These Terms of Use (“Terms”) of Ratemate, Inc. and its affiliate companies (“Company,” “we,” “us” or “our”) apply to all contents and information available within the Company’s Ratemate app (collectively the “App”). You agree, on behalf of yourself and the institution/company or other legal entity that you represent, to be legally bound by these Terms when you access or use the App.

 

Please review THESE TERMS carefully. By using THE App, you acknowledge that you ARE AT LEAST the age of majority in your jurisdiction AND accept the TERMS set forth herein. If you ARE NOT AT LEAST the age of majority in your jurisdiction or do not accept such TERMS, you may not access the App.

 

1. Changes to Terms

The Effective Date of these Terms is set forth at the top of this webpage. We may change these Terms from time to time in our discretion. Changes will be posted to this webpage. We encourage you to return to this webpage frequently so that you are aware of our current Terms. Your continued use of the App after the Effective Date constitutes your acceptance of the amended Terms. The amended Terms supersede all previous versions.

 

1. Privacy

Please review our Privacy Policy (“Privacy Policy”) which also applies to your use of the App.

 

1. Intellectual Property

The App, and the information, files, documents, text, photographs, images, audio, and video which it contains and any material made available for download on the App (collectively, the “Content”) are the property of us or our licensors, as applicable. The App and Content are protected by United States and international copyright and trademark laws. The Content may not be copied, distributed, modified, reproduced, published or used, in whole or in part, except for purposes authorized or approved in writing by us. All rights not expressly granted herein are reserved to us and our licensors.

 

1. License

Company grants you a limited license to access and make personal use of the App subject to these Terms. The App and any part of it may not be reproduced, copied, framed or otherwise exploited for any commercial purpose without the express prior written consent of Company.

 

1. User Accounts

You may register an account on the App. You agree that the information you provide to us during the registration process and at all other times when you use the App is accurate, current, and complete, and that you will keep it up-to-date at all times. If you provide any information that is, or that Company has reasonable grounds to suspect is, untrue, inaccurate, not current, or incomplete, Company has the right to suspend or terminate your account and refuse any and all current or future use of the App (or any portion thereof).

 

You are the sole authorized user of any account you create through the App and are solely and fully responsible for all activities that occur under your account. You may not authorize others to use your accountholder status, and you may not assign or otherwise transfer your account to any other person or entity. If you have reason to believe that your account is no longer secure, you must immediately notify us by contacting us at the contact information set forth at the end of these Terms. Company will not be liable for losses, damages, liability, expenses, and fees incurred by Company or a third party arising from someone else using your account regardless of whether you have notified us of such unauthorized use. You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your account.

 

1. User Content and Submissions

 

All material, information or other communication you submit, transmit, upload or post to this App including any ratings, reviews, photographs, videos, ideas, comments, suggestions, feedback, data, images, sounds, text or the like (“User Content”) will be considered non-confidential and non-proprietary. Except with respect to personally identifiable information, which we will collect, use and disclose in accordance with our Privacy Policy, Company will have no obligations with respect to the User Content. You hereby assign to Company all intellectual property rights, including any moral, publicity and privacy rights you have in any User Content. By submitting the User Content to Company, you agree Company is free to use the User Content, without limitation and without any compensation to you, for any purpose whatsoever and in identifiable or de-identified form. Without limitation, Company and its designees will be free to copy, disclose, distribute, incorporate, publicly display, publicly perform, modify, create derivative works of, commercialize and otherwise use the User Content for any and all commercial or noncommercial purposes anywhere in the world.

 

You are responsible for the User Content you post to the App and must be compliant with applicable laws, rules and regulations when posting such User Content. You represent and warrant that you have or have obtained all rights, licenses, consents, permissions, power and/or authority necessary to post the User Content on the App, including all consents and permissions.

 

In submitting User Content through the App, you agree you will not:

• Submit material about any individual when you have knowledge that such individual objects or has objected to such submission;

• Submit material that is unlawful, obscene, lewd, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, excessively violent, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate or objectionable;

• Post advertisements or solicitations of business or employment;

• Impersonate another person;

• Submit material that is copyrighted, protected by trade secret or otherwise subject to third party intellectual property or proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant Company all of the license rights granted herein;

• Submit material that is unsuitable for minors in any country; or

• Submit material that is malicious or destructive in nature, or contain a virus, malware or other computer programming routine or engine that is intended to damage or otherwise interfere with any system, data, or information.

