(Last Updated Date: 25-Oct-2024)
Welcome and thank you for your interest in Unusual Circumstances, Inc. (“Unusual”, “we”, “us” or “our”)!
Scope. This Terms of Use Agreement (“Terms of Use”, and together with any applicable Supplemental Terms (as defined in Section 1.4 (Supplemental Terms)), the “Agreement”) describes the terms and conditions that apply to your use of (1) the websites located at https://joinsitch.com, https://unusual.inc and their related subdomains (collectively, the “Website”), (2) Unusual’s mobile application, which we offer subject to these Terms of Use (the “App”), and (3) the services, content, and other resources available on or enabled via our Website or the App, including Unusual’s chatbots powered by generative AI (each and collectively, “Chatbot” and, collectively, with the App and Website and the content and services enabled thereby, the “Service”).
WHAT THE SERVICE IS NOT. PLEASE NOTE THAT OUR SERVICE, INCLUDING THE CHATBOT, IS FOR ENTERTAINMENT PURPOSES ONLY. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THE APP OR ELSEWHERE, THE CHATBOT IS NOT A LICENSED COACH OR OTHER LICENSED SERVICE PROVIDER, AND THE SERVICE DOES NOT PROVIDE, NOR PURPORT TO PROVIDE, ANY psychological or psychiatric therapy, OR ANY medical or mental health services OR ADVICE, AND DOES NOT INCLUDE ANY SERVICES REQUIRING PROFESSIONAL LICENSURE (E.G., PSYCHOTHERAPY, PSYCHOLOGY, OR PSYCHIATRY), NOR DO WE REPRESENT THAT ANY SERVICE IS OPERATING UNDER ANY LICENSING AUTHORITY. DO NOT USE OUR SERVICE FOR SUCH SERVICES OR EMERGENCIES. IF YOU ARE EXPERIENCING A MEDICAL OR BEHAVIORAL HEALTH EMERGENCY, YOU SHOULD IMMEDIATELY CALL “911” OR GO TO THE NEAREST OPEN CLINIC OR EMERGENCY ROOM.
APPLICATION OF THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS THE USE OF THE SERVICE AND APPLIES TO ALL USERS VISITING OR ACCESSING THE SERVICE. BY ACCESSING OR USING THE SERVICE IN ANY WAY, ACCEPTING THIS AGREEMENT BY CLICKING ON ANY “I ACCEPT” BUTTON, COMPLETING THE ACCOUNT REGISTRATION PROCESS, BROWSING THE WEBSITE OR DOWNLOADING THE APP, YOU REPRESENT THAT: (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH UNUSUAL, (3) YOU ARE NOT BARRED FROM USING THE SERVICE UNDER THE LAWS OF THE UNITED STATES, YOUR PLACE OF RESIDENCE OR ANY OTHER APPLICABLE JURISDICTION; AND (4) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR, IF YOU ARE ACCESSING OR USING THE SERVICE ON BEHALF OF AN ENTITY, ON BEHALF OF THE ENTITY IDENTIFIED IN THE ACCOUNT REGISTRATION PROCESS. IF THE INDIVIDUAL ENTERING INTO THIS AGREEMENT IS DOING SO ON BEHALF OF AN ENTITY, ALL REFERENCES TO “YOU” OR “YOUR” IN THIS AGREEMENT WILL ALSO BE DEEMED TO REFER TO SUCH ENTITY. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE SERVICE.
ARBITRATION TERMS. SECTION 15 (ARBITRATION AGREEMENT) CONTAINS PROVISIONS THAT GOVERN HOW TO RESOLVE DISPUTES BETWEEN YOU AND UNUSUAL. AMONG OTHER THINGS, SECTION 15 (ARBITRATION AGREEMENT) INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 15 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 15 (ARBITRATION AGREEMENT) CAREFULLY. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT (AS DEFINED IN SECTION 15) WITHIN THIRTY (30) DAYS IN ACCORDANCE WITH SECTION 15.10 (30-DAY RIGHT TO OPT OUT): (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
SUBSCRIPTION PURCHASE AND AUTORENEWAL. IF YOU PURCHASE A SUBSCRIPTION TO THE SERVICE FOR A TERM (THE “INITIAL TERM”), THEN YOUR SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL SUBSCRIPTION TERM AT UNUSUAL’S THEN-CURRENT FEE FOR SUCH SERVICE UNLESS YOU OPT OUT OF THE AUTOMATIC RENEWAL IN ACCORDANCE WITH SECTION 8.3(a) (AUTOMATIC RENEWAL) BELOW. Residents of certain states may have additional rights to cancel subscriptions, as set forth in Section 8.3(c).
TEXT MESSAGES. PLEASE NOTE THAT IF YOU OPT-IN TO OBTAIN TEXT MESSAGES FROM UNUSUAL OR OTHERWISE INTERACT WITH THE SERVICE VIA TEXT MESSAGE, SECTION 1.6 (TEXT MESSAGE SERVICES) OF THIS AGREEMENT BELOW CONTAINS TERMS RELATED TO OUR TEXT MESSAGE SERVICES.
UPDATES. The Agreement IS subject to change by Unusual in its sole discretion at any time AS SET FORTH IN SECTION 16.6 (Agreement updates).
USE OF THE SERVICE. The Service and the information and content available on the Service are protected by applicable intellectual property (including copyright) laws. Unless subject to a separate license agreement between you and Unusual, your right to access and use the Service, in whole or in part, is subject to this Agreement.
1.1 Matching Service. The Services include Unusual’s matching service, which uses our proprietary technology (including the Chatbot) and human touch to understand what matters to you and identify potentially compatible users of the Services (each, a “Connection”) and enable you to connect with those Connections through our Services.
Availability. Our matching service is only available in certain geographic locations within the United States of America, as listed on the Service. If you do not reside in any of these geographic locations, you may not use the matching service. The list of geographies in which the matching service may be access may be updated from time to time on the Service.
Profile Information. The Service contains tools that enable you to control how certain categories of profile information and other Content about you is shared with other users, while other Content (e.g., any profile picture you make available), may be automatically shared with Connections or other users. We encourage you to review your settings on the Services to familiarize yourself with the settings for such information and to customize those settings as appropriate.
Honesty. Our matching services rely on users’ honesty and transparency, you agree that all Content provided by you in connection with the matching services will be accurate, complete, and up-to-date. Please contact us if you believe that User Content (defined below) provided by any Connection or any other user is inaccurate or incomplete.
IRL Interactions. Please use caution in interacting with other users, whether on- or offline, just as you would in any real-world interaction. Unless otherwise expressly set forth on the Services, Unusual does not do any background checks or checks of criminal histories, or otherwise verify the identity of any users.
