LiveEnsure, Inc. (“FourSure,” “we,” “us,” “our”) provides its services (described below) to you through its FourSure mobile application (the “App”) and provides information about its services through its website located at https://www.foursure.com/ (the “Site” and, together with the App and such services, including any new features and applications, are referred to as the “Services”), subject to the following Terms of Service (as amended from time to time, the “Terms of Service”). We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will notify you, either through the Services user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST FOURSURE ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU WILL NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
1. Access and Use of the Service
a. Services Description: FourSure is a way to secure shared peer-to-peer content that allows users (“Authors”) to secure their shared content (“Content”) through encryption, multi-factor authentication, and real-time control. FourSure uses device information, time, behavioral, location and biometric factors to authenticate other users’ (“Recipients”) access to Content. The Services also permit Recipients to access Content by paying a fee. The Services do not allow you to create, edit, or share Content.
The Services are only a platform securing access to Content. Accordingly, any contract regarding access to Content is directly between the Author and Recipient. FourSure is not a party to the transaction. FourSure has no control over and does not guarantee: the existence, quality, safety, appropriateness, or legality of Content; the truth or accuracy of Content or an Author’s representations about Content; the ability of Authors to sell access to Content; the ability of Recipients to pay for Content; or that a user will actually complete a transaction.
c. Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify FourSure of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. FourSure will not be liable for any loss or damage arising from your failure to comply with this Section.
d. Modifications to Service: FourSure reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that FourSure will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
e. General Practices Regarding Usage and Storage: You acknowledge that FourSure may establish general practices and limits concerning usage of the Service, including without limitation the maximum period of time that data or Content will be retained by the Service and the maximum storage space that will be allotted on FourSure’s servers on your behalf. You agree that (a) you are responsible for storing your Content and (b) FourSure has no responsibility or liability for the deletion or failure to store any data or Content maintained or processed by the Service. You acknowledge that any failure by you to store your Content outside of the Service will prevent the Content from being protected through the Service and may prohibit Users or Recipients from accessing the Content. Foursure does not guarantee continued availability, access to, preservation or persistence of Content after initial sharing. You further agree not to attempt to circumvent or disable FourSure protections. You acknowledge that FourSure reserves the right, at any time in its sole discretion, to terminate accounts, to deactivate the restrictions and controls applicable to Content, to decline to apply restrictions and controls to Content or to remove restrictions and controls that have previously been applied to Content,. You further acknowledge that FourSure reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
As a User or Recipient you agree not to use, disclose, modify, or damage Content in violation of the restrictions and authentication controls imposed by an Author and administered by FourSure and you acknowledge that FourSure is not responsible for any Content. As an Author you use the Services at your own risk and acknowledge that (a) FourSure is not responsible for Recipients’ use or disclosure of Content, (b) the Services should not be used for emergency communications or to protect Content that is particularly sensitive, and (c) Content may be reproduced, used, or disclosed without your permission and in violation of the access and authentication restrictions you have put in place.
f. Mobile Services: The Service includes certain services that are available via a mobile device, including (i) the ability to upload Content to the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.
2. Conditions of Use
User Conduct: You are solely responsible for all Content that you upload, secure, or access via the Service. Your use of the Service will at all times comply with all applicable laws, including without limitation those relating to Content and privacy. The following are examples of the kind of Content and/or use that is illegal or prohibited by FourSure. FourSure reserves the right to investigate and take appropriate legal action against anyone who, in FourSure’s sole discretion, violates this provision, including without limitation, removing the offending Content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Service to:
a) secure or protect any Content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to use under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of FourSure, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose FourSure or its users to any harm or liability of any type;
b) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or
c) violate any applicable local, state, national or international law, or any regulations having the force of law;
d) harass or stalk any other users of the Service;
e) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
f) solicit personal information from anyone under the age of 18;
g) harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
h) advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
i) further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
j) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
3. Fees, Payments, and Taxes:
To the extent the Service or any portion thereof is made available for any fee, you will be required to select a payment plan and provide FourSure information regarding your credit card, mobile OS app store account, or other payment instrument. You represent and warrant to FourSure that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay FourSure the amount that is specified in the payment plan in accordance with the terms of such plan and this Terms of Service. Payments are nonrefundable and there are no refunds or credits. If you dispute any charges you must let FourSure know within sixty (60) days after the date that FourSure charges you. We reserve the right to change FourSure’s prices. If FourSure does change prices, FourSure will provide notice of the change on the Site, App, or in email to you, at FourSure’s option, at least 14 days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount.
