of shipment in order to receive a full refund. Products must be returned in the original carton with original packaging, accessories, and instructions.
(b) Refunds. If Seller determines you are due a cash refund, the refund will be made via your original payment method (e.g., credit or debit card).
(c) Recalls. Fishbrain will have no responsibility or liability for any recalls of Products sold through the Fishbrain Shop. Seller is solely responsible for any non-conformity or defect in, or any public or private recall of, Seller’s Products.
Fishbrain attempts to be as accurate as possible. However, product descriptions are provided by sellers, and Fishbrain does not warrant that product descriptions or other content of any Service is accurate, complete, reliable, current, or error-free. If a product offered on the Fishbrain Shop is not as described, your sole remedy is to return it in unused condition per the Seller’s terms.
With respect to items sold by Fishbrain, we cannot confirm the price of an item until you order. Despite our best efforts, a small number of the items on the Fishbrain Shop may be mispriced. If the correct price of an item sold on the Fishbrain Shop is higher than our stated price, we will, at our discretion, either contact you for instructions before shipping or cancel your order and notify you of such cancellation.
YOU AGREE THAT FISHBRAIN SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND INCURRED BY YOU AS THE RESULT OF ANY OF YOUR DEALINGS WITH THIRD PARTY SERVICE PROVIDERS OR ADVERTISERS AVAILABLE THROUGH THE SERVICES.
Fishbrain or third parties may provide links to other internet sites or resources through the Services. Fishbrain does not endorse and is not responsible or liable for any content, information, advertising, products or other materials on or available from such sites or resources. You acknowledge and agree that Fishbrain is not responsible for the availability of such external sites or resources.
You acknowledge and agree that the Services, any necessary software used in connection with the Services, any data based on content on the Services, and any content available or made available on the Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly permitted by applicable law or authorized by Fishbrain or applicable third party service providers or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Services, the software or Content available on the Services (other than Content that you may submit), in whole or in part.
Fishbrain grants you a personal, revocable, non-transferable, non-sublicensable, non-exclusive right and license to access and use the Services; -provided that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Services, except where permitted by law.] You agree not to access the Services by any means other than through the interfaces that are provided by Fishbrain.
The term “FISHBRAIN,” the Fishbrain logo and other Fishbrain logos and product and service names are the exclusive trademarks of, and are owned by, Fishbrain, Inc., and you may not use or display such trademarks in any manner without Fishbrain’s prior written permission. Any third party trademarks or service marks displayed on the Services are the property of their respective owners. Fishbrain reserves all rights not expressly granted hereunder.
Fishbrain honors the requirements set forth in the Digital Millennium Copyright Act. We take reasonable steps to expeditiously remove from our Services any infringing material that we become aware of. And if Fishbrain becomes aware that one of its Users has repeatedly infringed copyrights, we will take reasonable steps within our power to terminate the User’s account.
We make it easy for you to report suspected copyright infringement. If you believe that anything on the Services infringes a copyright that you own or control, please file a notice with our designated agent by emailing firstname.lastname@example.org. If you file a notice with our Copyright Agent, it must comply with the requirements set forth at 17 U.S.C. § 512(c)(3). That means the notice must:
We welcome your comments, feedback, suggestions, and other communications regarding the Services and the information and services we make available through the Services (collectively, “Feedback”). If you provide Feedback, you hereby grant to Fishbrain a worldwide, non-exclusive, transferable, assignable, sub- licensable, perpetual, irrevocable, royalty-free license to copy, distribute, create derivative works of, publicly display and perform and otherwise exploit such Feedback and to use, make, have made, sell, offer for sale, import and export products and services based on such Feedback. For this reason, we ask that you not send Fishbrain any Feedback that you do not wish to license to us as set forth above.
THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND CONTENT AVAILABLE THROUGH THE SERVICES ARE PROVIDED TO YOU “AS IS” AND WITHOUT WARRANTY. FISHBRAIN AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS HEREBY DISCLAIM ALL WARRANTIES WITH REGARD TO SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND CONTENT, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. FISHBRAIN AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT: (a) THE SERVICE WILL MEET YOUR REQUIREMENTS; (b) YOUR CONTENT WILL BE AVAILABLE OR THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; (d) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS; (e) SELLERS AND OTHER THIRD PARTY PROVIDERS WILL COMPLY WITH THEIR RESPECTIVE COMMITMENTS, TERMS OR POLICIES, AND (e) ANY ERRORS IN THE SERVICES WILL BE CORRECTED.