No Guarantees. Unfortunately we cannot guarantee that you will be satisfied with any Connection or that any Connection will meet your needs. Notwithstanding anything else set forth herein, Unusual makes no representations about the suitability, reliability, timeliness or accuracy of any Connection or any other user, or any information provided by such user, whether in public, private or offline interactions. We are not responsible for the actions, words, or conduct, whether online, offline or otherwise, by any user of the Services, or for any unauthorized access to the accounts of our users. When interacting with other users you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting offline with other persons whom you don’t know. NEITHER UNUSUAL NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES. UNUSUAL AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR INTERACTIONS WITH OTHER USERS OF THE SERVICES ON OR OFF THE SERVICE.
1.2 Chatbot. Our Chatbot leverages certain generative AI tools (including AI Services made available by third parties, as defined below, and collectively the “AI Tools”) to collect, analyze, and respond to user prompts and requests in connection with the matching service and to provide automated advice with respect to dating and social interactions. By using the Chatbot, you hereby consent and authorize Unusual to share any Content or other information you provide to the Chatbot with the AI Tools in order to complete your request.
YOU, AND NOT UNUSUAL, SHALL BE SOLELY RESPONSIBLE FOR YOUR USE OF THE CHATBOT. YOU ACKNOWLEDGE AND AGREE THAT ANY CONDUCT YOU ENGAGE IN AS A RESULT OF THE INFORMATION PROVIDED BY THE CHATBOT OR ANY OTHER AI TOOLS MADE AVAILABLE THROUGH UNUSUAL OR SUCH THIRD-PARTY SERVICES IS AT YOUR OWN RISK.
BECAUSE CHATBOTS UTILIZE ARTIFICIAL INTELLIGENCE TO COMMUNICATE WITH YOU, OUR CHATBOT(S) MAY PROVIDE INFORMATION THAT IS AN INACCURATE OR INAPPROPRIATE RESPONSE TO YOUR REQUESTS IN ITS INTERACTIONS WITH YOU. YOU AGREE THAT UNUSUAL WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR THE CHATBOT (OR ANY OTHER AI TOOLS MADE AVAILABLE BY UNUSUAL OR THIRD-PARTY SERVICES) PROVIDING INACCURATE OR INAPPROPRIATE INFORMATION TO YOU.
THE CHATBOT IS NOT, AND IS NOT INTENDED TO BE, A SUBSTITUTE FOR ANY PROFESSIONAL SERVICES, INCLUDING ANY PROFESSIONAL MEDICAL OR BEHAVIORAL HEALTH SERVICES. WHILE THE CHATBOT MAY BE COLLOQUIALLY REFERRED TO AS A COACH, The Chatbot is not AND IS NOT INTENDED TO BE a LICENSED coach, advisor, doctor, therapist, or any other professional, whether or not licensed, and any Output (as defined below) provided by the Chatbot is not considered to be diagnostic or medical information of any sort, and is solely intended for your entertainment purposes.
1.3. App License. Subject to your compliance with this Agreement, Unusual grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the App on a single Device (as defined below) that you own or control and to run such copy of the App solely for your own personal use.
1.4. Supplemental Terms. Your use of, and participation in, certain features and functionality of the Service may be subject to additional terms (“Supplemental Terms”). Such Supplemental Terms will either be set forth in the applicable supplemental Service or will be presented to you for your acceptance when you sign up to use the supplemental Service. If these Terms of Use are inconsistent with the Supplemental Terms, then the Supplemental Terms control with respect to such supplemental Service.
1.5. Updates. You understand that the Service is evolving. As a result, Unusual may require you to install updates to the App on the devices through which you access or use the Service (“Device”). You acknowledge and agree that Unusual may update the Service with or without notifying you. You may need to update third-party software from time to time in order to continue to use the Service. Any future release, update or other addition to the Service shall be subject to this Agreement.
1.6. Text Message Services. Unusual may offer one or more mobile message programs (collectively, the “Message Service”) that allows users to receive SMS/MMS mobile messages by opting-in such as through online or application-based enrollment forms. Regardless of the opt-in method you use to enroll, you agree that your use of the Message Service is governed by this Agreement. We do not charge for the Message Service, but you are responsible for all charges and fees associated with mobile messaging imposed by your wireless carrier and you acknowledge that your carrier may charge you or deduct usage credit from your account when you text us or we send messages to you. Message and data rates may apply. By enrolling a telephone number in the Message Service, you authorize us to send recurring SMS and MMS mobile messages to the number you specify, and you represent that you are authorized to receive mobile messages at such number. The messages sent through the Message Service may include advice messages from the Chatbot, marketing or advertising messages, and operational messages concerning your use of the Service. You agree that these messages may be transmitted using an automatic telephone dialing system (“ATDS”), other automated systems for the selection or dialing of telephone numbers, or different technology. Your consent to receive mobile messages via an ATDS or other automated system for the selection or dialing of numbers is not required (directly or indirectly) as a condition of purchasing any property, goods or services. While you consent to receive messages sent using an ATDS, the foregoing shall not be interpreted to suggest or imply that any or all of our messages are sent using such a system. Message frequency varies. If you do not wish to continue participating in a Message Service program we offer, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message you receive from that program to opt out. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that that we and our service providers will have no liability for failing to honor such requests. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those keyword commands set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out. To the extent you subscribe to more than one Message Service program that we operate, you must unsubscribe from each program separately. For Message Service support or assistance, text the HELP keyword in response to any message you receive through the Message Service or email us at [email protected]. Please note that the use of this email address is not an acceptable method of opting out of Message Service. Opt outs must be submitted in accordance with the procedures set forth above. We may change any short code or telephone number we use to operate the Message Service at any time with notice to you. You acknowledge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we are not responsible for honoring requests made in such messages. The Message Service may not be available in all areas or supported by all carriers or all devices. Check with your carrier for details. Delivery of mobile messages is subject to effective transmission from your wireless carrier/network operator and is outside of our control. We and the wireless carriers supported by the Message Service are not liable for any failed, delayed or undelivered messages. If you decide to change your mobile phone number, you agree to first opt out of each Message Service program in which your number is enrolled. For clarity, you acknowledge and agree that any disputes between you and us related to the Message Service will be governed by Section 15 (Arbitration Agreement).
REGISTRATION.
2.1. Registering Your Account. In order to access certain features of the Service, you may be required to register an account on the Service (“Account”), have a valid account on a social networking or other third-party service (“Linked App”) through which you can connect to the Service, as permitted by the Service (each such account, a “Linked Account”), or have an account with the app store from which you downloaded the App.
