THESE TERMS AND CONDITIONS (THE “TERMS”) ARE A LEGAL CONTRACT BETWEEN YOU AND tripFiles® . THE TERMS EXPLAIN HOW YOU ARE PERMITTED TO USE THE WEBSITE LOCATED AT THE URL: WWW.TRIPFILES.COM AS WELL AS ALL ASSOCIATED SITES LINKED TO WWW.TRIPFILES.COM BY tripFiles® , ITS SUBSIDIARIES AND AFFILIATED COMPANIES (COLLECTIVELY, THE “SITE”). UNLESS OTHERWISE SPECIFICED, ALL REFERENCES TO “SITE” INCLUDE THE CONTENT, SERVICES AVAILABLE THROUGH THIS SITE (THE “SERVICES”) AND ANY SOFTWARE THAT tripFiles® PROVIDES TO YOU THAT ALLOWS YOU TO ACCESS THE SITE FROM A MOBILE DEVICE (A “MOBILE APPLICATION”). BY USING THIS SITE, YOU ARE AGREEING TO ALL THE TERMS; IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THIS SITE OR ANY INFORMATION CONTAINED ON THIS SITE.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH tripFiles® . YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
tripFiles® may make changes to the content and Services offered on the Site at any time. tripFiles® can change, update, or add or remove provisions of these Terms, at any time by posting the updated Terms on this Site and by emailing you at the email address you have provided. By using this Site after tripFiles® has updated the Terms, you are agreeing to all the updated Terms; if you do not agree with any of the updated Terms, you must stop using the Site.
By using this Site, you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old (a “Minor”), that you are using the Site with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to use the Site and agree to its Terms. If you are a parent or legal guardian of a Minor, you hereby agree to bind the Minor to these Terms and to fully indemnify and hold harmless tripFiles® if the Minor breaches any of these Terms. If you are not at least 13 years old, you may not use the Site at any time or in any manner or submit any information to tripFiles® or the Site.
tripFiles® provides content through the Site that is copyrighted and/or trademarked work of tripFiles® or tripFiles® ’ third-party licensors and suppliers or other users of the Site (collectively, the “Materials”). Materials may include logos, graphics, video, images, software and other content.
Subject to the terms and conditions of these Terms, and your compliance with these Terms, tripFiles® hereby grants you a limited, personal, non-exclusive and non-transferable license to use and to display the Materials and to use this Site solely for your personal use. Except for the foregoing license, you have no other rights in the Site or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Site or Materials in any manner.
If you breach any of these Terms, the above license will terminate automatically and you must immediately destroy any downloaded or printed Materials.
tripFiles® makes available Mobile Applications to access the Site via a mobile device. To use the Mobile Application you must have a mobile device that is compatible with the mobile service. tripFiles® does not warrant that the Mobile Application will be compatible with your mobile device. tripFiles® hereby grants to you a non-exclusive, non-transferable, revocable license to use an object code copy of the Mobile Application for one registered account on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Application, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Application to any third-party or use the Mobile Application to provide time sharing or similar services for any third-party; (iii) make any copies of the Mobile Application; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Application, features that prevent or restrict use or copying of any content accessible through the Mobile Application, or features that enforce limitations on use of the Mobile Application; or (v) delete the copyright and other proprietary rights notices on the Mobile Application. You acknowledge that tripFiles® may from time to time issue upgraded versions of the Mobile Application, and may automatically electronically upgrade the version of the Mobile Application that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that these Terms will apply to all such upgrades. The foregoing license grant is not a sale of the Mobile Application or any copy thereof, and tripFiles® and its third-party licensors or suppliers retain all right, title, and interest in and to the Mobile Application (and any copy of the Mobile Application). Standard carrier data charges may apply to your use of the Mobile Application.
The following additional terms and conditions apply with respect to any Mobile Application that tripFiles® provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”):
You acknowledge that these Terms are between you and tripFiles® only, and not with Apple, Inc. (“Apple”).
Your use of tripFiles® ’ iOS App must comply with Apple’s then-current App Store Terms of Service.
tripFiles® , and not Apple, is solely responsible for our iOS App and the Services and Content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to our iOS App.
