LAST UPDATE: March 27, 2020
Synapse Inc, is a Delaware corporation (“Synapse” or “Company”) that has created a state of the art notification scheduling platform (“Platform”). This Platform is known as Daywise (“Daywise”). As a user (“User,” “you,” or “your”) you can make use of the Platform by downloading Daywise on your Mobile Devices as a mobile application (“App”).
Synapse also owns and controls the website i.e., www.getdaywise.com (“Website”). The services provided by Synapse via the Daywise App, Platform and the Website are hereinafter collectively referred to as “Services.”
Please review these User Terms carefully to understand all your rights and responsibilities. If you have any questions regarding any of the terms contained in the User Terms, please write to us with your concerns and questions at firstname.lastname@example.org. Please do not use or download our App and Services if you do not agree with this Agreement.
THIS AGREEMENT CONTAINS A BINDING AND MANDATORY ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS AND LIMITS REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES.
1. Accepting the User Terms
You accept this Agreement when you access and/or use our App, Platform, Website and/or Services. You agree and acknowledge that:
a) you have read and understood the agreement;
b) you represent that you are at least 18 years old;
c) you can form a binding contract;
e) if you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these user terms and conditions, in which case the terms "you" or "your" shall refer to such entity and its affiliates.
Our App, Website, Platform and our Services, are only for use in the United States of America (the “Registered Territory” or “US”) and select parts of the world.
Currently our App is not available for use and download in the European Union and in Switzerland. Also, for the time being, we are not providing Services in the European Union and in Switzerland. Please do not register for our Services if you live anywhere in the European Union or in Switzerland. If we discover any unauthorized registration on our App, Website or Platform, we reserve the right to terminate the registration.
We will inform you when we begin offering our Services in other territories via reasonable means including updating these User Terms.
4. Daywise Functions & Benefits
Daywise is a state of the art notification scheduling Platform developed and owned by Synapse. Daywise helps you deal with distractions resulting from multiple notifications received on your mobile devices. The Daywise App enables you to choose and customize important notifications over other non-important notifications that may be received on your Mobile Devices from time to time.
When you download our App, Synapse gets access to all notifications received from various other apps on your Mobile Device. Additionally, Synapse also gets access to the content of your notifications including but not limited to your text messages, WhatsApp messages, news alerts, traffic alerts, etc. We use this information and your preference to create a notification schedule. Please note that all contents of notifications stay on your phone. We don’t store them on our servers. The App allows Users to choose their important notifications and while Users receive these notifications instantly, all other notifications that user marks as “not priority/to be reviewed in batches” are collected and delivered to you together at a time of your preference. The App also allows users to create rules for different people who communicate with them, by letting the User choose which people can interrupt them immediately and which people notifications can wait.
Essentially, the App holds your notifications and sends them to you in batches. Users can customize this experience on the App by feeding in their busy hours and scheduling different times in a day when the User will be willing to receive notifications.
5. Services License
When you access the Services via our App, we grant you a limited, non-exclusive, revocable, non-sublicensable, and nontransferable right to: (a) download, install, and use the App for your use in accordance with these User Terms on a single mobile device owned or otherwise controlled by you (“Mobile Device”) strictly in accordance with this Agreement, and (b) to access, stream, download and use on such Mobile Device content and Services made available in or otherwise accessible through the App, strictly in accordance with this Agreement.
Subject to your compliance with the User Terms, we also grant you a limited, personal, non-exclusive, revocable, and non-sublicensable access to our Website, Platform and Services therein.
When using our App and accessing our Platform and Services, you need to make sure that your internet connection is adequate. You would be solely responsible for your internet connection including and not limited to the applicable charges, rates, tariffs and other fees that might apply.
You agree that Synapse is not liable for any damages or injury resulting from your use of our App, Website, application, or the Services. Synapse provides no warranty of fitness for a particular purpose or warranty of merchantability. There is no warranty which will extend beyond the description on the face hereof. Any damage alleged for a loss or injury is limited to the fee, if any, paid to Synapse for the ability to access the App, Website and/or the Services.
6. Access & Service Restrictions
Only a user who is at least 18 years old can download our App and use our Services. You certify that you are at least 18 years of age. You agree to defend, indemnify and hold us harmless for any and all damages, fees, penalties, lawsuits, causes of action, expenses, costs, liabilities, losses, expenses (including but not limited to reasonable attorneys’ fees) or comparable charges (collectively “Damages”) resulting from a violation of this age requirement.