2.2. Access Through a Linked App. The Service may allow you to link your Account with a Linked Account by allowing Unusual to access your Linked Account, as is permitted under the applicable terms and conditions that govern your use of each Linked Account. You represent that you are entitled to disclose your Linked Account login information to Unusual and/or grant Unusual access to your Linked Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Linked Account and without obligating Unusual to pay any fees or making Unusual subject to any usage limitations imposed by such third-party service providers. By granting Unusual access to any Linked Account, you understand that Unusual may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials that you have provided to and stored in your Linked Account (“Linked App Content”) so that it is available on and through the Service via your Account. Unless otherwise specified in this Agreement, all Linked App Content is considered to be your Input (as defined in Section 3.1 (Types of Content)) for all purposes of this Agreement. Depending on the Linked Accounts you choose and subject to the privacy settings that you have set in such Linked Accounts, personally identifiable information that you post to your Linked Accounts may be available on and through your Account on the Service. If a Linked Account or associated service becomes unavailable, or Unusual’s access to such Linked Account is terminated by the third-party service provider, then Linked App Content will no longer be available on and through the Service. YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND UNUSUAL DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Unusual makes no effort to review any Linked App Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Unusual is not responsible for any Linked App Content.
2.3. Registration Data. In registering an account on the Service, you shall (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.
2.4. Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you 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 will forever be owned by and inure to the benefit of Unusual. Furthermore, you are responsible for all activities that occur under your Account. You will accept full responsibility for any unauthorized use of the Service, including your credit card or other payment method, by minors. You may not share your Account or password with anyone, and you agree to notify Unusual immediately of any unauthorized use of your password or any other breach of security. If you provide any information that is untrue, inaccurate, incomplete or not current, or Unusual has reasonable grounds to suspect that any information you provide is untrue, inaccurate, incomplete or not current, Unusual has the right to suspend or terminate your Account and refuse any and all current or future use of the Service (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 shall not have more than one Account at any given time. Unusual 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 the Service if you have been previously removed by Unusual, or if you have been previously banned from any of the Service.
2.5. Necessary Equipment and Software. You must provide all Devices and other equipment or software necessary to access or use the Service. You are solely responsible for any fees, including internet connection or mobile fees, that you incur when accessing the Service.
CONTENT.
3.1. Types of Content. Subject to your compliance with this Agreement, you may share or upload information, data, text, software, music, sound, screenshots, photographs, graphics, video, messages, tags and/or other materials (“Content”) through the Service, including by way of your prompts, comments, questions, and other input that you provide to the Chatbot or other areas of the Service (collectively, “Input”). You, and not Unusual, are entirely responsible for all Input that you upload, share, post, email, transmit, query or otherwise make available through or to the Service, including the Linked App Content. When you make available any Input on or to the Service, you represent that you own and/or have sufficient rights to use such Input in connection with the Service, including to grant the license set forth in Section 3.3 (License to Your Content). If you do not have such rights in any Content, such as messages from a third-party or a third party’s contact information, you agree that you will not make such Content available through the Service as Input. In response to any prompts, comments, questions, and other Input that You provide to the Service, the Service, together with AI Tools, may generate new Content based on such Input (“Output”). You acknowledge that the Outputs are based on your Inputs, and that Unusual has no control over any such Inputs. Accordingly, all Outputs are provided “as is” and with “all faults”, and Unusual makes no representations or warranties of any kind or nature with respect to any Inputs or Outputs, including any warranties of accuracy, completeness, truthfulness, timeliness or suitability. While Unusual may from time to time employ certain techniques, such as blurring, with respect to anonymizing Input and Output, you acknowledge and agree that (a) such techniques are not foolproof and may be inaccurate or incomplete; (b) Unusual does so in its own discretion and you, and not Unusual, are solely responsible for your use of your Outputs created through the Service; and (c) you assume all risks associated with your use of any Outputs, including any potential copyright infringement claims from third parties, any disclosure of your Outputs that personally identifies you or any third party, or any reputational damage to you or any third party arising from any Output or your disclosure thereof. You are solely responsible for reviewing any Output prior to its use and exercising your own judgement as to its suitability for use.
3.2. Ownership of Content. Unusual does not claim ownership of any Inputs or Outputs (collectively, “Your Content”). Subject to Section 3.3 (License to Your Content), as between Unusual and you, you are the owner of all right, title and interest in Your Content. Notwithstanding the foregoing, given the nature of artificial intelligence which powers the Service through AI Tools, you acknowledge that: (a) Output may not be unique across users and the Service may generate the same or similar output for another user under similar terms, and you do not have any right, title or interest in or to any output provided to other users, regardless of the level or degree of similarity with the Outputs; (b) Unusual does not represent or warrant that the Outputs are protected or protectible by any intellectual property rights under applicable law; and (c) Unusual does not guarantee that (i) you will exclusively own or have any or all necessary rights to use the Output for your intended purposes, or (ii) the Output does not incorporate, infringe or misappropriate the intellectual property or proprietary rights of any third party.
3.3. License to Your Content. You acknowledge that the Service utilizes certain AI Tools, including artificial intelligence and machine learning algorithms that can be trained to recognize and search for certain patterns (including natural language patterns), information, objects and events, and that such recognition is developed over time based on your use of the Service, Your Content and User Content. Accordingly, subject to any applicable Account settings that may be made available to you, you grant Unusual a non-exclusive, transferable, perpetual, irrevocable, worldwide, fully-paid, royalty-free, sublicensable (through multiple tiers of sublicensees) right (including any moral rights) and license to use, copy, reproduce, modify, adapt, prepare derivative works from, translate, distribute, publicly perform, publicly display and derive revenue or other remuneration from Your Content (in whole or in part) for the purposes of operating and providing the Service to you and to our other users (including after you cease use of the Service or terminate this Agreement), developing and improving other products and services, or for any other purpose. Without limiting the foregoing, you acknowledge that Your Content may be used by Unusual, or third-party providers of AI Tools, to train, develop, enhance, evolve and improve the Service and the underlying artificial intelligence models, algorithms and related technology, products and services (including for labeling, classification, content moderation and model training purposes). Notwithstanding the foregoing, Unusual does not offer for sale or sell the personal data of its users. For more information on how we use your personal data, please visit our Privacy Policy.
3.4. Content Provided by Other Users. The Service may contain Content provided by other users (“User Content”), including without limitation such users’ Output. Unusual is not responsible for and does not control User Content. Unusual does not approve or endorse, or make any representations or warranties with respect to, User Content. You use all User Content and interact with other users at your own risk. If you submit Your Content (including any Output) to any area of the Service that is accessible by other users, including any in-App chats or messages with any Connection, you acknowledge and agree that other users may be able to search for, see, use, interact with, modify and/or reproduce any of Your Content, on or off the Service. You are solely responsible for your interactions with other users of the Service and any other parties with whom you interact through the Service, including your decision to share information with a Connection; provided, however, that Unusual reserves the right, but has no obligation, to intercede in any disputes between you and any other users. You agree that Unusual will not be responsible for any liability incurred as the result of your interactions with other users.
