THIS AGREEMENT CONTAINS A BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER PROVISION IN THE “BINDING INDIVIDUAL ARBITRATION” SECTION THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT WITH RESPECT TO ANY “DISPUTE” (AS DEFINED BELOW) BETWEEN YOU AND FIKSUDSP, ITS AFFILIATES, PARENTS OR SUBSIDIARIES (COLLECTIVELY, “FIKSUDSP ENTITIES”). YOU HAVE A RIGHT TO OPT OUT OF THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS AS DESCRIBED IN THE “BINDING INDIVIDUAL ARBITRATION” SECTION.
TO ACCEPT THESE TERMS AND CREATE AN ACCOUNT, YOU MUST BE AN ADULT OF LEGAL AGE OF MAJORITY IN THE COUNTRY IN WHICH YOUR ACCOUNT IS REGISTERED. YOU ARE LEGALLY AND FINANCIALLY RESPONSIBLE FOR ALL ACTIONS ON YOUR ACCOUNT, INCLUDING THE ACTIONS OF CHILDREN AND ANYONE ELSE WITH ACCESS TO YOUR ACCOUNT.
This Agreement sets forth the standards of use of GDMServices, Inc. d/b/a FiksuDSP (“FiksuDSP”) Online Services (the “Services”). By using the Website you (the “Member” or “you” / “your”) agree to this Agreement. FiksuDSP reserves the right, at any time, to modify, alter, or update the Agreement without prior notice. Modifications shall become effective immediately upon being posted at the Website. Your continued use of the Service after amendments are posted constitutes an acknowledgement and acceptance of the Agreement and its modifications.
Except as provided in this paragraph, this Agreement may not be amended.
Effective Date: This Agreement was last updated on June 6, 2017.
This Agreement sets forth the standards of use of GDMServices, Inc. d/b/a FiksuDSP (“FiksuDSP”) Online Services (the “Services”). By using the Website you (the “Member” or “you” / “your”) agree to this Agreement. If you do not agree to this Agreement, you should immediately cease all usage of this Website. FiksuDSP reserves the right, at any time, to modify, alter, or update the Agreement without prior notice. Modifications shall become effective immediately upon being posted at the Website. Your continued use of the Service after amendments are posted constitutes an acknowledgement and acceptance of the Agreement and its modifications.
Except as provided in this paragraph, this Agreement may not be amended.
1. Description of Service
FiksuDSP is providing Member with Website Services. Member must provide (1) all equipment necessary for their own Internet connection, including computer and modem and (2) provide for Member’s access to the Internet, and (3) pay any fees relate with such connection.
2. Disclaimer of Warranties
This Website and the Services are provided by FiksuDSP on an “as is” and on an “as available” basis. To the fullest extent permitted by applicable law, FiksuDSP makes no representations or warranties of any kind, express or implied, regarding the use or the results of this Website or the Services in terms of its correctness, accuracy, reliability, or otherwise. FiksuDSP shall have no liability for any interruptions in the use of this Website or the Services. FiksuDSP disclaims all warranties with regard to the information provided, including the implied warranties of merchantability and fitness for a particular purpose, and non-infringement. Some jurisdictions do not allow the exclusion of implied warranties; therefore the above-referenced exclusion is inapplicable.
3. Limitation of Liability
FIKSUDSP SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, AND IN PARTICULAR FIKSUDSP SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOSS OF REVENUE, OR LOSS OF USE, ARISING OUT OF OR RELATED TO THIS WEBSITE OR THE SERVICES OR THE INFORMATION CONTAINED IN IT, WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE, EVEN IF FIKSUDSP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE SOME OF THE ABOVE LIMITATIONS IS INAPPLICABLE.
Member agrees to indemnify and hold FiksuDSP, its parents, subsidiaries, affiliates, officers and employees, harmless from any claim or demand, including reasonable attorneys’ fees and costs, made by any third party due to or arising out of Member’s use of the Services, the violation of this Agreement, or infringement by Member, or other user of the Services using Member’s computer, of any intellectual property or any other right of any person or entity.
5. Modifications and Interruption to Service
FiksuDSP reserves the right to modify or discontinue the Services with or without notice to the Member. FiksuDSP shall not be liable to Member or any third party should FiksuDSP exercise its right to modify or discontinue the Services. Member acknowledges and accepts that FiksuDSP does not guarantee continuous, uninterrupted or secure access to the Website and operation of the Website may be interfered with or adversely affected by numerous factors or circumstances outside of FiksuDSP’s control.
6. Third-Party Sites
7. Disclaimer Regarding Accuracy of Vendor Information
Product specifications and other information have either been provided by the vendors or collected from publicly available sources. While FiksuDSP makes every effort to ensure that the information on this website is accurate, FiksuDSP can make no representations or warranties as to the accuracy or reliability of any information provided on this website. FiksuDSP makes no warranties or representations whatsoever with regard to any product provided or offered by any vendor, and you acknowledge that any Website reliance on representations and warranties provided by any vendor shall be at your own risk.
8. Governing Jurisdiction
Our website is operated and provided in the Commonwealth of Massachusetts. As such, FiksuDSP is subject to the laws of the Commonwealth of Massachusetts, and such laws will govern this Agreement, without giving effect to any choice of law rules. FiksuDSP makes no representation that our website or other services are appropriate, legal or available for use in other locations. Accordingly, if you choose to access our site you agree to do so subject to the internal laws of the Commonwealth of Massachusetts.
9. Compliance with Laws
Member assumes all knowledge of applicable law and is responsible for compliance with any such laws. Member may not use the Service in any way that violates applicable state, federal, or international laws, regulations or other government requirements. Member further agrees not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national, or international law or regulation.
