MLFairy Terms of Use
The software-as-a-service platform accessible at www.mlfairy.com (the “Site”) is a copyrighted work belonging to 9594426 Canada Inc, a Canadian corporation (“MLFairy”, “us”, “our”, and “we”). MLFairy provides a platform that allows developers to deliver and manage on-device machine learning models and related assets to edge devices including but not limited to smart phones and other mobile devices (“Applications”) (collectively, with all other products and/or services we provide through the Site, the “Services”).
This Terms of Use Agreement (this “Agreement”) forms a legally binding contract between you (“you” or “Developer”) and MLFairy in relation to your use of the Site and Services and the MLFairy software developers kit (“SDK”) to develop, upload, and publish machine learning models and related assets to your Applications. By accessing or using the Site or Services, you are accepting this Agreement and you represent and warrant that you have the right, authority, and capacity to enter into this Agreement. If you are agreeing to be bound by this Agreement on behalf of your employer or another entity, you represent and warrant that you have full legal authority to bind your employer or such entity to this Agreement. If you do not have the requisite authority, you may not accept the Agreement or use the Services or SDK on behalf of your employer or other entity. You may not use the Services or SDK unless you are 18 years old or older, and are not barred from using any of the Services or SDK under the laws of the United States or other countries including the country in which you are resident or from which you use the Services or SDK.
To use the Site and Services, you must first agree to this Agreement by clicking to accept where this option is made available to you. You may not use the SDK, develop Applications, or otherwise access or use the Site if you do not agree to all the terms of this Agreement.
Please review MLFairy’s Privacy Policy located at https://www.mlfairy.com/privacy to understand how we collect, use, and disclose personal information you provide to us in the course of using the Services.
1. Accounts
1.1 Account Creation. In order to use certain features of the Site (e.g., to use all or some of the Services), you must register for an account with MLFairy (“MLFairy Account”) and provide certain information about yourself as prompted by the Site registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. MLFairy may suspend or terminate your MLFairy Account in accordance with Section 10.
1.2 Account Responsibilities. You are responsible for maintaining the confidentiality of your MLFairy Account login information and are fully responsible for all activities that occur under your MLFairy Account. You agree to immediately notify MLFairy of any unauthorized use, or suspected unauthorized use of your MLFairy Account or any other breach of security. MLFairy cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
2. Site
2.1 Access Rights. Subject to the terms of this Agreement, MLFairy grants you a non-transferable, non-exclusive, license to access and use the Site and Services.
2.2 Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Services or any portion of Services, including the Site and/or SDK; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Services (including images, text, page layout or form) of MLFairy; (c) you shall not use any metatags or other “hidden text” using MLFairy name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not 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 Site (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site 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); (f) you will not access Services in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Services. Any future release, update or other addition to Services shall be subject to this Agreement. MLFairy, its suppliers and service providers reserve all rights not granted in this Agreement. Any unauthorized use of Services terminates the licenses granted by MLFairy pursuant to this Agreement
2.3 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Services. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
2.4 Modifications. MLFairy reserves the right, at any time, to modify, suspend, or discontinue the Site or Services or any part thereof with or without notice. You agree that MLFairy will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services or any part thereof.
2.5 Ownership. You acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Site and Services are owned by MLFairy or MLFairy’s licensors. The provision of the Site and Services does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. MLFairy and its suppliers reserve all rights not granted in this Agreement.
3. User Content
3.1 Content. You acknowledge that all images, data, scripts, text, information, and other content (collectively, “Content”) is the sole responsibility of the party from whom such Content originated. This means that you, and not Company, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Services or data collected by or related to the Services and your use thereof (“Data”) (collectively, “Your Content”), and that you and other users of the Services, and not MLFairy, are similarly responsible for all Content they Make Available through the Services (“User Content”).
3.2 No Obligation to Pre-Screen Content. You acknowledge that MLFairy has no obligation to pre-screen Content (including, but not limited to, User Content), although MLFairy reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into this Agreement, 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. In the event that MLFairy pre-screens, refuses or removes any Content, you acknowledge that MLFairy will do so for MLFairy’s benefit, not yours. Without limiting the foregoing, MLFairy shall have the right to remove any Content that violates this Agreement or is otherwise objectionable.
3.3 Storage. Unless expressly agreed to by MLFairy in writing elsewhere, MLFairy has no obligation to store any of Your Content that you Make Available on Services. MLFairy 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 Services. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that MLFairy retains the right to create reasonable limits on MLFairy’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by MLFairy in its sole discretion.