YOU EXPRESSLY AGREE TO RELEASE FISHBRAIN, ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, REPRESENTATIVES, EMPLOYEES, PARTNERS AND LICENSORS (THE “RELEASED PARTIES”) FROM ANY AND ALL LIABILITY IN CONNECTION WITH YOUR FISHING ACTIVITIES AND/OR USE OF THE FISHBRAIN WEBSITES, MOBILE APPLICATIONS, CONTENT, SERVICES OR PRODUCTS, INCLUDING PRODUCTS PURCHASED ON THE SHOP AND PROMISE NOT TO SUE THE RELEASED PARTIES FOR ANY CLAIMS, ACTIONS, INJURIES, DAMAGES, OR LOSSES ASSOCIATED WITH SUCH USE. YOU ALSO AGREE THAT IN NO EVENT SHALL THE RELEASED PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH (a) YOUR USE OR MISUSE OF THE SERVICES, (b) YOUR USE OR MISUSE OF EQUIPMENT OR PROGRAMS CREATED OR LICENSED BY FISHBRAIN WHILE ENGAGED IN FISHING ACTIVITIES, (c) YOUR DEALINGS WITH THIRD-PARTY SERVICE PROVIDERS OR ADVERTISERS AVAILABLE THROUGH THE SERVICES, (d) ANY DELAY OR INABILITY TO USE THE SERVICES EXPERIENCED BY YOU, OR (e) ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES OR CONTENT OBTAINED THROUGH THE SERVICES, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF FISHBRAIN HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW SOME OR ALL OF THE EXCLUSIONS OR LIMITATIONS OF LIABILITY ABOVE, SUCH AS EXCLUSIONS FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN ENTERING INTO THIS RELEASE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE THE BENEFITS OF, SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, (AND ANY SIMILAR LAW OF ANY STATE, COUNTRY OR TERRITORY), WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
FISHBRAIN DOES NOT ENDORSE YOUR CONTENT OR ANY OTHER USER’S CONTENT AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY CONTENT ON THE SERVICES. THE COMPANY’S MAXIMUM AGGREGATE LIABILITY TO YOU PURSUANT TO THESE TERMS SHALL NOT EXCEED THE GREATER OF EITHER (a) FIFTY DOLLARS ($50) OR (b) THE AMOUNT OF FEES PAID BY YOU TO FISHBRAIN IN THE 12-MONTHS PRIOR TO DATE THE CLAIM.
IF YOU ARE A CONSUMER RESIDING IN THE EUROPEAN UNION, YOU HAVE LEGAL REMEDIES IF WE CAUSE YOU LOSS BY OUR BREACH OR NON-PERFORMANCE OF OUR LEGAL OBLIGATIONS, OR BY OUR NEGLIGENCE, AND THESE TERMS DO NOT AFFECT THOSE STATUTORY REMEDIES.
Under California Civil Code Section 1789.3, California Services Users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.
You agree to indemnify and hold Fishbrain and its subsidiaries, affiliates, officers, agents, representatives, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Content you submit, post, transmit or otherwise seek to make available through the Services, your use of the Services, your use of any products obtained on the Shop, your fishing activities which generate the Content you post or seek to post on the Services, your connection to the Services, your violation of the Terms, your violation of any data protection or privacy or other laws, or your violation of any rights of another person or entity. Your rights with respect to Fishbrain are not modified by the foregoing indemnification if the laws of your country of residence, applicable as a result of your use of our Services, do not permit it.