You agree that tripFiles® , and not Apple, is responsible for addressing any claims by you or any third-party relating to our iOS App or your possession and/or use of our iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to us as provider of the iOS App.
You agree that tripFiles® , and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to our iOS App or your possession and use of our iOS App.
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.
You agree to comply with all applicable third-party terms of agreement when using our iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as they relate to your license of tripFiles® ’ iOS App. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to your license of the iOS App as a third-party beneficiary thereof.
The following additional terms and conditions apply with respect to any Mobile Application that tripFiles® provides to you designed for use on an Android-powered mobile device (an “Android App”):
You acknowledge that these Terms are between you and tripFiles® only, and not with Google, Inc. (“Google”).
Your use of tripFiles® ’ Android App must comply with Google’s then-current Android Market Terms of Service.
Google is only a provider of the Android Market where you obtained the Android App. tripFiles® , and not Google, are solely responsible for tripFiles® ’ Android App and the Services and Content available thereon. Google has no obligation or liability to you with respect to tripFiles® ’ Android App or these Terms.
You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to tripFiles® ’ Android App.
The Services include and make use of certain functionality and services provided by third-parties that allow tripFiles® to include maps, geocoding, places and other Content from Google, Inc. (“Google”) as part of the Services (the “Geo-Location Services”). Your use of the Geo-Location Services is subject to Google’s then current Terms of Use for Google Maps/Google Earth (http://www.google.com/intl/en_us/help/terms_maps.html) and by using the Geo-Location Services, you are agreeing to be bound by Google’s Terms of Use.
You can simply view the Site. You need not register with tripFiles® to simply visit and view the Site.
However, in order to access certain password-restricted areas of the Site and to use certain Services and Materials offered on and through the Site (such as to save and post photos, videos, notes, comments and reviews or create a trip), you must register with tripFiles® for an account and create a password.
If you desire to register for an account with tripFiles® , you must submit the following information through the account registration page on the Site: name, e-mail address and password. You will also have the option to provide a profile photo; however, one is not required to register for the Site. Once you have submitted your account registration information, tripFiles® administrator shall have the right to approve or reject the requested registration, in tripFiles® administrator’s sole discretion.
Currently, tripFiles® also provides you with the ability to register for an account on the Site using your existing account and log-in credentials through the following Third-Party Sites (as defined below), which may change from time to time: Facebook (each, a “Third-Party Site Password”).
You are responsible for maintaining the confidentiality of your password and any Third-Party Site Password (collectively, “Passwords”), and you are responsible for all activities that occur using your Passwords. You agree not to share your Passwords, let others access or use your Passwords or do anything else that might jeopardize the security of your Passwords. You agree to notify tripFiles® if any of your Passwords on this Site are lost, stolen, if you are aware of any unauthorized use of your Passwords on this Site or if you know of any other breach of security in relation to this Site.
All the information that you provide when registering for an account and otherwise through the Site must be accurate, complete and up to date. You may change, correct or remove any information from your account by either logging into your account directly and making the desired changes, except that you may not change your e-mail address at this time.
You acknowledge that tripFiles® may suspend or terminate your account and your rights under these Terms for extended non-use or inactivity.
You must have a broadband Internet connection and the browser and media players set forth on the System Requirements page to view the Site and make use of certain Services and Materials.
Please review tripFiles® Privacy Policy (the “Privacy Policy”) which explains how we use information that you submit to tripFiles® .
The use of Geo-Location Services is subject to the terms of the then current Google privacy policy (http://www.google.com/privacy.html).
You are responsible for the information, opinions, messages, comments, photos, videos, graphics, sounds and other content or material that you submit, upload, post or otherwise make available on or through the Site (each a “Submission”). You may not upload, post or otherwise make available on this Site any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right owned by a third-party, and the burden of determining whether any material is protected by any such right is on you. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, violation of contract, privacy or publicity rights or any other harm resulting from any Submission that you make. You have full responsibility for each Submission you make, including its legality, reliability and appropriateness.