You agree that the Services, including but not limited to the App, the Platform, Services and Website graphics, trademarks, and editorial content, contain proprietary content, information and material, are owned by Synapse and/or its licensors, including our customers, brands and agencies, and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary content, information or materials other than for your permitted use of the Services or in any manner that is inconsistent with these User Terms.
You agree that you will not modify, rent, lease, loan, sell, distribute, or create derivative works based on the App or the Services, in any manner, and you shall not exploit the App or the Services in any unauthorized way whatsoever, including but not limited to, using the App and/or the Services to transmit any computer viruses, worms, Trojan horses or other malware, or by trespass or burdening network capacity. You further agree not to use the App or the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Synapse is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using the App or the Services. You agree to defend, indemnify and hold us harmless from any and all Damages resulting from a violation of this Section 6.
7. Reservation of Rights
You acknowledge and agree that access to the App and the Website and use of the Services are provided under a license, and not sold, to you. Except to the extent necessary to access and use the App, Website and the Services, nothing in this Agreement grants any title or ownership interest in or to any copyrights, patents, trademarks, trade secrets or other proprietary rights in or relating to the App, Website and the Services whether expressly, by implication, estoppel or otherwise. Synapse and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the App, Website and the Services, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
8. User Content & Notifications
User Content. All content that is either posted by you on the App or the Website or that is obtained by Synapse from you for the better provision of Services shall be collectively referred to as “User Content.” You hereby represent and warrant to Synapse that you own and control all User Content. You agree to defend, indemnify and hold Synapse harmless for any and all Damages resulting from a violation of your representation and warranty set forth in this Section 6.
Additionally, when you download and use our Services, we are also able to read the content of all your notifications including personally identifiable information. Such information includes but is not limited to contact names, third-party app names, text messages, personal and professional alerts, email notifications, calendar invites, weather and traffic. You hereby expressly authorize us to read and access all the contents of your notifications. We also collect information about your Mobile device usage including but not limited to screen time, phone unlocks, app usage times, and information about the Mobile device itself when you access and use our Services.
The data regarding the notifications, along with the contents of the notifications is an essential component that is required to satisfy the core functionality of our App. We use the notifications and the content therein to assess and create general rules regarding the importance and relevance of each notification. Thereafter, we use this assessment to provide users with our Services. Therefore, receiving all information about and from notifications is an absolute necessity for us. Please note that all contents of notifications stay on your phone. We don’t store them on our servers.
You hereby expressly authorize us to receive and access the contents of all the notifications received on your Mobile Device.
Metadata. Metadata means a set of data that provides information about other data, metadata may be either structural, administrative, or descriptive. Some examples of metadata include statistics regarding the number of notifications received on a Mobile Device, the approximate time when most notifications are received. Synapse reserves the right to store metadata and also use it for promotional purposes.
Disclaimer Regarding Notifications. Users expressly acknowledge and agree that Synapse will not be held liable for any losses arising from misplaced notifications. The App allows Users to customize their experience with respect to receiving notifications, therefore, Synapse shall not be held liable for any missed notifications. Please take some time to accustom yourself with our App and our Services and ensure that all your customizations suit your requirements.
9. Representation & Warranties
You represent and warrant that: (a) you have the full power and authority to enter into this Agreement, and neither this Agreement nor your activity hereunder conflicts with any obligation on your part; (b) all information submitted by you and all statements made by you will comply with all applicable laws and is accurate, and (c) to the extent that you upload any content on the App or the Website, you represent that you own all rights in, or have authorization or are otherwise legally permitted to upload, such content and that such content does not violate any terms of service applicable to any other Social Media Provider, or this Agreement. You agree to defend, indemnify and hold Synapse harmless for any and all Damages resulting from a violation of your representation and warranty set forth in this Section 9.
We reserve the right, at our sole discretion, to change or modify these User Terms at any time. In the event, we modify these User Terms, such modifications shall be binding on you only upon your acceptance of the modified terms. We will inform you about the modifications via email or comparable means within 15 days of such modification. We will also post the modified version on this page. Your continued use of the App and the Services shall constitute your consent to such changes.
Company may change, modify, suspend, or discontinue any aspect of the App and the Services at any time without notice or liability.
11. Synapse Communication
By downloading our App, accessing our Platform and Website and using our Services, you agree to receive communications from us, including via email, SMS messages and via push notifications. If you do not wish to receive communications from us, please send an email to email@example.com. Please note that sending us an email requiring us to stop communications at our end may affect your use and access to the Synapse App, the Website and the Services.