If you are an Author, you are eligible to be paid during our next payment cycle once the unpaid earnings from your shared Content exceed our payout threshold. Please click here to learn more about our payment rates and threshold. Our payment rates and threshold are subject to change at any time in FourSure’s sole discretion. You can also click here to learn more about payments through FourSure in general. You agree to maintain a valid and supported payment account to receive payments. FourSure reserves the right to remit payments through any channel, including, without limitation, PayPal, checking accounts, and cryptocurrency and, in such case, you agree to provide FourSure with the information necessary to process such payments (such as account names, routing/account numbers, or wallet addresses). If we are prevented from paying you via the initially selected channel, you agree to provide the information necessary to pay you through an alternate channel. You acknowledge that the failure to maintain a valid payment account or provide the information necessary to remit payments by any means selected by FourSure within 14 days of FourSure’s request or the termination of your account may, in FourSure’s sole discretion, result in the forfeiture of any payments owed to you. You shall be responsible for all fees associated with remitting payments to you and all taxes associated with the Services (including sales tax) other than U.S. taxes based on FourSure’s net income.
Authors may receive a 1099-K when certain sales and transaction thresholds through third-party payment processors (e.g. Paypal) are met. For that reason you may be asked to provide a Taxpayer Identification Number (usually your social security number) to the payment processor. If you aren't a US resident, aren't paid in USD, or do not meet the threshold requirements set forth below, you may not receive a 1099-K.
Our third-party payment processors will mail out an IRS Form 1099-K to you if you receive in a calendar year at least $600 USD in gross payments from sharing Content. If you believe you should have received a 1099-K and have not received one, please consider contacting the payment processor to find out if it has prepared one for you.
Authors are responsible for reporting any applicable income and expenses on tax returns regardless whether IRS Form 1099 is received by the Author.
Marketplace Facilitator is defined as a marketplace that contracts with third party sellers to promote their sale of physical property, digital goods, and services through the marketplace. FourSure uses the platforms of third parties (such as Apple and Google) for its sales, and such third party platform providers (or FourSure) might be deemed a marketplace facilitator for third party sales facilitated through its platform. FourSure retains the right for itself and its third party platform providers (i.e., Apple and Google) to collect sales tax on such sales and remit them to the applicable taxing authority; however, FourSure does not undertake the obligation to do so and nothing in this paragraph shall be construed to relieve the Authors from their own sales tax collection obligations. Each Author shall remain liable for sales tax on its sales in the jurisdictions where FourSure does not collect sales tax and agrees to comply with all required sales tax rules in all relevant jurisdictions. Each Author shall remain liable for sales tax on its sales in the jurisdictions where FourSure or the third party platform providers do not collect sales tax and each Author agrees to comply with all required sales tax rules in all relevant jurisdictions. Each Author shall reimburse FourSure for any damages resulting from his, her or its failure to collect and remit sales tax in any jurisdiction where such Author is required to do so by law.
This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for tax or accounting advice. Please consult with your own tax advisor.
4. Recurring Subscriptions
If you select a Service with an automatic renewal feature (“Recurring Subscription”), you authorize FourSure to maintain your account information and charge that account automatically upon the renewal of the Service you choose with no further action required by you. You acknowledge that in order to cancel charges for the Service you must cancel your subscription through your mobile OS app store provider. In the event that FourSure is unable to charge your account as authorized by you when you enrolled in a Recurring Subscription, FourSure, may, in its sole discretion: (i) bill you for your Service and suspend your access to the Service until payment is received, and/or (ii) seek to update your account information through third party sources (i.e., your bank or a payment processor) to continue charging your account as authorized by you.