Unless otherwise explicitly stated herein or in tripFiles® Privacy Policy, you agree that any Submission provided by you in connection with this Site is provided on a non-proprietary and non-confidential basis. You hereby grant to tripFiles® a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license (including the right to sublicense through multiple tiers) to use, reproduce, process, adapt, publicly perform, publicly display, modify, prepare derivative works from, publish, transmit and distribute each of your Submissions, or any portion thereof, in any form, medium or distribution method now known or hereafter existing, known or developed, and authorize others to use the Submissions. We may modify or adapt your Submissions in order to transmit, display or distribute them over computer networks and in various media and/or make changes to the Submissions as necessary to conform and adapt them to any requirements or limitations of any networks, devices, services or media. tripFiles® agrees to use any personally identifiable information contained in any of your Submissions in accordance with tripFiles® ’ Privacy Policy.
You agree to pay for all royalties, fees, damages and any other monies owing any person by reason of any Submissions posted by you to or through this Site.
When you provide Submissions you agree that those Submissions shall not be in violation of the “Unauthorized Activities” paragraph below. Those prohibitions do not require tripFiles® to monitor, police or remove any Submissions or other information submitted by you or any other user.
When using this Site and/or the services, you agree not to:
Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
Use racially, ethnically, or otherwise offensive language.
Discuss or incite illegal activity.
Use explicit/obscene language or solicit/post sexually explicit images (actual or simulated).
Post anything that exploits children or minors or that depicts cruelty to animals.
Post any copyrighted or trademarked materials without the express permission from the owner.
Disseminate any unsolicited or unauthorized advertising, promotional materials, ‘junk mail’, ‘spam’, ‘chain letters’, ‘pyramid schemes’, or any other form of such solicitation.
Use any robot, spider, scraper or other automated means to access the Site.
Take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
Alter the opinions or comments posted by others on this Site.
Post anything contrary to our public image, goodwill or reputation.
This list of prohibitions provides examples and is not complete or exclusive. tripFiles® reserves the right to (a) terminate access to your account, your ability to post to this Site and (b) refuse, delete or remove any Submissions; with or without cause and with or without notice, for any reason or no reason, or for any action that tripFiles® determines is inappropriate or disruptive to this Site or to any other user of this Site. tripFiles® may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at tripFiles® ’ discretion, tripFiles® will cooperate with law enforcement agencies in any investigation of alleged illegal activity on this Site or on the Internet.
Unauthorized use of any Materials or Third-Party Content contained on this Site may violate certain laws and regulations.
You agree to indemnify and hold tripFiles® and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees and costs of defense) tripFiles® or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third-party that your use of this Site or the use of this Site by any person using your user name and/or password (including without limitation, your participation in the posting areas or, your Submissions) violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third-party.
tripFiles® is a registered trademark of tripFiles® in the United States. Other trademarks, names and logos on this Site are the property of their respective owners.
Unless otherwise specified in these Terms, all information and screens appearing on this Site, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of tripFiles® , Copyright © 2014 tripFiles® . All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
The Mobile Application software that is provided to you through the Site and Services and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, if You are a government entity, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
tripFiles® respects the intellectual property rights of others, and we ask you to do the same. tripFiles® may, in appropriate circumstances and at our discretion, terminate service and/or access to this Site for users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on our Site, please provide tripFiles® ’ designated agent the following information:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site.
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at the Site, and information reasonably sufficient to permit tripFiles® to locate the material.
Information reasonably sufficient to permit tripFiles® to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
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 and/or trademark owner, its agent, or the law.
A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
tripFiles® ’ agent for notice of claims of copyright or trademark infringement on this Site can be reached as follows:
Stephan Medina
tripFiles® LLC
133 Sevilla Ave
Coral Gables, FL 33134
smedina@tangerinepm.com
305-755-3990
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Submitting a DMCA Counter-Notification
We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a valid DMCA take-down notice that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to tripFiles® designated agent that includes all of the following information:
Termination of Repeat Infringers
tripFiles® reserves the right, in its sole discretion, to terminate the account or access of any user of our web site and/or service who is the subject of repeated DMCA or other infringement notifications.