3.5. AI Services. Our Service may utilize certain third-party artificial intelligence and deep learning platforms, algorithms, tools and models (“AI Services”) to generate Output. You acknowledge and agree that Unusual may share your Inputs with the AI Services for this purpose and such AI Services may not be required to maintain the confidentiality of any of Your Content. Further, you understand that additional license requirements may apply to certain AI Services, including that such AI Services may retain certain rights to use or disclose Your Content, including to further train their algorithmic models. You must review and comply with any such requirements prior to your use of any service that relies on AI Services. You assume all risks associated with your use of such AI Services. Unusual will have no liability for the unavailability of any AI Services, or any third party’s decision to discontinue, suspend or terminate any AI Services.
3.6. Content Restrictions. Your use of the Service must comply at all times with Unusual’s acceptable use policy for use of the Service, as made available at content.sitch.net/acceptable-use-policy/ and as may be updated from time to time (“Acceptable Use Policy”) and guidelines for interacting with other users on the Service, as made available at content.sitch.net/community-guidelines/ and as may be updated from time to time (the “Community Guidelines”) and any applicable AI Services terms. Without limiting the foregoing, you must not share Content on or through the Service, or attempt to create Output through the Service, that: (a) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, pornographic, offensive, or profane; (b) infringes or misappropriates any third party’s intellectual property rights or other proprietary rights; (c) contains any viruses, worms or other malicious computer programming codes that may damage the Service; (d) contains any personal information, such as financial, medical or other sensitive personal information such as government IDs, passport numbers or social security numbers; (e) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes, or (f) violates the terms of any applicable AI Services. Furthermore, Your Content may not contain nudity, violence, sexually explicit, obscene, or offensive subject matter as determined by Unusual in its sole discretion. You may not post or make available any Content that includes any identifiable person or any of their personal characteristics without that person’s permission.
3.7. Storage. Unless expressly agreed to by Unusual in writing elsewhere, Unusual has no obligation to store any of Your Content. Unusual 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 the Service. Certain features and functionality of the Service may enable you to specify the level at which the Service restricts access to Your Content. In such cases, you are solely responsible for applying the appropriate level of access to Your Content. If you do not choose a level of access, the system may default to its most permissive setting.
OWNERSHIP.
4.1. The Service. Except with respect to Your Content, you agree that Unusual and its suppliers or licensors own all rights, title and interest in the Service (including but not limited to, any computer code, themes, objects, characters, concepts, artwork, animations, sounds, methods of operation, moral rights, documentation, and software) and all improvements, enhancements and updates made thereto. You shall not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any the Service.
4.2. Trademarks. “Unusual Circumstances”, “Sitch”, “SITCH®”, “Sitch App”, the Sitch avatar, and all related stylizations, graphics, logos, service marks and trade names used on or with the Service are the trademarks of Unusual and may not be used without permission in connection with your, or any third-party’s, products or services. Other trademarks, service marks and trade names that may appear on or in the Service are the property of their respective owners.
4.3. Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments, or any other public area on the Service, you hereby expressly permit Unusual to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
4.4. Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Unusual through its suggestion, feedback, forum, or similar pages (“Feedback”) is at your own risk and that Unusual 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 Unusual 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, for any purpose, including without limitation in connection with the operation and maintenance of the Service and/or Unusual’s business.
USER CONDUCT AND CERTAIN RESTRICTIONS. As a condition of use, you agree not to use the Service for any purpose that is prohibited by this Agreement, the Community Guidelines, or applicable law. You shall not (and shall not permit any third party) to: (1) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Service or any portion of the Service; (2) frame or utilize framing techniques to enclose any trademark or logo located on the Service or any other portion of the Service (including images, text, page layout or form); (3) use any metatags or other “hidden text” using Unusual’s name or trademarks; (4) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Service except to the extent the foregoing restrictions are expressly prohibited by applicable law; (5) 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 Service (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Service 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); (6) remove or destroy any copyright notices or other proprietary markings contained on or in the Service; (7) impersonate any person or entity, including any employee or representative of Unusual; or (8) interfere with or attempts to interfere with the proper functioning of the Service or use the Service in any way not expressly permitted by this Agreement, including but not limited to violating or attempting to violate any security features of the Service, introducing viruses, worms, or similar harmful code into the Service, 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” the Service. The rights granted to you in this Agreement are subject to your compliance with the restrictions set forth in this section. Any unauthorized use of the Service terminates the licenses granted by Unusual pursuant to this Agreement.
INVESTIGATIONS AND MONITORING. Unusual may, but is not obligated to, investigate, monitor, pre-screen, remove, refuse, or review the Service and/or Content, including Your Content and User Content, at any time. 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.
6.1. Investigations and Enforcement. Without limiting the foregoing, Unusual reserves the right to: (a) remove or refuse to post any of Your Content for any or no reason in our sole discretion; (b) take any action with respect to any of Your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Service or the public, or could create liability for Unusual; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to and cooperation with law enforcement and/or other applicable legal authorities, for any illegal or unauthorized use of the Service or if Unusual otherwise believes that criminal activity has occurred; and/or (e) terminate or suspend your access to all or part of the Service for any or no reason, including without limitation, any violation of this Agreement. Upon determination of any possible violations by you of any provision of this Agreement, Unusual, may, at its sole discretion immediately terminate your license to use the Service, or change, alter or remove Your Content, in whole or in part, without prior notice to you. If Unusual believes that criminal activity has occurred, Unusual reserves the right to, except to the extent prohibited by applicable law, disclose any information or materials on or in the Service, including Your Content, in Unusual’s possession in connection with your use of the Service, 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 Unusual, its users or the public, and all enforcement or other government officials, as Unusual in its sole discretion believes to be necessary or appropriate.