FourSure may change the price for Recurring Subscriptions from time to time and will communicate any price changes to you in advance and, if applicable, how to accept those changes. Price changes for Recurring Subscriptions will take effect at the start of the next subscription period following the date of the price change. As permitted by local law, you accept the new price by continuing to use your Recurring Subscription after the price change takes effect. If you do not agree with the price changes, you have the right to reject the change by cancelling your Recurring Subscription before the price change goes into effect. Please therefore make sure you read any such notification of price changes carefully.
Payments are nonrefundable and there are no refunds or credits for partially used periods. You may cancel a Recurring Subscription at any time, but if you cancel your subscription before the end of the current subscription period, we will not refund any subscription fees already paid to us. Following any cancellation, however, you will continue to have access to the service through the end of your current subscription period. At any time, and for any reason, we may provide a refund, discount, or other consideration to some or all of our users ("credits"). The amount and form of such credits, and the decision to provide them, are at our sole and absolute discretion. The provision of credits in one instance does not entitle you to credits in the future for similar instances, nor does it obligate us to provide credits in the future, under any circumstance.
5. Special Notice for International Use; Export Controls:
Software (defined below) available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.
6. Third Party Distribution Channels
FourSure offers Software applications that may be made available through the Apple App Store, the Google Play Store or other distribution channels (“Distribution Channels”). If you obtain such Software through a Distribution Channel, you may be subject to additional terms of the Distribution Channel. These Terms of Service are between you and us only, and not with the Distribution Channel. To the extent that you utilize any other third-party products and services in connection with your use of our Services, you agree to comply with all applicable terms of any agreement for such third-party products and services.
With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
a. FourSure and you acknowledge that these Terms of Service are conducted between FourSure and you only, and not with Apple Inc. (“Apple”), and that as between FourSure and Apple, FourSure, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
b. You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service Terms of Service.
c. Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
d. Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
e. Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be FourSure’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
f. FourSure and you acknowledge that FourSure, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to:
(i) product liability claims;
(ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and
(iii) claims arising under consumer protection or similar legislation.
g. In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between FourSure and Apple, FourSure, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
h. You represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
i. If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to FourSure as follows:
FourSure and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third party beneficiary thereof. If the App is removed from a Distribution Channel (such as if the App is removed from the Apple App Store), FourSure may not be able to provide the Services. Accordingly, you acknowledge that if for any reason the App is removed from the Distribution Channel you used to access the App then FourSure will no longer be required to provide you with the Services.
7. Intellectual Property Rights
Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by FourSure, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own Content that you legally upload to or secure through the Service. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by FourSure from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith are the property of FourSure, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by FourSure.
The FourSure name and logos are trademarks and service marks of FourSure (collectively the “FourSure Trademarks”). Other FourSure, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to FourSure. Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of FourSure Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of FourSure Trademarks will inure to our exclusive benefit.
8. Third Party Material:
Under no circumstances will FourSure be liable in any way for any content or materials of any third parties (including Content of users, including, but not limited to, for any errors or omissions in any content or materials, or for any loss or damage of any kind incurred as a result of the use of any such content or materials. You acknowledge that FourSure does not pre-screen Content, but that FourSure and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is accessible via the Service. Without limiting the foregoing, FourSure and its designees will have the right to remove any Content that violates these Terms of Service or is deemed by FourSure, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
9. Content Transmitted Through the Service:
With respect to the Content you upload through the Service or share with Users or Recipients, you represent and warrant that you own all right, title and interest in and to such Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading any Content you hereby grant and will grant FourSure and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your Content in connection with the operation of the Service in any form, medium or technology now known or later developed.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to FourSure are non-confidential and FourSure will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that FourSure may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of FourSure, its users and the public. You understand that the technical processing and transmission of the Service, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
10. Copyright Complaints:
a. FourSure respects the intellectual property of others, and we ask our users
to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify FourSure of your infringement claim in accordance with the procedure set forth below.