 

Company reserves the right, but has no obligation, to refuse to post, block or remove User Content from the App for any reason in our sole discretion. Company may terminate your access to or use of the App to prevent further posting or distribution of User Content.

 

1. Copyright Policy

 

The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials posted on the App infringe your copyright, you (or your agent) may send [Company] a “Notification of Claimed Infringement” requesting that the material be removed, or access to it blocked. The notice must include the following information:

 

1. A physical or electronic signature of a person authorized to act on behalf of the owner of the works that have been allegedly infringed;

2. Identification of the copyrighted work alleged to have been infringed (or if multiple copyrighted works located on the App are covered by a single notification, a representative list of such works);

3. Identification of the specific material or link alleged to be infringing or the subject of infringing activity, and information reasonably sufficient to allow [Company] to locate the material on the App;

4. Your name, address, telephone number, and email address (if available);

5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

 

If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send [Company] a counter-notice. Notices and counter-notices with respect to the App should be sent to the contact address set forth at the end of these Terms.

 

1. Third Party Posts

 

Any use or reliance on any posts made by other users or third parties on the App (“Third Party Posts”) is at your own risk. We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any Third Party Posts or endorse any opinions expressed via the App. You understand that by using the App, you may be exposed to Third Party Posts that might be offensive, harmful, inaccurate or otherwise inappropriate, or in some cases, postings that are deceptive. All Third Party Posts are the sole responsibility of the individual who originated such Third Party Posts. We may not monitor or control the Third Party Posts and we cannot take responsibility for such Third Party Posts.

 

1. Security and Restrictions

You are prohibited from violating or attempting to violate the security of the App, including, without limitation, by (a) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (c) accessing or using the App or any portion thereof without authorization; or (d) introducing any viruses, Trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.

 

You agree not to use the App:

• In any way that violates any applicable federal, state, local or international law or regulation;

• To engage in any conduct that restricts or inhibits anyone’s use or enjoyment of the App, or which, as determined by us, may harm us or users of the App or expose them to liability;

• Use the App in any manner that could disable, overburden, damage, or impair the App or interfere with any other party’s use of the App;

• Use any robot, spider or other automatic device, process or means to access the App for any purpose, including monitoring or copying any of the materials on the App;

• Use any manual process to monitor or copy any of the materials on the App or for any other unauthorized purpose without our prior written consent;

• Use any device, software or routine that interferes with the proper working of the App; or

• Otherwise attempt to interfere with the proper working of the App.

 

1. App Store Terms

You acknowledge and agree that the App may be dependent on third-party mobile devices, operating systems, and application sales platforms (such as iOS and Android mobile operating systems, Apple and Google mobile devices, and their respective iTunes App Store and Google Play Store) (each, an “App Platform”). We do not warrant or represent that the App will be compatible with or perform in a stable manner on any App Platform or on any of the various mobile devices and operating system or app store versions associated with any App Platform. We are also not responsible for any charges you may incur from your mobile carrier in using the App including messaging and data usage charges. The App Platforms have their own terms and conditions to which you must agree before downloading or using any applications on your device, including the App published on such App Platform. You agree to comply with, and your use of the App is conditioned upon your compliance with, all applicable agreements, terms and conditions of use or service, and other policies of the applicable App Platform, including the following terms of the Apple App Platform.

 

In addition to your agreement with these Terms, the following provisions apply with respect to your use of any version of the App compatible with the iOS operating system of Apple Inc. (“Apple”):

 

• Apple is not a party to these Terms and does not own and is not responsible for the App. Apple is not providing any warranty for the App except, if applicable, to refund the purchase price for it. Apple is not responsible for maintenance or other support services for the App and will not be responsible for any other claims, losses, liabilities, damages, costs, or expenses with respect to the App, including any third-party product liability claims, claims that the App fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and claims with respect to intellectual property rights infringement. Any inquiries or complaints relating to the use of the App, including those pertaining to intellectual property rights, must be directed to Simon in accordance with these Terms.