12. Acceptable Use Policy
A User can use the App, Platform, Website and the Services only for lawful purposes and in accordance with these User Terms. You warrant, represent and agree that you will NOT to use the App, Website and/or the Services:
In a way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
To send, knowingly receive, upload, download, use or re-use any material which does not comply with these User Terms.
To impersonate or attempt to impersonate Synapse, a Synapse employee, another user or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing).
To engage in any other conduct that restricts or inhibits anyone’s use of the App, Website and the Services, or which, as determined by us, may harm Synapse or our customers or expose them to liability.
In any manner that could disable, overburden, damage, or impair the App or the Website or interfere with any other party’s use of the App, Website and the Services.
To introduce any viruses, Trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
Attempt to gain unauthorized access to, interfere with, damage or disrupt the App, Website and/or the Services.
To introduce any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable.
Decompile, reverse engineer, or otherwise attempt to obtain the source code or underlying ideas or information of or relating to the App, Website and/or the Services.
Infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person.
Promote any illegal activity, or advocate, promote or assist any unlawful act.
Impersonate any person or misrepresent your identity or affiliation within our registration process.
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD SYNAPSE, ITS RELATED COMPANIES AND THEIR EMPLOYEES, AGENTS, OR CONTRACTORS HARMLESS FROM ANY AND ALL DAMAGES RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS OF VIOLATIONS OF THIS SECTION AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF OR RESULTING FROM SUCH INVESTIGATIONS BY ANY OF THE FOREGOING PARTIES OR LAW ENFORCEMENT AUTHORITIES.
13. Payment Terms
You may purchase a Paid Subscription from the application store by paying a subscription fee in advance on a monthly basis or some other recurring interval disclosed to you prior to your purchase. Synapse may change the price for the Paid Subscriptions, including recurring subscription fees, from time to time and will communicate any price changes to you in advance and, if applicable, how to accept those changes. Price changes will take effect at the start of the next subscription period following the date of the price change. Subject to applicable law, you accept the new price by continuing to access our Services after the price change takes effect. If you do not agree with a price change, you have the right to reject the change by unsubscribing from the Paid Subscription prior to the price change going into effect.
If you register for a Paid Subscription, it may be refundable for a short time period in accordance with the refund policy of the application store from which the purchase was made. Once this store-defined time period elapses, all purchases are 100% non-refundable.
The Paid Subscription will automatically renew at the end of the applicable subscription period, unless you cancel your Paid Subscription before the end of the then-current subscription period through the application store which was used to buy the subscription. The cancellation will take effect the day after the last day of the current subscription period. The App may not be usable once the subscription has ended.
Accessing and using the App could be free of cost for a limited period of time. However, Synapse reserves the right to charge a subscription fee in the future.
14. Confidentiality & Feedback
In the event that any information is disclosed to you through your access to the App, Platform, Website or Services related in any way to Synapse and Synapse’s business and its customers which we deem to be confidential and proprietary, you agree to promptly notify Synapse about such disclosure and hold such information in the strictest of confidence.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the App, Platform, Website and/or the Services ("Feedback"), provided by you to us are non-confidential and we will be entitled to the unrestricted use and dissemination of these Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You shall indemnify, defend and hold Synapse and our officers, employees, managers, directors, customers and agents (the “Synapse Indemnified Parties”) harmless from and against any and all Damages costs, liabilities, losses and expenses (including but not limited to reasonable attorneys’ fees) resulting from any claim, suit, action, demand or proceeding brought by any third party against Synapse Indemnified Parties arising from any of the following: (i) a breach of this Agreement; (ii) the negligence, gross negligence or willful misconduct of you or your employees, agents or contractors; (iii) incorrect information provided by you in your account or elsewhere ; or (iv) a failure by you or your employees, agents, contractors or invitees to comply with applicable laws and regulations.
16. Disclaimer of Warranties
Your access to and use of the App, Platform, Website and Services or any content are at your own risk. You understand and agree that the App, Website and the Services are provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, SYNAPSE DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. Synapse makes no warranty or representation and disclaim all responsibility and liability for: (i) the completeness, accuracy, availability, timeliness, security or reliability of the App, Website and/or the Services or any content thereof; (ii) any harm to your computer system, loss of data, or other harm that results from your access to or use of the App, Website and/or the Services or any content; (iii) the deletion of, or the failure to store or to transmit, any content and other communications maintained by the App, Website and/or the Services; and (iv) whether the App, Website or the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. No advice or information, whether oral or written, obtained from Synapse or through the App, Website or Services, will create any warranty or representation not expressly made herein.
17. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SYNAPSE SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES, THE APP AND THE WEBSITE; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE APP, WEBSITE OR THE SERVICES; OR (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF SYNAPSE EXCEED THE GREATER OF ONE HUNDRED U.S. DOLLARS (U.S. $100.00) OR THE AMOUNT YOU PAID SYNAPSE, IF ANY, IN THE PAST SIX MONTHS FOR THE SERVICES GIVING RISE TO THE CLAIM. THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT SYNAPSE HAS BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
YOU AND (IF APPLICABLE) YOUR PERSONAL REPRESENTATIVE, KNOWINGLY AND FREELY ASSUME ALL RISK WHEN ACCESSING THE APP, THE SERVICES AND THE WEBSITE. YOU, ON BEHALF OF YOURSELF, AND (IF APPLICABLE) YOUR PERSONAL REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND AND INDEMNIFY SYNAPSE AND ITS OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AGENTS, SUCCESSORS AND ASSIGNS, FROM AND AGAINST ANY CLAIMS, DISPUTES, DEMANDS, LIABILITIES, DAMAGES, LOSSES, AND COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL AND ACCOUNTING FEES ARISING OUT OF OR IN ANY WAY CONNECTED WITH (I) YOUR ACCESS TO OR USE OF THE APP, THE WEBSITE, AND/OR THE SERVICES (II) YOUR USE OF THE APP, WEBSITE AND/OR THE SERVICES, INCLUDING, WITHOUT LIMITATION, FOR BODILY INJURY, WRONGFUL DEATH, EMOTIONAL DISTRESS, OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES, WHICH MAY RESULT FROM THE USE OF THE WEBSITE OR THE SERVICES, (III) VIOLATION OF THESE USER TERMS, INCLUDING, WITHOUT LIMITATION, YOUR BREACH OF ANY OF THE REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN AND FOR BODILY INJURY, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF SERVICES OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES, WHICH MAY RESULT FROM YOUR USE OF THE SERVICES, (IV) CLAIMS, OR ANY DECISION BY A COURT, ARBITRATOR, OR GOVERNMENT AGENCY, THAT SYNAPSE IS OBLIGATED TO PAY ANY WITHHOLDING TAXES, SOCIAL SECURITY, UNEMPLOYMENT OR DISABILITY INSURANCE OR SIMILAR ITEMS IN CONNECTION WITH ANY PAYMENT RECEIVED BY YOU UNDER THE TERMS, (V) YOUR VIOLATION OF ANY THIRD-PARTY RIGHT, INCLUDING WITHOUT LIMITATION ANY RIGHT OF PRIVACY OR INTELLECTUAL PROPERTY RIGHTS, (VII) YOUR VIOLATION OF ANY APPLICABLE LAW, RULE OR REGULATION, (VIII) YOUR WILLFUL MISCONDUCT, OR (IX) ANY OTHER PARTY’S ACCESS AND USE OF THE SERVICE WITH YOUR UNIQUE USERNAME, PASSWORD OR OTHER APPROPRIATE SECURITY CODE.
User can terminate this binding legal agreement by uninstalling the App and discontinuing the use of our Services.
Sections that, by their content and context are intended to survive, shall survive any termination or expiration of this Agreement.
19. Third-Party Interaction Disclaimer
You acknowledge that Synapse does not and cannot control the flow of data to or from the App, Platform Website and/or the Services or within any portion of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or omissions of such third-parties can impair or disrupt your connections to the Internet (or portions thereof). Although Synapse will use commercially reasonable efforts to take actions it deems appropriate to remedy and avoid such events with respect to your use of the App, Website and the Services, Synapse cannot guarantee that such events will not occur. Accordingly, Synapse disclaims any and all liability resulting from, or related to, such events.
20. Copyright Infringement & DMCA Notice
If you believe that any content on our App or Website violates your copyright, and you wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c) (“DMCA Takedown Notice”) must be provided to our designated Copyright Agent. It is our policy to terminate the accounts of repeat infringers.
Your physical or electronic signature;
Identification of the copyrighted work(s) that you claim to have been infringed;
Identification of the material on our services that you claim is infringing and that you request us to remove;
Sufficient information to permit us to locate such material;
Your address, telephone number, and e-mail address;
A statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
The Synapse Copyright Agent to receive the DMCA Takedown Notices is Mr. Ranjan Jagannathan, Synapse Inc Attn: DMCA Notice, 29651, Devonshire Oval, Westlake, Ohio 44145. [AK1] You acknowledge that for us to be authorized to take down any content, your DMCA takedown notice must comply with all the requirements of this Section. Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney's fees incurred by us in connection with the written notification and allegation of copyright infringement.