Any action related to the Terms, Content, the Services, and/or your relationship with the Fishbrain, other than with respect to the Fishbrain Shop, shall be governed by, and construed and interpreted in accordance with, the laws of the Sweden without regard to its conflict of laws principles, and the parties irrevocably consent to bring any such action in and consent to the exclusive jurisdiction of the courts of Sweden. Any action related to the Fishbrain Shop will be governed by, and construed and interpreted in accordance with, the laws of the State of Delaware, U.S., and the parties irrevocably consent to dispute resolution per the terms of Section 17 below (Dispute Resolution) for any claims arising out of or relating to the Fishbrain Shop, which arbitration will take place in Wilmington, Delaware, U.S. THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS AND THE UNIFORM COMPUTER INFORMATION TRANSACTION ACT AS CURRENTLY ENACTED BY ANY JURISDICTION OR AS MAY BE CODIFIED OR AMENDED FROM TIME TO TIME BY ANY JURISDICTION DO NOT AND SHALL NOT APPLY IN ANY ACTION RELATED HERETO. and If any party hereto brings any suit or action against another for relief, declaratory or otherwise, arising out of these Terms, the prevailing party will have and recover against the other party, in addition to all court costs and disbursements, such sum as the court may adjudge to be reasonable attorneys’ fees.
Notwithstanding the foregoing, if you are a User based in the European Union, your local laws in your European Union Member State may allow you to take legal action against Fishbrain in your Member State and to invoke certain local laws against Fishbrain.
The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through good-faith negotiations, which shall be a precondition to either party initiating a lawsuit or arbitration. Except for disputes relating to the Fishbrain’s intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents) or if you opt out of this agreement to arbitrate, all claims arising out of or relating to the terms of this Agreement related to the Fishbrain Shop Services and/or your use of the Fishbrain Shop shall be finally settled by binding arbitration administered by JAMS in accordance with its provisions and procedures for consumer-related disputes, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court; provided, however, that the arbitrator will not have authority to award damages, remedies, or awards that conflict with this Agreement. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Fishbrain will pay the additional cost. You and Fishbrain hereby expressly waive trial by jury. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if Fishbrain is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act. This provision does not apply to users who live in the European Union.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and that the right to discovery may be more limited in arbitration than in court.
The parties further agree that any arbitration shall be conducted in their individual capacities only, and not as a class action or other representative action. If any court or arbitrator determines that the class-action waiver set forth in this section is void or unenforceable for any reason, or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception—Litigation of Small Claims Court Claims
Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may also seek relief in a U.S. small claims court for disputes or claims within the scope of that court’s jurisdiction.
Thirty-Day Right to Opt Out
You have the right to opt out and not be bound by the arbitration- and class-action-waiver provisions set forth in this section by sending written notice of your decision to opt out to the following address: email@example.com. The notice must be sent within 30 days of registering to use the Services; otherwise, you shall be bound to arbitrate disputes in accordance with these Terms. If you opt out of these arbitration provisions, Fishbrain also will not be bound by them. In addition, if you elect to opt out of these arbitration provisions, Fishbrain may terminate your use of the Services.
Time Limitation on Claims
Except to the extent prohibited by applicable law, You agree that any claim you may have arising out of or related to your relationship with Fishbrain and these Terms must be filed within one year after such claim arose; otherwise, your claim is permanently barred. This provision does not apply if you are based in the European Union in which case time limitations shall be determined in accordance with governing law for EU users mentioned below.
You agree that no joint venture, partnership, joint controllership, employment or agency relationship exists between you and Fishbrain as a result of the Terms or your use of the Services. The Terms constitute the entire agreement between you and Fishbrain with respect to your use of the Services. The failure of Fishbrain to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect. You may not assign, delegate or otherwise transfer your account or your obligations under these Terms without the prior written consent of Fishbrain.
ishbrain has the right, in its sole discretion, to transfer or assign all or any part of its rights under these Terms and will have the right to delegate or use third party contractors to fulfill its duties and obligations under these Terms and in connection with the Services. Fishbrain’s notice to you via email, regular mail or notices, posts, or links on the Services shall constitute acceptable notice to you under the Terms. A printed version of the Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Section titles and headings in the Terms are for convenience only and have no legal or contractual effect. Any rights not expressly granted herein are reserved.
Fishbrain and its third party service providers may make improvements and/or changes in the Services, products, Services, mobile applications, features, programs, and prices described at any time and for any reason in its sole discretion. The mobile application may download and install upgrades, updates and additional features in order to improve, enhance, and further develop the Services. Fishbrain reserves the right at any time to modify or discontinue, temporarily or permanently, the Services or any portion thereof with or without notice. You agree that Fishbrain shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.
SUPPORT AND QUESTIONS. We will respond to any questions regarding the Services and these Terms via firstname.lastname@example.org. We generally respond to support requests within 10-14 days after the request is placed.