Your use of this Site is at your own risk. The Materials have not been verified or authenticated in whole or in part by tripFiles® , and they may include inaccuracies or typographical or other errors. tripFiles® does not warrant the accuracy of timeliness of the Materials contained on this Site. tripFiles® has no liability for any errors or omissions in the Materials, whether provided by tripFiles® , our licensors or suppliers or other users.
tripFiles® , FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THIS SITE, THE SERVICES, OR ANY MATERIALS RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE, INCLUDING WITHOUT LIMITATION THE MATERIALS. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS SITE, MATERIALS, AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. tripFiles® DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.
tripFiles® SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THIS SITE. IN NO EVENT SHALL tripFiles® BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF tripFiles® KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE.
tripFiles® controls and operates this Site from its headquarters in the United States of America and the Materials may not be appropriate or available for use in other locations. If you use this Site outside the United States of America, you are responsible for following applicable local laws.
If you send or transmit any communications, comments, questions, suggestions, or related materials to tripFiles® , whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Site or Materials, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and tripFiles® is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that tripFiles® is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
Most customer concerns can be resolved quickly and to a customer’s satisfaction by contacting us at support@tripFiles.com. This Provision facilitates the prompt and efficient resolution of any disputes that may arise between you and tripFiles® . Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.
Please read this Provision carefully. It provides that all Disputes between you and tripFiles® shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees).
For the purpose of this Provision, “tripFiles® ” means tripFiles® and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and tripFiles® regarding any aspect of your relationship with tripFiles® , whether based in contract, statute, regulation, ordinance, infringement, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as tripFiles® ’ licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give tripFiles® an opportunity to resolve the Dispute. You must commence this process by mailing written notification to tripFiles® at tripFiles® , Attn: Stephan Medina, 1406 Cortez Lane, Atlanta, GA 30319. That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If tripFiles® does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or tripFiles® may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Provision by mailing written notification to tripFiles® at tripFiles® , Attn: Stephan Medina, tripFiles® LLC, 133 Sevilla Ave., Coral Gables FL 33134. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with tripFiles® through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with tripFiles® . Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
Arbitration Procedures
If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or tripFiles® may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision and the scope of discovery.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because the Site and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Discovery – The parties agree that the Arbitrator will allow only discovery absolutely necessary to resolve the dispute. The parties agree that the scope of discovery shall be the minimum necessary to resolve the dispute.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or tripFiles® may initiate arbitration in either Miami-Dade County, Florida or the federal judicial district that includes your billing address. In the event that you select the federal judicial district that includes your billing address, tripFiles® may transfer the arbitration to Miami-Dade County, Florida in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.
Payment of Arbitration Fees and Costs – tripFiles® will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with tripFiles® as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and tripFiles® specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Site can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
Jury Waiver
You understand and agree that by entering into this Agreement you and tripFiles® are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and tripFiles® might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
Severability
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.
Continuation
This Provision shall survive the termination of your service with tripFiles® or its affiliates. Notwithstanding any provision in this Agreement to the contrary, we agree that if tripFiles® makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require tripFiles® to adhere to the language in this Provision if a dispute between us arises.
tripFiles® prefers to advise you if we feel you are not complying with these Terms and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by tripFiles® , may result in immediate termination of your access to this Site without prior notice to you. The Federal Arbitration Act, Florida state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. Except for Disputes subject to arbitration as described above, any disputes relating to these Terms or this Site will be heard in the courts located in Miami-Dade County, Florida and Florida’s law shall apply without regard to any laws or decisions regarding conflicts-of-law. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. tripFiles® ’ failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and tripFiles® and supersede all prior or contemporaneous negotiations, discussions or agreements between you and tripFiles® about this Site. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: This Site and Service are provided by tripFiles® , LLC. If you have a question or complaint regarding the Site or Service, please contact Customer Service at support@tripFiles.com. You may also contact us by writing at tripFiles® LLC, Attn: Stephan Medina, 133 Sevilla Ave., Coral Gables FL 33134. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
If you have any questions about these Terms or otherwise need to contact tripFiles® for any reason, you can reach us at support@tripFiles.com.