CATCH TERMS OF SERVICE
Last Modified: March 1, 2021
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION PROVISION IN SECTION 12.2 (THE “ARBITRATION AGREEMENT”) AND CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 12.3 (THE “CLASS ACTION/JURY TRIAL WAIVER”) THAT REQUIRE, UNLESS YOU OPT OUT PURSUANT TO THE INSTRUCTIONS IN SECTION 12.2, THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES BETWEEN YOU AND CATCH, INCLUDING ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE YOU AGREED TO THESE TERMS. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU EXPRESSLY WAIVE YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS, AS WELL AS YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTION OR PROCEEDING.
1. Our Service
1.1 Our Service
Subject to the terms of this Agreement, and as part of our Service, we may provide to you Automated Clearing House payment services on Merchants’ websites. As part of such payment services, all funds transfer services are provided by your U.S. state or federally-chartered bank (“Bank”), as Catch does not receive, hold, or transmit funds. A “Merchant” means a merchant that has been authorized by us to accept the Service as a payment method for purchases of goods and services, subject to the terms of this Agreement.
This is a contract between you and Catch. You must read and agree to these terms before using the Service. If you do not agree, you may not use the Service. You may use the Service only if you can form a binding contract with Catch, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 18 is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service by Catch.
1.3 User Verification
Before you may use the Service with Merchants, we must verify the required identifying information you provide to us (e.g., your mobile phone number, bank account information, name, and email address). If we are not able to link your bank account at the time of your initial purchase on the Service, you may pay for such purchase using your credit card or debit card. If applicable, you hereby authorize us to make and then promptly reverse a nominal deposit to your Payment Method (as defined below) solely for purposes of verifying your Payment Method.
1.4 User Accounts
Your account on the Service (your “User Account”) gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. If you open a User Account on behalf of a company, organization, or other entity, then (i) “you” includes you and that entity, and (ii) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf.
You may never use another User’s User Account without permission. When creating your User Account, you must provide accurate and complete information, such as your mobile phone number, and you must keep this information up to date. You are solely responsible for the activity that occurs on your User Account, and you must keep your User Account secure. You must notify Catch immediately of any breach of security or unauthorized use of your User Account. Catch will not be liable for any losses caused by any unauthorized use of your User Account.
You may control your User profile and how you interact with the Service by changing the settings in your My Account page. By providing Catch your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences in your My Account page. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
You may link or unlink your U.S. state or federally-chartered bank account (“Payment Method”) to your User Account. You authorize us (through our Bank partner) to make a payment to Merchant that is funded by your Payment Method, you hereby authorize your Bank to initiate an electronic transfer from your Payment Method in the amount you specify. You are solely responsible for complying with any and all terms set by your Bank with respect to your Payment Method, including without limitation any fee terms, such as insufficient fund or overdraft fees. You further acknowledge that normal Automated Clearing House clearing times will apply to all transactions through the Service, and Merchants may wait until they have received your funds before fulfilling your purchases.
In connection with all transactions through the Service, you are responsible for both (i) providing accurate, complete, and current information to us and (ii) maintaining sufficient funds in your Payment Method, and you acknowledge and agree that otherwise, we will not be able to provide the Service to you and Merchants will not be able to accept your payments through the Service. You agree to pay all charges incurred by all individuals who use your Payment Method in connection with transactions through the Service, at the prices in effect when such charges are incurred. You will pay all applicable taxes, if any, relating to any such transaction.
We may review payments you make using the Service in our sole discretion. When we identify a potentially high-risk payment to a Merchant, we will suspend and review the transaction more closely before allowing it to proceed. When this happens, we will place a hold on the transaction and notify the Merchant to delay shipping of the item or provision of the service. If we clear the transaction, we will notify the Merchant and direct them to ship the item or provide the service, as applicable. If we don’t clear the transaction, we will cancel it and return the applicable funds to your Payment Method, unless we are legally required to take other action.
Merchants may offer discounts and credits (“Credits”) to you if you use the Service to pay for their goods or services; provided that the participating Merchants will be solely and exclusively responsible for honoring any and all Credits promised to you. From time to time, we may offer Credits to you in our sole discretion. You may only redeem Credits when (i) you make a subsequent purchase from the Merchant that offered the Credit, (ii) use Catch to pay for such subsequent purchase, and (iii) complete such purchase in advance of the Credit’s expiration date as set forth in your User Account. Participating Merchants and offer terms may be changed from time to time without notice. Catch will post Credits that you earn to your User Account based on the information we receive from participating Merchants.
Credits are not owned by you, and you have no rights to any Credits until they are redeemed at a particular Merchant. Credits have no monetary value and if the Service is cancelled or discontinued, the Credits immediately expire. You acknowledge and agree that regardless of terminology used, Credits are also subject to the terms of this Agreement and any additional Merchant terms. You acknowledge that you do not own the User Account you use to access the Service, nor do you possess any rights of access or rights to data stored by or on behalf of Catch on Catch servers, including without limitation any data representing or embodying any or all of your Credits. You agree that Merchants may modify and/or eliminate Credits in their sole discretion, in any general or specific case, and that Catch will have no liability to you based on any such modifications or elimination. All data on Catch’s servers are subject to deletion, alteration or transfer.