• The license you have been granted in these Terms is limited to a non-transferable license to use the App on an Apple-branded product that runs Apple's iOS operating system and is owned or controlled by you, or as otherwise permitted by the Usage Rules set forth in Apple’s App Store Terms of Service. In addition, you must comply with the terms of any third-party agreement applicable to you when using the App, such as your wireless data service agreement.

• 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.

• Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms and, upon your acceptance of the terms and conditions of these Terms, will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof; notwithstanding the foregoing, [Company]’s right to enter into, rescind or terminate any variation, waiver, or settlement under these Terms is not subject to the consent of any third party.

 

1. Disclaimer and Limitation of Liability

WE DO NOT WARRANT THAT ACCESS TO OR USE OF THE APP WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE APP WILL BE CORRECTED. THE APP IS PROVIDED BY COMPANY ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE APP OR THE CONTENT, USER CONTENT OR THIRD PARTY POSTS.

 

EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR OTHER REPRESENTATIVES’ AGGREGATE LIABLILITY FOR ANY DIRECT, INDIRECT, SPECIAL, STATUTORY, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL LOSSES OR DAMAGES OF WHATSOEVER KIND ARISING OUT OF ACCESS TO OR USE OF THE APP, APP-RELATED SERVICES OR ANY CONTENT, USER CONTENT OR THIRD PARTY POSTS EXCEED ONE HUNDRED DOLLARS ($100.00).

 

YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE APP, CONTENT, USER CONTENT, THIRD PARTY POSTS, ANY LINKED APP, OR ANY SERVICES USED THROUGH THE APP IS TO STOP USING THE APP AND/OR THOSE SERVICES. THE FOREGOING LIMITATIONS APPLY EVEN IF THE REMEDIES UNDER THESE TERMS FAIL OF THEIR ESSENTIAL PURPOSE.

 

Any claims arising in connection with your use of the App or any services used through the App must be brought within one (1) year of the date of the event giving rise to such action occurred. 

 

1. Indemnification

You agree to indemnify, defend and hold harmless us and our respective officers, directors, employees, agents and representatives from and against all losses, expenses, damages, and costs, including reasonable attorney fees, resulting from your use of the App, your posting of any User Content, any violation by you of these Terms or from our termination of your access to or use of the App. Such termination will not affect either party’s rights or obligations, which accrued before the termination.

 

1. Arbitration Agreement

Arbitration.  Any dispute, controversy, or claim between us arising out of or relating in any way to these Terms, our App, services offered through our App, your account or any purchase you make from us will be resolved by binding arbitration, rather than in court, except that you or we (1) may elect to assert claims in, or transfer claims to, small claims court if your or our claims qualify and as long as the matter remains in such court and is not removed or appealed to a court of general jurisdiction, and (2) bring suit in any court of competent jurisdiction to enjoin infringement or other misuse of intellectual property rights, including with respect to temporary restraining orders. The Federal Arbitration Act (“FAA”) and federal arbitration law shall apply to this arbitration agreement.  If the FAA is found not to apply to any issue that arises under this section or the enforcement of this arbitration agreement, then that issue shall be resolved under the laws of the State of New York. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award the same damages and relief as a court (including injunctive and declaratory relief or statutory damages).

At least thirty (30) days before beginning an arbitration proceeding, you must send an individualized letter personally signed by you, and identifying yourself by name and address, detailing your legal claims, the requested relief and requesting arbitration to [Ratemate address] by certified mail, Federal Express, UPS or USPS express mail (signature required). We will do the same; except in the event that we do not have a physical address on file for you, by electronic mail to the last known address. Within thirty (30) days of such notice, either party may respond to the letter with a request for an informal dispute resolution conference between the parties by video, with counsel present if the party is represented, and the parties agree to so conduct such conference personally and individually in good faith before initiating arbitration. All applicable claims or filing limitations period shall be tolled during the pendency of this pre-arbitration notice period.

The arbitration will be conducted by JAMS under its then current and applicable Comprehensive Arbitration Rules & Procedures, and where applicable its Mass Arbitration Procedures and Guidelines, unless otherwise stated herein. JAMS’ rules and a form for initiating arbitration proceedings are available on the JAMS website at https://www.jamsadr.com/.
 