6.2. Background Checks. IN CERTAIN LIMITED CIRCUMSTANCES, SUCH AS IN RESPONSE TO REPORTS OF SUSPECTED MISCONDUCT, UNUSUAL MAY INVESTIGATE WHETHER A USER HAS A CRIMINAL HISTORY, WHICH MAY, DEPENDING ON THE CIRCUMSTANCES, INCLUDE SEARCHING SEX OFFENDER REGISTRIES OR OTHER PUBLIC RECORDS. THIS IS NOT A GUARANTEE THAT UNUSUAL HAS RUN ANY BACKGROUND CHECKS WITH RESPECT TO ANY OF YOUR CONNECTIONS. IF UNUSUAL DOES INVESTIGATE CRIMINAL HISTORY, AND IF SUCH INVESTIGATIONS IDENTIFY A PERSON WITH A CRIMINAL CONVICTION, UNUSUAL MAY USE AVAILABLE INFORMATION TO DETERMINE WHETHER THE PERSON IDENTIFIED BY THE INVESTIGATION IS THE SAME PERSON AS THE USER ABOUT WHOM THE INVESTIGATION WAS CONDUCTED. FOLLOWING ANY SUCH INVESTIGATION, WITH RESPECT TO ANY USER THAT UNUSUAL REASONABLY BELIEVES TO HAVE BEEN CONVICTED OF A SEX OFFENSE (SUCH AS SEXUAL ASSAULT OR SEXUAL HARASSMENT, AND INCLUDING ANY REGISTERED SEX OFFENDERS), OR A CONVICTION FOR HUMAN TRAFFICKING, STALKING, KIDNAPPING, CHILD ABUSE, DOMESTIC ABUSE, MURDER, HATE CRIMES, OR TERRORISM OR VIOLENT EXTREMISM, UNUSUAL MAY TAKE STEPS TO BLOCK THAT PERSON FROM USING THE SERVICES. UNUSUAL RESERVES THE RIGHT TO BLOCK USERS FOR OTHER OFFENSES, OR FOR OTHER VIOLATIONS OF THIS AGREEMENT, OR FOR OTHER REASONS IN OUR SOLE DISCRETION. CRIMINAL BACKGROUND INVESTIGATIONS, WHEN CONDUCTED, ARE NOT TYPICALLY UPDATED BY UNUSUAL. ADDITIONALLY, WHILE WE MAY FROM TIME TO TIME CONDUCT INVESTIGATIONS FOR CRIMINAL HISTORIES ON SOME USERS, THEY ARE NOT FOOLPROOF. ANY INVESTIGATIONS FOR CRIMINAL HISTORIES MAY GIVE USERS A FALSE SENSE OF SECURITY. THE CHECKS FOR CRIMINAL HISTORIES THAT MAY BE CONDUCTED BY UNUSUAL ARE NOT A PERFECT SAFETY SOLUTION. CRIMINALS MAY CIRCUMVENT EVEN THE MOST SOPHISTICATED SEARCH TECHNOLOGY. NOT ALL CRIMINAL RECORDS ARE PUBLIC IN ALL STATES AND NOT ALL DATABASES ARE UP TO DATE. ONLY PUBLICLY AVAILABLE CONVICTIONS ARE INCLUDED IN CHECKS, AND CHECKS DO NOT COVER OTHER TYPES OF CONVICTIONS OR ARRESTS OR ANY CONVICTIONS FROM FOREIGN COUNTRIES. YOU ACKNOWLEDGE AND AGREE THAT YOU INTERACT WITH OTHER USERS AT YOUR OWN RISK.
THIRD PARTIES AND THIRD-PARTY SERVICES.
7.1. Interactions with other Users. You are solely responsible for your interactions with other users, including without limitation any Connections; provided, however, that we reserve the right, but have no obligation, to intercede in such disputes. You agree that Unusual will not be responsible for any liability incurred as the result of such interactions.
7.2. Third-Party Services. The Service may use and/or contain links to third-party websites, applications, services (including without limitation AI Services), and ads, (collectively, the “Third-Party Services”). Such Third-Party Services are not under the control of Unusual. Unusual is not responsible for any Third-Party Services. When you use a Third-Party Service, you become subject to the terms and conditions (including privacy policies) of another website or destination. Unusual does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or any product or service provided in connection therewith. You use all links in Third-Party Services at your own risk. When you leave our Service, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
7.3. Third-Party App Access. With respect to any App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you shall only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple Media Terms of Service, except that such App Store Sourced Application may be accessed, acquired, and used by other accounts associated with the purchaser via Apple’s Family Sharing function, volume purchasing, or Legacy Contacts function. Notwithstanding the first sentence in this section, with respect to any App accessed 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 App on a shared basis within your designated family group.
7.4. Accessing and Downloading the App from the Apple App Store. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
You acknowledge and agree that (i) this Agreement is concluded between you and Unusual only, and not Apple, and (ii) Unusual, 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.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
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 Unusual 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 Unusual.
You and Unusual acknowledge that, as between Unusual and Apple, Apple is not responsible for addressing any claims you have or 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.
You and Unusual 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 Unusual and Apple, Unusual, 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 this Agreement.
You and Unusual acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
Without limiting any other terms of this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
FEES AND PURCHASE TERMS.
8.1. Payment Service Provider. Unusual uses one or more third-party service providers for payment services (e.g., card acceptance, merchant settlement, and related services) (“Payment Service Provider”). Please note that online payment transactions may be subject to validation checks by our Payment Service Provider and your card issuer, and we are not responsible if your card issuer declines to authorize payment for any reason. For your protection, our Payment Service Provider uses various fraud prevention protocols and industry standard verification systems to reduce fraud and you authorize it to verify and authenticate your payment information. Your card issuer may charge you an online handling fee or processing fee. We are not responsible for this. In some jurisdictions, our Payment Service Provider may use third parties under strict confidentiality and data protection requirements for the purposes of payment processing services.
8.2. Payment. You shall pay all fees or charges (“Fees”) to your Account in accordance with the fees, charges and billing terms in effect at the time a Fee is due and payable. By providing Unusual and/or our Payment Service Provider with your payment information, you agree that Unusual and/or our Payment Service Provider is authorized to immediately invoice your Account for all Fees due and payable to Unusual hereunder and that no additional notice or consent is required. You shall immediately notify Unusual and/or our Payment Service Provider of any change in your payment information to maintain its completeness and accuracy. Unusual reserves the right at any time to change its prices and billing methods in its sole discretion. You agree to have sufficient funds or credit available upon placement of any order to ensure that the purchase price is collectible by us. Your failure to provide accurate payment information to Unusual and/or our Payment Service Provider, as applicable, or our inability to collect payment constitutes your material breach of this Agreement. Except as expressly set forth in this Agreement, all Fees for the Service are non-refundable.
8.3. Subscriptions. If you purchase access to certain features and functionality of the Services on a time-limited basis (a “Subscription”), the Fee (“Service Subscription Fee”) for each term of such Subscription (“Subscription Term”) will be billed at the start of such Subscription Term, or otherwise in accordance with your elections at the time of purchase. Unusual reserves the right to change the timing of our billing. Unusual reserves the right to change the Service Subscription Fee pricing at any time in accordance with Section 16.6 (Agreement Updates). If changes to the Service Subscription Fee occur that impact your Subscription, Unusual will use commercially reasonable efforts to notify you, such as by sending an email to the email address associated with your Account. If you do not agree with such changes, you may cancel your Subscription as set forth in Section 8.3(a)(i) (Cancelling Subscriptions).
Automatic Renewal. If you elect to purchase a Subscription, your Subscription will continue and automatically renew for an additional Subscription Term at the expiration of the then-current Subscription Term, at Unusual’s then-current price for such Subscription, until terminated in accordance with this Agreement. By subscribing, you authorize Unusual to charge the payment method designated in your Account now, and again at the beginning of any subsequent Subscription Term. Upon renewal of your Subscription, if Unusual does not receive payment, (i) you shall pay all amounts due on your Account upon demand and/or (ii) you agree that Unusual may either terminate or suspend your Subscription and continue to attempt to charge your designated payment method until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new Subscription commitment period will begin as of the day payment was received).