Without limiting the generality of the foregoing, you may transfer any Credits (subject to the foregoing limitations) in your User Account to other individuals (your “Friends”) for their personal, non-commercial use. A Friend must create his or her own User Account and link his or her own Payment Method in order to use such transferred Credits. If your Friend claims such transferred Credits, you will no longer have rights to use those Credits. So long as your Friend fails to claim such transferred Credits, you will continue to have rights to use those Credits, subject to the terms of this Agreement. You acknowledge and agree that subject to Section 2, if and after you claim transferred Credits, you may receive marketing emails from the Merchant providing such Credits.
You may earn Credits if you refer Friends to use Catch; provided that such Friends: (a) must create a new User Account via the unique referral link associated with your User Account, (b) may not have previously created a User Account, and (c) must complete and pay in full for one (1) purchase on the Service. Subject to the foregoing, and if applicable, we will post Credits that you earn from such referrals to your User Account.
1.7 Refunds and Reversals
When you buy something from a Merchant using the Service and the transaction is ultimately refunded in whole or in part, the applicable funds will be refunded to your Payment Method. You hereby authorize us and your Bank to credit your Payment Method to complete such refund transaction. If you receive a refund for a qualifying purchase for which you have already received Credits, we reserve the right to remove all related Credits from your User Account, or if such Credits are no longer available in your User Account, deduct the corresponding amount from the refund to your Payment Method.
We may invalidate and reverse payments through the Service if, among other reasons: (i) we sent the payment in error; (ii) the funding transaction is declined or reversed by you, your Bank, or the applicable Merchant; (iii) the payment was unauthorized or insufficiently funded; (iv) we decided a dispute against you, in our sole discretion; or (v) if the payment was for Restricted Goods or Services. In the event of such invalidation or reversal, you may be liable to us for the full amount of the payment, and we may recover the amount of the payment plus any fees from you, subject to applicable law. You hereby authorize us to recover any such amounts due by initiating an electronic transfer from your Payment Method or engaging in collection efforts. If you dispute a payment through the Service, you must notify us in writing at email@example.com immediately, and if you fail to do so, we may recover the amount of the reversed payment from you. Upon our receipt of the foregoing notice, we will initiate an investigation into the applicable transaction and, in our sole discretion and subject to your cooperation, we may provide you with a full refund. Notwithstanding anything to the contrary herein, your eligibility for refunds and reversals are subject to each Merchant’s terms and conditions.
1.8 Risk of Loss
Catch does not sell products; Merchants do. All products that may be purchased via the Service are transported and delivered to you by a Merchant or independent third party not affiliated with, or controlled by, Catch. Title to and risk of loss for such products passes to you in accordance with your separate agreements with the applicable Merchant. If you have any issue with a product, please reach out to the applicable Merchant directly.
1.9 Service Rules
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Catch servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Catch grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Service 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); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
1.10 Restricted Goods and Services
You will not, without Catch’s prior written consent, use the Service to purchase Restricted Goods or Services, as defined below. If you use the Service to purchase any goods or services which Catch considers, in its reasonable discretion, to be dangerous, inappropriate or high risk, Catch reserves the right to prohibit the use of the Service to purchase such goods or services. “Restricted Goods or Services” means for example, but not in limitation, (i) goods or services that are illegal under applicable law (i.e., goods or services that infringe third-party intellectual property, including without limitation counterfeit goods and pirated content); (ii) inherently dangerous goods, including without limitation illegal drugs or derivatives thereof, cannabidiol products and nutraceuticals, psychoactive substances, equipment to facilitate drug use, weapons, ammunition, explosive materials and fireworks, instructions for making explosives or harmful products, or tobacco products; (iii) pornographic materials; (iv) products that enable dishonest behavior, including without limitation hacking software or instructions, fake documents, and academic cheating products; and (v) without limiting the foregoing, any goods or services which are required by law to be sold to customers over 18 years of age).
1.11 Changes to the Service
We may, without prior notice and in our sole discretion, add new services; change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. In the event that we suspend or terminate your User Account for your breach of this Agreement, you acknowledge and agree that you will receive no refund or exchange for any Credits or anything else. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
1.12 Service Location
The Service is controlled and operated from facilities in the United States. Catch makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
2. Third-Party Links and Information
3. Our Proprietary Rights
3.1 Limited License
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service for your personal, noncommercial use only and as permitted by the features of the Service. Catch reserves all rights not expressly granted herein in the Service and the Catch Content (as defined below). Catch may terminate this license at any time for any reason or no reason.
3.2 Our Ownership
The Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, and copyrights (the “Catch Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Catch and its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Catch Content. Use of the Catch Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Catch under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Catch does not waive any rights to use similar or related ideas previously known to Catch, or developed by its employees, or obtained from sources other than you.
4. Your Proprietary Rights
By submitting or otherwise making available any data (“User Data”) through the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Catch a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, distribute, syndicate, and make derivative works of all such User Data, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and Catch’s (and its successors’ and affiliates’) business.