3.4 Feedback. If you provide MLFairy any feedback or suggestions regarding the Site or Services (“Feedback”), you hereby assign to MLFairy all rights in the Feedback and agree that MLFairy shall have the right to use such Feedback and related information in any manner it deems appropriate. MLFairy will treat any Feedback you provide to MLFairy as non-confidential and non-proprietary. You agree that you will not submit to MLFairy any information or ideas that you consider to be confidential or proprietary.
4. Acceptable Use Policy. The following sets forth MLFairy’s “Acceptable Use Policy”:
4.1 You agree not to use the Site or Services to: (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (d) interfere with or disrupt servers or networks connected to the Site or violate the regulations, policies or procedures of such networks; (e) attempt to gain unauthorized access to the Site or Services, other computer systems or networks connected to or used together with the Site, through password mining or other means; or (f) harass or interfere with another user’s use and enjoyment of the Site or Services.
4.2 We reserve the right (but have no obligation) to investigate and/or take appropriate action against you in our sole discretion (including terminating your MLFairy Account in accordance with Section 10 and/or reporting you to law enforcement authorities) if you violate the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person. In order to cooperate with legitimate governmental requests, subpoenas or court orders, or to protect our business and customers, we may access and disclose any information that we consider necessary or appropriate, including your MLFairy Account username and password, IP address and traffic information, and usage history.
5. Fees and Payments.
5.1 Fees and Payment Terms. You will pay MLFairy the then applicable fees for the Services you purchase, in accordance with the pricing provided to you prior to purchase, which may include the pricing available on our Site (the “Fees”). If your use of the Services exceeds the service capacity restrictions applicable to the Services you purchase, if any, or otherwise requires the payment of additional fees (per the terms of this Agreement), you will be billed for such usage and you agree to pay the additional fees in the manner described in this Agreement. MLFairy reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial service term or then‑current renewal term, upon thirty (30) days’ prior notice to you (which may be sent by email). If you believe that MLFairy has billed you incorrectly, you must contact MLFairy no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit, as determined by MLFairy. MLFairy may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by MLFairy thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. You shall be responsible for all taxes associated with Services other than U.S. taxes based on MLFairy’s net income.
5.2 Subscriptions. If you purchase a subscription, your subscription will continue indefinitely until terminated in accordance with this Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at MLFairy’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least (a) thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from MLFairy that your subscription will be automatically renewed, you will have thirty days from the date of the MLFairy notice), by logging into and going to the “Change/Cancel Membership” page of your “Account Settings” page. If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please contact MLFairy at 519 Acceptance Place, Ottawa Ontario, H9R5V2 Canada, or support@mlfairy.com, or log in and go to the “Change/Cancel Account” page on your “Account Settings” page. 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 term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize MLFairy to charge your payment provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if MLFairy does not receive payment from your payment provider, (i) you agree to pay all amounts due on your Account upon demand, and/or (ii) you agree that MLFairy may either terminate or suspend your subscription and continue to attempt to charge your payment provider 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).
6. Indemnity
You agree fully to indemnify and hold MLFairy and its affiliates, if any, and its/their respective directors, officers, employees, and agents, harmless, including costs and attorneys’ fees, from and against any claim or demand made by any third party due to or arising out of (i) your use of the Site or Services; (ii) your violation of this Agreement; and/or (iii) your Applications. MLFairy reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of MLFairy. MLFairy will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
7. Third Party Sites & Ads; Other Users
7.1 Third Party Sites & Ads. The Site and Services might contain links to third party websites, services, and advertisements for third parties (collectively, “Third Party Sites & Ads”). Such Third Party Sites & Ads are not under the control of MLFairy and MLFairy is not liable or responsible, in any way, for any Third Party Sites & Ads. MLFairy provides these Third Party Sites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations or warranties with respect to Third Party Sites & Ads. You use all Third Party Sites & Ads at your own risk, cost and effort. When you link to a Third Party Site or an ad provided by a third party, all of the applicable third party’s terms and policies apply, including the third party’s terms of use, privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Sites & Ads.
7.2 Release. You hereby fully release and forever discharge the MLFairy and its affiliates, if any, and its/their respective directors, officers, employees, and agents, from, and hereby fully waive and relinquish, each and every past, present and future disputes, claims, controversies, demands, rights, obligations, liabilities, actions and causes of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other Site users or Third Party Sites & Ads. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
8. Disclaimers
8.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF SERVICES (INCLUDING THE SDK) IS AT YOUR SOLE RISK, AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. MLFAIRY EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND WITH RESPECT TO THE SERVICES OR ANY APPLICATIONS DEVELOPED THROUGH THE SERVICES, 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 SITE OR SERVICES, INCLUDING THE SDK.