FourSure will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be sent to FourSure’s Copyright Agent by contacting us (Subject line: “DMCA Takedown Request”). You can also contact us by mail at:.10343 Federal Blvd. J409, Westminster CO 80260. To be effective, the notification must be in writing and contain the following information:
(i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
(ii) a description of the copyrighted work or other intellectual property that you claim has been infringed;
(iii) a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service;
(iv) your address, telephone number, and email address;
(v)a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
(vi) a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
b. Counter-Notice: If you believe your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use your Content, you may send a written counter-notice containing the following information to the Copyright Agent:
(i)your physical or electronic signature;
(ii)identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;
(iii)a statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and
(iv)your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within District of Colorado and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, FourSure will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content Author, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
c. Repeat Infringer Policy: In accordance with the DMCA and other applicable law, FourSure has adopted a policy of terminating, in appropriate circumstances and at FourSure's sole discretion, users who are deemed to be repeat infringers. FourSure may also at its sole discretion limit access to the Service and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
11. Third Party Websites
The Service may provide, or Authors may include in Content, links or other access to other sites and resources on the Internet. FourSure has no control over such sites and resources and FourSure is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that FourSure will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that FourSure is not liable for any loss or claim that you may have against any such third party.
12. Indemnity and Release
You agree to release, indemnify and hold FourSure and its affiliates and their officers, employees, directors and agents (collectively, “Indemnitees”) harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service or Content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages or expenses incurred as a result of any action or inaction of such Indemnitee. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
13. Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. FOURSURE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
FOURSURE MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (IV) THE SERVICE WILL BE AVAILABLE IN YOUR LOCATION, OR (V) YOUR CONTENT WILL NOT BE ACCESSED OR USED WITHOUT YOUR PERMISSION.
14. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT FOURSURE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF FOURSURE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM:
a. THE USE OR THE INABILITY TO USE THE SERVICE;
b. THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE;
c. UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA;
d. STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR
e. ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL FOURSURE’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID FOURSURE IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
15. Dispute Resolution By Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
a) Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and FourSure, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and FourSure are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
b) Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND FOURSURE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND FOURSURE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
c) Pre-Arbitration Dispute Resolution
FourSure is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at https://www.FourSure.com/contact.html. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to FourSure should be sent to 10343 Federal Blvd. J409, Westminster CO 80260 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If FourSure and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or FourSure may commence an arbitration proceeding.. During the arbitration, the amount of any settlement offer made by FourSure or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or FourSure is entitled.
d) Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/ as may be updated from time to time. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless FourSure and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, FourSure agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
e) Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, FourSure will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, FourSure will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, FourSure will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms of Service will continue to apply.
h) Future Changes to Arbitration Agreement
Notwithstanding any provision in this Terms of Service to the contrary, FourSure agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending FourSure written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
You agree that FourSure, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any Content within the Service, for any reason, including, without limitation, for lack of use or if FourSure believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. FourSure may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that FourSure may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that FourSure will not be liable to you or any third party for any termination of your access to the Service.
17. User Disputes
You agree that you are solely responsible for your interactions with any other user in connection with the Service and FourSure will have no liability or responsibility with respect thereto. FourSure reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
These Terms of Service constitute the entire agreement between you and FourSure and govern your use of the Service, superseding any prior agreements between you and FourSure with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms of Service will be governed by the laws of the State of Colorado without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and FourSure agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Denver County, Colorado. The failure of FourSure to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Terms of Service without the prior written consent of FourSure, but FourSure may assign or transfer this Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.
Notice for California Users
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at FourSure, Inc., 10343 Federal Blvd J409, Westminster, CO 80260 and 650-351-7873
Questions? Concerns? Suggestions? Please contact us to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service or the Service.