FiksuDSP retains the right, at our sole discretion, to terminate any accounts involved with botnets and related activities. If any hostnames are used as command and control points for botnets, FiksuDSP reserves the right to direct the involved hostnames to a honeypot, loopback address, logging facility, or any other destination at our discretion.
11. Binding Individual Arbitration
Purpose. The term “Dispute” means any dispute, claim, or controversy between you and any of the FiksuDSP Entities regarding any Services or the Website, whether based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this “BINDING INDIVIDUAL ARBITRATION” section (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced. If you have a Dispute with any FiksuDSP Entity or any of a FiksuDSP Entity’s officers, directors, employees and agents that cannot be resolved through negotiation within the time frame described in the “Notice of Dispute” clause below, you and the FiksuDSP Entity that you have a Dispute with agree to seek resolution of the Dispute only through arbitration of that Dispute in accordance with the terms of this section, and not litigate any Dispute in court, except for those matters listed in the Exclusions from Arbitration clause. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
EXCLUSIONS FROM ARBITRATION. YOU AND FIKSUDSP ENTITIES AGREE THAT ANY CLAIM FILED BY YOU OR BY A FIKSUDSP ENTITY IN SMALL CLAIMS COURT ARE NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION.
RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION, YOU MUST NOTIFY US IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT UNLESS A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO 3500 S DUPONT HWY, DOVER, KENT, DELAWARE, 19901, ATTN: LEGAL DEPARTMENT/ARBITRATION AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, (3) YOUR EMAIL, AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH ANY FIKSUDSP ENTITY THROUGH ARBITRATION.
Notice of Dispute. IF YOU HAVE A DISPUTE WITH ANY FIKSUDSP ENTITY, YOU MUST SEND WRITTEN NOTICE TO 3500 S DUPONT HWY, DOVER, KENT, DELAWARE, 19901, ATTN: LEGAL DEPARTMENT/ARBITRATION, ATTN: LEGAL DEPARTMENT: DISPUTE RESOLUTION, TO GIVE FIKSUDSP ENTITY YOU HAVE A DISPUTE WITH THE OPPORTUNITY TO RESOLVE THE DISPUTE INFORMALLY THROUGH NEGOTIATION. You agree to negotiate resolution of the Dispute in good faith for no less than 60 days after you provide notice of the Dispute. If the FiksuDSP Entity you have a Dispute with does not resolve your Dispute within 60 days from receipt of notice of the Dispute, you or the FiksuDSP Entity you have a Dispute with may pursue your claim in arbitration pursuant to the terms in this section.
Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND FIKSUDSP ENTITY WITH WHICH YOU HAVE A DISPUTE SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION. THIS PROVISION IS NOT APPLICABLE TO THE EXTENT THIS WAIVER IS PROHIBITED BY LAW.
Initiation of Arbitration Proceeding/Selection of Arbitrator. If you or the FiksuDSP Entity you have a Dispute with elect to resolve your Dispute through arbitration, the party initiating the arbitration proceeding may initiate it with the American Arbitration Association (“AAA”), www.adr.org, or JAMS www.jamsadr.com. The terms of this section govern in the event they conflict with the rules of the arbitration organization selected by the parties.
Arbitration Procedures. Because the software and/or service provided to you by the FiksuDSP Entity you have a Dispute with concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, applicable federal or state law may also apply to the substance of any Disputes. For claims of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes (“Supplementary Procedures”) shall apply including the schedule of arbitration fees set forth in Section C-8 of the Supplementary Procedures; for claims over $75,000, the AAA’s Commercial Arbitration Rules and relevant fee schedules for non-class action proceedings shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Further, if your claims do not exceed $75,000 and you provided notice to and negotiated in good faith with the FiksuDSP Entity you had a Dispute with as described above, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys’ fees and costs as determined by the arbitrator, in addition to any rights to recover the same under controlling state or federal law afforded to the FiksuDSP Entity you have a Dispute with or you. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. The award will be binding and final, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration. You or the FiksuDSP Entity you have a Dispute with may initiate arbitration in either Suffolk County, Massachusetts or the United States county in which you reside. In the event that you select the county of your United States residence, the FiksuDSP Entity you have a Dispute with may transfer the arbitration to Suffolk County, Massachusetts in the event that it agrees to pay any additional fees or costs you incur as a result of the change in location as determined by the arbitrator.
Severability. If any clause within this section (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this section, and the remainder of this section will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire section will be unenforceable, and the Dispute will be decided by a court and you and the FiksuDSP Entity you have a dispute with each agree to waive in that instance, to the fullest extent allowed by law, any trial by jury.
Continuation. This section survives any termination of this Agreement or the provision of Services to you.
12. Other Terms
Copyright and Trademark Information
- Trademark Information “Fiksu” and the “Fiksu” logo are registered trademarks of GDMServices, Inc. d/b/a FiksuDSP. All other marks are the property of their respective owners. In addition, such use of trademarks or links to the web sites of vendors is not intended to imply, directly or indirectly, that those vendors endorse or have any affiliation with FiksuDSP.
- Copyright InformationAll content included or available on this site, including site design, text, graphics, interfaces, and the selection and arrangements thereof is ©2017 GDMServices, Inc. d/b/a FiksuDSP, with all rights reserved, or is the property of GDMServices, Inc. d/b/a FiksuDSP and/or third parties protected by intellectual property rights. Any use of materials on the website, including reproduction for purposes other than those noted above, modification, distribution, or replication, any form of data extraction or data mining, or other commercial exploitation of any kind, without prior written permission of an authorized officer of FiksuDSP is strictly prohibited. Members agree that they will not use any robot, spider, or other automatic device, or manual process to monitor or copy our web pages or the content contained therein without prior written permission of an authorized officer of FiksuDSP.