8.2 MLFAIRY MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF SERVICES WILL BE ACCURATE OR RELIABLE.
8.3 ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
8.4 THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. MLFAIRY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
8.5 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MLFAIRY OR THROUGH SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
8.6 FROM TIME TO TIME, MLFAIRY MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT MLFAIRY’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS
8.7 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
9. Limitation on Liability
IN NO EVENT SHALL WE (AND OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT(S) OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SITE OR SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE AND SERVICES ARE AT YOUR OWN DISCRETION, EFFORT, COST AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY AND ALL DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR (AND OUR SUPPLIERS’) LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY UNITED STATES DOLLARS ($50) OR (B) AMOUNTS YOU’VE PAID MLFAIRY IN THE PRIOR 12 MONTHS (IF ANY).
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
10. Term and Termination.
Subject to this Section, this Agreement will remain in full force and effect while you use the Site or Services (or as may be otherwise provided on an order form pursuant to which you order the Services). We may (a) suspend your rights to use the Site and/or Services (including your MLFairy Account) or (b) terminate this Agreement, at any time for any reason at our sole discretion, including for any use of the Site or Services in violation of this Agreement. Upon termination of this Agreement, your MLFairy Account and right to access and use the Site and Services will terminate immediately. MLFairy will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your MLFairy Account. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 2.2, 2.3, 2.4, and all Sections from and including Section 3 to and including Section 12. Further, upon any termination, MLFairy will make all Your Content available to you for electronic retrieval for a period of thirty (30) days, and thereafter MLFairy shall have the right to delete all stored Content.
11. Dispute Resolution.
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Company and limits the manner in which you can seek relief from us.
11.1 Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Services, including the SDK, or to any aspect of your relationship with MLFairy, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or MLFairy 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). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
IF YOU AGREE TO ARBITRATION WITH MLFAIRY, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST MLFAIRY ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST MLFAIRY IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
11.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to 9594426 Canada Inc, 519 Acceptance Place, Ottawa Ontario, H9R5V2 Canada. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, MLFairy will pay them for you. In addition, MLFairy will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, MLFairy will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
11.3 Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and MLFairy. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). 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 arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
11.4 Waiver of Jury Trial. YOU AND COMPANY 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 MLFairy are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 11.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
11.5 Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court as set forth in Section 12.2.
11.6 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 the following address: 9594426 Canada Inc, 519 Acceptance Place, Ottawa Ontario, H9R5V2 Canada, Attn: Customer Service, support@mlfairy.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your MLFairy username (if any), the email address you used to set up your MLFairy 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.
11.7 Severability. 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.
11.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with MLFairy.
11.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if MLFairy makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice to MLFairy.
12. General
12.1 Changes to Agreement. This Agreement is subject to occasional revision, and if we make any substantial changes, we may, if we so elect in our discretion, notify you by sending you an e-mail to the last e-mail address you provided to us (if any) and/or by posting notice of the changes on our Site. Any material changes to this agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site or Services. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of our Site or Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
12.2 Governing Law. This Agreement shall be governed by the laws of the State of Delaware without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. To the extent the parties are permitted under this Agreement to initiate litigation in a court, you agree to submit to the personal jurisdiction of the state courts and federal courts located within Albemarle County in the Commonwealth of Virginia for the purpose of litigating all such claims or disputes. Notwithstanding anything contained herein, we may seek injunctive or other equitable relief to protect MLFairy’s intellectual property rights in any court of competent jurisdiction.
12.3 Trademarks. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent of MLFairy or the consent of such third party, which may own the Marks.
12.4 Electronic Communications. The communications between you and MLFairy use electronic means, whether you visit Services or send MLFairy e-mails, or whether MLFairy posts notices on Services or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from MLFairy in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that MLFairy provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
12.5 Notice. Where MLFairy requires that you provide an e-mail address, you are responsible for providing MLFairy with your most current e-mail address. In the event that the last e-mail address you provided to MLFairy is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, MLFairy’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to MLFairy at the following address: 519 Acceptance Place, Ottawa Ontario, H9R5V2 Canada. Such notice shall be deemed given when received by MLFairy by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
12.6 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.7 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
12.8 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without MLFairy’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
12.9 Force Majeure. MLFairy 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, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
12.10 International Users. The Services can 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 MLFairy intends to announce such Services or Content in your country. The Services are controlled and offered by MLFairy from its facilities in the United States of America. MLFairy makes no representations that The Services are appropriate or available for use in other locations. Those who access or use The Services from other countries do so at their own volition and are responsible for compliance with local law.
12.11 Entire Agreement. This Agreement (which includes the Privacy Policy and any other rules posted on the Site) constitutes the entire agreement between you and us regarding the use of the Site and Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to MLFairy is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without MLFairy’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon permitted assignees.