21. No Assignment
This Agreement is only for your benefit. You shall have no right to assign this Agreement or any benefits or obligation hereunder to any other party or legal entity. Any attempted assignment shall be void.
22. Relationship Between User & Synapse
The parties hereto are independent contractors, and nothing contained herein shall be interpreted as creating any relationship other than that of independent contracting parties. The parties shall not be construed as being partners, joint ventures, shareholders, employer/employee, agent/servant. The User has no power or authority to bind Synapse to any obligation, agreement, debt or liability. The User shall not hold itself out as an agent or representative of Synapse.
23. Anti-Bribery & Export Compliance
You agree not to promote, approach or use, distribute, transfer, provide, sub-license, share with, or otherwise offer the App and/or the Services in violation of any Laws or this Agreement, including, without limitation, the US Foreign Corrupt Practices Act, the UK Bribery Act and similar anti-corruption statutes in all jurisdictions. Without limiting the foregoing, you will not knowingly directly or indirectly export, re-export, transfer, make available or release (collectively, “Export”) the App and the Services to any destination, person, entity or end use prohibited or restricted under US law without prior US government authorization to the extent required by regulation, including without limitation, any parties listed on any of the denied parties lists or specially designated nationals lists maintained under the EAR or the Security, and the Foreign Asset Control Regulations (31 CFR 500 et seq.) administered by the US Department of Treasury, Office of Foreign Assets Control without appropriate US government authorization to the extent required by regulation.
24. Governing Law
This Agreement shall be governed by the law of the State of Ohio, without respect to its conflicts of laws principles. Each of the parties to this Agreement consents to the exclusive jurisdiction and venue of the state and federal courts located in Ohio, for any actions not subject to Dispute Resolution and Arbitration provisions as set forth in Section 25.
25. Dispute Resolution & Arbitration
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH SYNAPSE AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
a. Binding Arbitration
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Synapse agree (a) to waive your and Synapse’s respective rights to have any and all Disputes arising from or related to this Agreement, use of our App, Website and the Services, resolved in a court, and (b) to waive your and Synapse’s respective rights to a jury trial. Instead, you and Synapse agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
b. No Class Arbitrations, Class Actions or Representative Actions
You and Synapse agree that any Dispute arising out of or related to these User Terms or the App, Website, User Content or Services is personal to you and Synapse and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Synapse agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Synapse agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
c. Federal Arbitration Act
You and Synapse agree that these User Terms affect interstate commerce and that the enforceability of this Section 25 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
d. Notice; Informal Dispute Resolution
You and Synapse agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Synapse shall be sent by certified mail or courier to Synapse Inc, Attn: Legal, 29651, Devonshire Oval, Westlake, Ohio 44145. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Synapse account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with this Agreement and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and Synapse cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Synapse may, as appropriate and in accordance with this Section 25, commence an arbitration proceeding.
EXCEPT FOR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND SYNAPSE AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR SYNAPSE WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND SYNAPSE WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You and Synapse agree that (a) any arbitration will occur in San Francisco, California, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section, and (c) that the state or federal courts of the State of Illinois, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
f. Authority of Arbitrator
As limited by the FAA, these User Terms and the applicable AAA rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these User Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. Notwithstanding anything to the contrary herein or the applicable AAA rules. discovery in the arbitration shall be limited to one set of interrogatories, one set of requests for admissions, and one set of requests for production of documents.
The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. We will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
g. Rules of AAA
The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879. By agreeing to be bound by these User Terms, you either (a) acknowledge and agree that you have read and understand the rules of AAA, or (b) waive your opportunity to read the rules of AAA and any claim that the rules of AAA are unfair or should not apply for any reason.
If any term, clause or provision of this Section 25 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 25 will remain valid and enforceable. Further, the waivers set forth in Section 25 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
i. Opt-Out Right
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 25 by writing to: SYNAPSE INC, Re: OPT-OUT, SYNAPSE INC. 29651, DEVONSHIRE OVAL, WESTLAKE, OHIO 44145. IN ORDER TO BE EFFECTIVE, THE OPT OUT NOTICE MUST INCLUDE YOUR FULL NAME AND CLEARLY indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 25.