5. Two-Factor Authentication and Autodialed Calls / Texts
Please note that by creating an account and providing your phone number, you consent to receive autodialed or prerecorded calls and text messages from Catch at the telephone number(s) provided by you to Catch. We may place such calls or texts to (i) help keep your User Account secure through the use of two-factor authentication; (ii) help you access your User Account when you’ve forgotten your password; or (iii) as otherwise necessary to service your User Account or enforce this Agreement, our policies, applicable law, or any other agreement we may have with you.
Catch cares about the integrity and security of your personal information. Catch uses commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of your personal information and implement your privacy settings. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
You may close your User Account and terminate your relationship with us without cost, but you will remain liable for all obligations related to your User Account even after your User Account is closed. As soon as you close your User Account, you immediately forfeit any and all Credits in your User Account, without refund; provided that we will refund all undisputed amounts arising from an eligible return or exchange with a Merchant. You may not close your User Account to evade an investigation or if you have a pending transaction or an open dispute or claim.
You agree to defend, indemnify and hold harmless Catch and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) any content that is submitted via your User Account including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of the Service with your mobile phone, authentication pin code, or other appropriate security code.
10. No Warranty
THE SERVICE AND ALL CREDITS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE AND/OR CREDITS IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE AND CREDITS ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CATCH OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, CATCH, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT ITS CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE OR CREDITS WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE OR CREDITS WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
FURTHER, CATCH DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND CATCH WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
11. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CATCH, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SERVICE. UNDER NO CIRCUMSTANCES WILL CATCH BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CATCH ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL CATCH, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO CATCH HEREUNDER OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF CATCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12. Governing Law, Arbitration, and Class Action/Jury Trial Waiver
12.1 Governing Law.
You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”) governs the interpretation and enforcement of the Arbitration Agreement in Section 12.2 and preempts all state laws to the fullest extent permitted by law. If the FAA is found to not apply to any issue that arises from or relates to the Arbitration Agreement, then that issue shall be resolved under and governed by the law of your state of residence. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the exclusive personal jurisdiction of the federal and state courts located in San Francisco County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that San Francisco County, California is the proper and exclusive forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM CATCH. This Section 12.2 (the “Arbitration Agreement”) applies to and governs any dispute, controversy, or claim between you and Catch that arises out of or relates to, directly or indirectly: (a) this Agreement, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (b) access to or use of the Service, including receipt of any advertising or marketing communications; (c) any transactions through, by, or using the Service; or (d) any other aspect of your relationship or transactions with Catch, directly or indirectly, as a consumer (“Claim” or collectively, “Claims”). The Arbitration Agreement shall apply, without limitation, to all Claims that arose or were asserted before or after your agreement to this Agreement.
If you are a new Catch user, you can reject and opt-out of this Arbitration Agreement within 30 days of accepting this Agreement by emailing Catch at firstname.lastname@example.org with your first and last name and stating your intent to opt-out of the Arbitration Agreement. Note that opting out of this Arbitration Agreement does not affect any other part of this Agreement, including the provisions regarding controlling law or in which courts any disputes must be brought.
For any Claim, you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. In the unlikely event that Catch has not been able to resolve a Claim after sixty (60) days, we each agree to resolve any Claim exclusively through binding arbitration by the American Arbitration Association (“AAA”) before a single arbitrator (the “Arbitrator”), under the Expedited Procedures then in effect for AAA (the “Rules”), except as provided herein. In the event of any conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement shall control. AAA may be contacted at www.adr.org, where the Rules are also available. The arbitration will be conducted in the U.S. county where you live or San Francisco County, California, unless you and Catch agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (i) AAA may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from AAA; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. You and Catch agree that the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Agreement, any provision of the Agreement, is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel.
Nothing in this Section shall be deemed as: preventing Catch from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights; or preventing you from asserting claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances on only an individual (non-class, non-representative) basis.
If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, shall be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, shall have no impact on the remaining provisions of the Arbitration Agreement, which shall remain in force, or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement. Notwithstanding the foregoing, if the Class Action/Jury Trial Waiver is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement shall be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief shall be stayed pending the outcome of any individual claims in arbitration.
12.3 Class Action/Jury Trial Waiver.
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AND CATCH AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON YOUR INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT OTHER CATCH USERS. YOU AND CATCH FURTHER AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND CATCH ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO BRING, JOIN, OR PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND AS A PLAINTIFF OR CLASS MEMBER.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Catch without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
13.2 Notification Procedures and Changes to the Agreement.
Catch may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Catch in our sole discretion. Catch reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. Catch is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Catch may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to the Agreement. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to any of these terms or any future Terms of Service, do not use or access (or continue to access) the Service.
13.3 Entire Agreement/Severability.
This Agreement, together with any amendments and any additional agreements you may enter into with Catch in connection with the Service, shall constitute the entire agreement between you and Catch concerning the Service. Except as otherwise stated in Section 12.2, if any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
13.4 No Waiver.
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Catch’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
13.5 California Residents.
The provider of services is: Catch Inc., 1939 20th Street, San Francisco, CA 94107, telephone 415-275-2454. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
Please contact us at firstname.lastname@example.org with any questions regarding this Agreement.