Cancelling Subscriptions. If you purchased your Subscription directly from Unusual, you may cancel your Subscription through your Account. If you do not wish your Account to renew automatically, or if you want to change or terminate your Subscription, you must contact Unusual at [email protected], or effect such change or termination through your Account. If you wish to cancel, change, or terminate a Subscription that you purchased from a third-party application store, you must do so prior to the expiration of the then-current Subscription Term via such third-party application store.
Effect of Cancellation. 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 Subscription Term expires. However, except as set forth in Section 8.3(c), you will not be eligible for a prorated refund of any portion of the Service Subscription Fee paid for the then-current Subscription Term.
Upgrades and Downgrades. If you choose to upgrade your Subscription in the middle of a Subscription Term, such upgrade will take effect immediately and any incremental fees associated with such upgrade will be charged in accordance with this Agreement. In any future Subscription Term, the Service Subscription Fees will reflect any such upgrades. If you choose to downgrade a Subscription, the downgrade will take effect as of the first day of the next Subscription Term. Downgrading a Subscription may cause loss of content, features, or capacity of the Services as available, and Unusual does not accept any liability for such loss.
Additional Cancellation and Refund Rights. For subscribers residing in California or New York, the terms below apply:
Cancellation. YOU MAY CANCEL YOUR SUBSCRIPTION, WITHOUT PENALTY OR OBLIGATION, AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY FOLLOWING THE DATE YOU SUBSCRIBED (EXCLUDING SUNDAYS AND HOLIDAYS). IN THE EVENT THAT YOU DIE BEFORE THE APPLICABLE RENEWAL COMMENCEMENT DATE, YOUR ESTATE SHALL BE ENTITLED TO A REFUND OF THAT PORTION OF ANY PAYMENT YOU HAD MADE FOR YOUR SUBSCRIPTION WHICH IS ALLOCABLE TO THE PERIOD AFTER YOUR DEATH. IN THE EVENT THAT YOU BECOME DISABLED SUCH THAT YOU ARE UNABLE TO USE THE SERVICES BEFORE THE END OF YOUR SUBSCRIPTION, YOU SHALL BE ENTITLED TO A REFUND OF THAT PORTION OF ANY SERVICE SUBSCRIPTION FEE YOU HAD PAID WHICH IS ALLOCABLE TO THE PERIOD AFTER YOUR DISABILITY BY PROVIDING UNUSUAL NOTICE IN THE SAME MANNER AS YOU REQUEST A REFUND AS DESCRIBED BELOW.
Refunds. In addition to canceling A SUBSCRIPTION, eligible subscribers must request a refund IN CONNECTION WITH SUCH CANCELlATION. If you subscribed using your Apple ID, refunds are handled by Apple, not by Unusual. You may request a refund through your AppleID. You can also submit a request at Apple Support. For all other purchases: please contact Unusual’s customer support team, or, if you purchased from the Google Play Store by logging in to Google Wallet. You may also mail or deliver a signed and dated notice which states that you, the subscriber, are canceling your Subscription, and include the start date of the applicable Subscription Term as well as the effective date of termination. Please also include the email address or mobile number associated with your account along with your order number. This notice shall be sent to Unusual at the contact information listed below. Notwithstanding the foregoing, Unusual shall initiate a refund for eligible California subscribers that cancel in accordance with this Section 8.3(c) within ten (10) days of such cancellation.
New York Users. The following additional provisions(s) apply if you are a New York subscriber (as determined by the zip code you use at the time of your subscription):
If you subscribe for any Service that exceeds a total amount of $25.00, Unusual will provide a minimum of one match to you each month. In the event we do not provide at least one match for two or more successive months, you shall have the option to cancel this Agreement by notifying us in writing at the address stated in this Agreement and to receive a refund of all monies paid pursuant to the cancelled contract; provided, however, that Unusual shall retain as a cancellation fee 15% of the cash price or a pro rata amount for the number of referrals furnished to you, whichever is greater. This shall be your sole remedy for Unusual’s failure to provide at least one match to you each month.
Except in connection with any merger, sale of company assets, reorganization, financing, change of control or acquisition of all or a portion of Unusual’s business by another company or third party or in the event of bankruptcy, Unusual will not, without your prior written consent, sell, assign or otherwise transfer for business or for any other purpose to any person any information and material of a personal or private nature acquired from a purchaser directly or indirectly including but not limited to answers to tests and questionnaires, photographs or background information. You acknowledge and agree that if you post any information, including photographs, to the Services for posting on your profile or other areas of the Services, such information will be publicly accessible, and you are consenting to the display of such information on the Services.
Except if you remain a Unusual member, after the expiration of the term of your Subscription or at the expiration of the Services rendered by Unusual, for any reason, all information and material of a personal or private nature acquired from you directly or indirectly including but not limited to answers to tests and questionnaires, photographs, or background information shall be deleted from any electronic storage devices within a reasonable amount of time.
Our Services are available in limited regions of the United States. If you believe that you have moved outside a location where we provide the Services, please contact us in writing via email to [email protected], and we will work with you to provide alternative services or a refund.
Upon notice in writing and delivered via email to [email protected], you may place your membership on hold for up to one year.
You may review the New York Dating Service Consumer Bill of Rights here.
For more information with respect to your rights as a New York user, please view these additional Terms for New York Users.
Additional Rights. We will honor all additional statutory rights to which you may be entitled. If you believe you are entitled to additional rights, including the right to a refund, under the laws of your state, please contact us.
8.4. Taxes. The Fees do not include any Sales Tax (defined below) that may be due in connection with the Service provided under this Agreement. If Unusual determines it has a legal obligation to collect Sales Tax from you in connection with this Agreement, Unusual shall collect such Sales Tax in addition to the Fees. If any services, or payments for any services, under this Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Unusual, you shall be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you shall indemnify Unusual for any liability or expense Unusual may incur in connection with such Sales Taxes. Upon Unusual’s request, you will provide it 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” means any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
8.5. Withholding Taxes. You shall make all payments of Fees to Unusual free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of Fees to Unusual shall be your sole responsibility, and you shall provide Unusual with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
8.6. Free Trials and Promotional Access. Any free trial or other promotion that provides users access to the Service must be used within the specified time of the trial. At the end of the trial or promotional period, unless otherwise expressly specified when you sign up for such free trial or promotional service, your use of that Service will automatically roll into a paid Subscription at our then-current Service Subscription Fees and you will be charged for such Subscription as set forth in Section 8.3 (Subscriptions) if you do not cancel prior to the expiration of the previous Subscription Term. If you are inadvertently charged for a Subscription and provide us with written notice of the error, please contact us.
Indemnification and release of claims.