If you are a prevailing party, you may seek reimbursement of your fees and costs. However, we may seek our attorney’s fees and costs if the arbitrator finds your claims to be frivolous or brought for an improper purpose or otherwise not satisfying Federal Rule of Civil Procedure 11. There will be only one arbitrator, not a panel.
 

You and we also agree that, if more than one dispute arises against a party regarding the same or substantially similar issues filed by or with the assistance of the same law firm, group of law firms, or organizations, within a ninety (90) day period, our respective claim(s) will be arbitrated in a coordinated fashion such that JAMS (or if JAMS is not available to arbitrate, another agreed upon arbitral forum) shall (1) administer the arbitration demands together; (2) appoint one arbitrator for the coordinated demands; and (3) issue one set of filing and administrative fees due per side, one procedural calendar, and one hearing (if any) in a place to be determined by the arbitrator. To the extent the parties disagree on the application of the provisions of this paragraph, the disagreeing party shall advise JAMS (or if JAMS is not available to arbitrate, another agreed upon arbitral forum), and JAMS (or if JAMS is not available to arbitrate, another agreed upon arbitral forum) shall appoint a sole standing arbitrator to determine the applicability of this paragraph and process. The Administrative Arbitrator’s fees shall be paid by us.  This arbitration agreement will survive termination of the agreement.

Enforceability. If this arbitration agreement is invalidated in whole or in part, by either a court or by JAMS, then the entire arbitration agreement shall be null and void and either party may elect to proceed with the dispute in court. The parties agree that the exclusive jurisdiction in Section 14 (Governing Law; Jurisdiction) shall govern the claim.

Jury Trial Waiver and Small Claims Court. If for any reason a claim proceeds in court rather than in arbitration, we each acknowledge and agree that we each waive any right to a jury trial. We also both agree that you or we may bring suit in any court of competent jurisdiction to enjoin infringement or other misuse of intellectual property rights, including with respect to temporary restraining orders.

Class Action Waiver. Regardless of forum, we each agree that any dispute resolution proceedings or lawsuits, whether in arbitration or in a court of law, will be conducted only on an individual basis and not in a class, or representative action. Therefore, you waive all rights to bring claims on behalf of a class of persons; however, you may still bring an individual claim for public injunctive relief and in small claims court. Nothing in this provision, however, should operate to prevent the parties from settling claims on a class-wide basis or otherwise coordinating claims filed in arbitration.

 

1. Links to Third Party Apps and Online Services

Our App may contain links to third-party websites and online services. Any access to and use of such third-party websites or online services is not governed by our Privacy Policy or these Terms but is instead governed by the privacy policies and terms of use of those third-party websites or online services, and we are not responsible for the information practices of such third-party websites or online services.

 

1. Governing Law; Jurisdiction

These Terms shall be governed by the laws of New York without regard to any conflict of law principles. Further, you and we agree to the jurisdiction of a state or federal court in the State of New York to resolve any dispute, claim, or controversy that relates to or arises in connection with these Terms (and any non-contractual disputes and/or claims relating to or arising in connection with it) and that is not subject to mandatory arbitration under Section 12 (Arbitration Agreement) above.

 

1. Miscellaneous

You represent and warrant that you shall comply with all laws and regulations that apply to your access and use of the App and any App-related services, including, but not limited to, any applicable national laws that prohibit the export or transmission of technical data or software to certain territories or jurisdictions.

 

We reserve the right to seek all remedies available at law and in equity for violations of these Terms, including the right to remove your account and any contents generated by you on the App, block your access to the App, block IP addresses.

 

If any provision of these Terms is held to be unenforceable, the remaining Terms shall remain in full force and effect, and the unenforceable provision shall be replaced by an enforceable provision that comes closest to the intention underlying the unenforceable provision.

 

No waiver by us of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition. Our failure to insist upon or enforce strict performance of any provision of these Terms shall not be construed as a waiver of any right.

 

1. How to Contact Us

If you have any questions, comments or notices regarding these Terms, please contact us at legal@ratemate.com.