9.1. Indemnification. You shall indemnify and hold Unusual, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Unusual Party” and collectively, the “Unusual 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: (1) Your Content, including any use of the Output by you; (2) your use of, or inability to use, the Service; (3) your violation of this Agreement; (4) your violation of any rights of another party, including your use of any Input that infringes a third party’s proprietary rights; or (5) your violation of any applicable laws, rules or regulations. Unusual 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 Unusual in asserting any available defenses. This provision does not require you to indemnify any of the Unusual Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Service provided hereunder. You agree that the provisions in this section will survive any termination of your Account, this Agreement and/or your access to the Service.
9.2. Release. You hereby release Unusual and all officers, founders, executive management, subsidiaries, licensors, advertisers, merchants, licensees, directors, owners, partners, agents, affiliates, advisors, and employees from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Services, including but not limited to any interactions with or conduct of other users of any kind arising in connection with or as a result of these Terms of Use or from your use of the Services.
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
DISCLAIMER OF WARRANTIES.
10.1. As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK, AND THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE UNUSUAL 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 SERVICE OR YOUR CONTENT.
THE UNUSUAL PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (i) THE SERVICE, INFORMATION PROVIDED BY ANY OTHER USER, OR ANY OUTPUT WILL MEET YOUR REQUIREMENTS (SUCH AS THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICE); (ii) YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE OUTPUT, ADVICE, RESULTS, CONNECTIONS, OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE.
ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICE IS ACCESSED AT YOUR OWN RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND/OR ANY DEVICE YOU USE TO ACCESS THE SERVICE, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
From time to time, Unusual may offer new “beta” features or tools with which its users may experiment, INCLUDING LIMITED ACCESS TO BETA VERSIONS OF THE APP OR SERVICES. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Unusual’s sole discretion. The provisions of this section apply with full force to such features or tools.
10.2. No Liability for Conduct of Third Parties. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH THIRD PARTIES ON THE SERVICE. YOU ACKNOWLEDGE AND AGREE THAT THE UNUSUAL PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE UNUSUAL PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, INCLUDING ANY THIRD-PARTY PROVIDERS OF AI SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. YOU UNDERSTAND THAT UNUSUAL DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS. UNUSUAL MAKES NO WARRANTY THAT THE SERVICES PROVIDED BY THIRD PARTIES (INCLUDING AI SERVICES) WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. UNUSUAL MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH SERVICE, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE SERVICE.
10.3. Artificial Intelligence. LAWS AND REGULATIONS GOVERNING USE OF GENERATIVE ARTIFICIAL INTELLIGENCE ARE RAPIDLY EVOLVING, AND UNUSUAL DOES NOT GUARANTEE THAT YOUR USE OF THE SERVICE OR OUTPUT WILL COMPLY WITH APPLICABLE LAWS AND REGULATIONS OR THAT FUTURE LAWS AND REGULATIONS WILL NOT IMPACT YOUR USE THEREOF. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE SERVICE AND ANY OUTPUT COMPLIES WITH ALL APPLICABLE LAWS.
10.4. Compatibility. Unusual does not warrant, and is not responsible for, any inaccurate or incorrect Content that is provided or transmitted by our users, or that is associated with the Services in any way, including any incorrect Content provided by any Connection. Unusual does not guarantee that using the Services will result in meeting someone offline or online, whether or not as a result of any Connection, and we do not guarantee that using the Services will result in any type of relationship or relationship potential between you and another person or group of people. Unusual does not guarantee your compatibility with any other users of the Services, whether recommended, suggested, or not. Any advice that may be posted on the Service is for entertainment purposes only, and you agree that it is not to be used to substitute for any professional relationship, or medical, financial, legal, or other advice.
LIMITATION OF LIABILITY.
11.1. Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL THE UNUSUAL 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, OR PROCUREMENT OF SUBSTITUTE SERVICES, IN EACH CASE WHETHER OR NOT ANY UNUSUAL PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICE, OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICE OR THIRD PARTIES, ON ANY THEORY OF LIABILITY, INCLUDING TO THE EXTENT RESULTING FROM: (a) THE USE OR INABILITY TO USE THE SERVICE; (b) ANY DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; (e) ANY ERROR OR DELAY IN TRANSMISSION OF MESSAGES BETWEEN USERS; OR (f) ANY OTHER MATTER RELATED TO THE SERVICE, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY DOES NOT APPLY TO LIABILITY OF AN UNUSUAL PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A UNUSUAL PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A UNUSUAL PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
11.2. Cap on Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, THE UNUSUAL PARTIES SHALL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO Unusual by you during the THREE-month period prior to the act, omission or occurrence giving rise to such liability; (b) $100; or (c) IF APPLICABLE, THE STATUTORY REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY DOES NOT APPLY TO LIABILITY OF A UNUSUAL PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A UNUSUAL PARTY’S NEGLIGENCE; OR (ii) ANY INJURY CAUSED BY A UNUSUAL PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
11.3. User Content. UNUSUAL 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.
11.4. Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
11.5. Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN UNUSUAL AND YOU.
PROCEDURE FOR MAKING CLAIMS OF INTELLECTUAL PROPERTY RIGHT INFRINGEMENT. It is Unusual’s policy to terminate membership privileges of any user who repeatedly infringes copyright, trademark, or other intellectual property rights upon prompt notification to Unusual by the respective intellectual property owner or their legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on or made available to or through the Service in a way that constitutes intellectual property rights infringement, please provide our designated intellectual property agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright, trademark, or other intellectual property right; (2) a description of the copyrighted work, trademark, or other intellectual property right that you claim has been infringed; (3) a description of the location on the Service of the material that you claim is infringing; (4) your address, telephone number, and email address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright, trademark, or other intellectual property right owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright, trademark, or other intellectual property right owner or authorized to act on the copyright, trademark, or other intellectual property right owner’s behalf. Contact information for Unusual’s designated agent for notice of claims of infringement is as follows: Unusual Circumstances Inc. ATTN: LEGAL DEPARTMENT, 1111B S Governors Ave STE 6515 Dover, DE 19904.
TERM AND TERMINATION.
13.1. Term. The term of this Agreement commences on the date when you accept this Agreement (as described in the preamble above), and continues in full force and effect while you use the Service, unless terminated earlier in accordance with this Agreement.
13.2. Termination of Service by Unusual. You have thirty (30) days from the start of any Subscription Term, for any Service hereunder, to cancel such Service, in which case, Unusual will refund your Service Subscription Fee if already paid pursuant to Section 8.2 (Payment) or 8.3 (Subscriptions), for the applicable Service. Except as expressly set forth above, the Service Subscription Fee for any Service is non-refundable. If you have materially breached any provision of this Agreement, or if Unusual is required to do so by law (e.g., where the provision of the Service is, or becomes, unlawful), Unusual has the right to, immediately and without notice, suspend or terminate any Service provided to you. Unusual reserves the right to terminate this Agreement or your access to the Service at any time without cause upon notice to you. You agree that all terminations for cause are made in Unusual’s sole discretion and that Unusual shall not be liable to you or any third party for any termination of your Account.
13.3. Termination by You. If you want to terminate this Agreement, you may do so by (a) notifying Unusual at any time and (b) closing your Account for the Service. Your notice should be sent, in writing, to Unusual’s address set forth below. ANY SUCH TERMINATION WILL BE EFFECTIVE AT THE END OF THE THEN-CURRENT TERM OF ANY AND ALL OF THE SUBSCRIPTIONS AS SET FORTH IN SECTION 8.3(a) (AUTOMATIC RENEWAL), WHICH WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 8.3(a) (AUTOMATIC RENEWAL).
13.4. Effect of Termination. Upon termination of the Service or the applicable feature or functionality thereof, your right to use the Service or the applicable feature or functionality thereof will automatically terminate, and we may delete any or all of Your Content associated therewith. If we terminate your Account for cause, we may also bar your further use or access to the Service. Unusual will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of this Agreement which by their nature should survive, will survive termination of Service, including without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
13.5. No Subsequent Registration. If this Agreement is terminated for cause by Unusual or if your Account or ability to access the Service is discontinued by Unusual due to your violation of any portion of this Agreement or for conduct otherwise deemed inappropriate, then you agree that you shall not attempt to re-register with or access the Service through use of a different member name or otherwise.
INTERNATIONAL USERS. The Service may 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 Unusual intends to announce such service or Content in your country. The Service is controlled and offered by Unusual from its facilities in the United States of America. Unusual makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other countries do so at their own volition and are responsible for compliance with local law.
ARBITRATION AGREEMENT. Please read this section (the “Arbitration Agreement”) carefully. It is part of your contract with Unusual and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
15.1. Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Unusual agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or this Agreement and prior versions of this Agreement, including claims and disputes that arose between you and us before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (a) you and Unusual may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (b) you or Unusual 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 this Agreement as well as claims that may arise after the termination of this Agreement.
15.2. Informal Dispute Resolution. There might be instances when a Dispute arises between you and Unusual. If that occurs, Unusual is committed to working with you to reach a reasonable resolution. You and Unusual agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome (“Informal Dispute Resolution”). You and Unusual 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 forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Unusual that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to [email protected] or regular mail to our offices located at 1111B S Governors Ave STE 6515 Dover, DE 19904. The Notice must include: (1) your name, telephone number, mailing address, e‐mail 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.
15.3. Waiver of Jury Trial. YOU AND UNUSUAL 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 Unusual are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 15.1 (Applicability of Arbitration Agreement). There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
15.4. Waiver of Class and Other Non-Individualized Relief. YOU AND UNUSUAL AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 15.9 (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 Section 15.9 (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 section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Unusual 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 New York. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent you or Unusual from participating in a class-wide settlement of claims.
15.5. Rules and Forum. This 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 Unusual 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: (a) 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; (b) a statement of the legal claims being asserted and the factual bases of those claims; (c) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States dollars; (d) a statement certifying completion of the Informal Dispute Resolution process as described above; and (e) 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: (i) 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; (ii) 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 (iii) 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 Unusual otherwise agree, or the Batch Arbitration process discussed in Section 15.9 (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 set forth in the applicable AAA Rules.
You and Unusual 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 shall be subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
15.6. Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of New York 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 Section 15.9 (Batch Arbitration) is triggered, the AAA will appoint the arbitrator for each batch.
15.7. 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: (a) all Disputes arising out of or relating to Section 15.4 (Waiver of Class and Other Non-Individualized Relief), including any claim that all or part of Section 15.4 (Waiver of Class and Other Non-Individualized Relief) is unenforceable, illegal, void or voidable, or that such Section 15.4 (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; (b) except as expressly contemplated in Section 15.9 (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; (c) 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 (d) 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 Section 15.9 (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.
15.8. 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 Unusual 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.
15.9. Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Unusual agree that in the event that there are one-hundred (100) or more individual Requests of a substantially similar nature filed against Unusual 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 (a) 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); (b) appoint one arbitrator for each batch; and (c) 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 Unusual.
You and Unusual 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: (i) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (ii) 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.
15.10. 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: 1111B S Governors Ave STE 6515 Dover, DE 19904, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address associated with 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.
15.11. Invalidity, Expiration. Except as provided in Section 15.4 (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 Unusual 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.
15.12. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Unusual makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Unusual at 1111B S Governors Ave STE 6515 Dover, DE 19904, your continued use of the Service, including the acceptance of products and services offered on the Service 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 Service, any communications you receive, any products sold or distributed through the Service or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Unusual will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
GENERAL PROVISIONS.
16.1. Electronic Communications. The communications between you and Unusual may take place via electronic means, whether you visit the Service or send Unusual emails, or whether Unusual posts notices on the Service or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Unusual in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Unusual electronically provides to you satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
16.2. Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Unusual’s prior written consent. Unusual may, without your consent, freely assign and transfer this Agreement, including any of its rights, obligations, or licenses granted under this Agreement. Any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
16.3. Force Majeure. Unusual 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, pandemics, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
16.4. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Service, please contact us at: [email protected] 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.
16.5. Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Service of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
16.6. Agreement Updates. When changes are made, Unusual will make a new copy of this Terms of Use and/or Supplemental Terms, as applicable, available on the Service, and we will also update the “Last Updated” date at the top of this Agreement. If we make any material changes and you have registered an Account with us, we may also send an email with notice of such changes to you at the email address associated with your Account. Unless otherwise stated in such update, any changes to this Agreement will be effective immediately for users without an Account and thirty (30) days after posting for users with an Account. Unusual may require you to provide consent to the updated Agreement in a specified manner before further use of the Service is permitted. IF YOU DO NOT AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU SHALL STOP USING THE SERVICE.
16.7. Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Unusual agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state or federal courts located in New York City, New York.
16.8. Governing Law. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York, 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.
16.9. Choice of Language. It is the express wish of the parties that this Agreement and all related documents have been drawn up in English.
16.10. Notice. Where Unusual requires that you provide an email address, you are responsible for providing Unusual with a valid and current email address. In the event that the email address you provide to Unusual is not valid, or for any reason is not capable of delivering to you any notices required by this Agreement, Unusual’s dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to Unusual at the following address: [email protected]. Such notice shall be deemed given when received by Unusual by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
16.11. Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
16.12. Severability. If any portion of this Agreement is held invalid or unenforceable, that portion must be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions must remain in full force and effect.
16.13. Export Control. You may not use, export, import, or transfer the Service except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Service, and any other applicable laws. In particular, but without limitation, the Service 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 the Service, you represent and warrant that (1) 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 (2) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Service 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 Unusual 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 Unusual products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
16.14. 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.