(Updated: August 04, 2022)
Terms of Use: General Terms
Please read these Terms of Use carefully. These Terms of Use set forth the legally binding terms and conditions between you and PSafe, and its affiliates (“PSafe”) that govern your use of the websites located at https://www.psafe.com/ and https://www.dfndrlab.com (and all respective sub-domains) (collectively, the “Websites”) and the services offered through and content contained on the Websites, including any use of the Websites or services in connection with your use of PSafe’s products or services (collectively, the “Services”). These Terms of Use apply solely to the use of the Services by users located in the United States.
BY ACCESSING OR USING THE SERVICES, YOU ARE ACCEPTING THESE TERMS OF USE (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH PSAFE, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS OF USE (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT).
IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS OF USE, DO NOT ACCESS AND/OR USE THE SERVICES.
PLEASE BE AWARE THAT SECTION 11 OF THESE TERMS OF USE, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THESE TERMS OF USE. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THESE TERMS OF USE.
1. User Data
1.1. In order to guarantee the quality of the service provided via the Internet, it is essential that users provide the necessary and correct data when requested by PSafe. You represent and warrant that: (a) all information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. PSafe disclaims responsibility for the incorrect completion of information.
1.2. In order to use certain features of the Services, you may have to register for an account and provide any required registration information. Regarding the provision of data required for the user to register in PSafe’s system, if applicable:
1.2.1. PSafe may, at its sole discretion, not accept the registration of any user account and PSafe may suspend or terminate your account and/or refuse any and all current or future use of the Services (or any portion thereof) at any time for any reason. You agree that PSafe, nor its affiliates, suppliers or licensors, will be liable to you or to any third party for any rejection of registration of your account, suspension or termination of your account or any refusal of any use of the Services (or any portion thereof).
1.2.2. The truth and accuracy of the data provided by users is an essential requirement for maintaining your account.
1.2.3. It is prohibited for one person to have more than one account. If PSafe detects duplicate accounts, through the data verification system, both accounts will be permanently disabled.
1.2.4. Only registrations of those would-be users who fill out all the required information fields will be considered. The future user must complete the registration with accurate, precise and true information, assuming the commitment of updating their personal data whenever a change occurs.
1.2.5. PSafe disclaims responsibility for the truth and accuracy of data entered by its users. The users guarantee and are responsible for, in whatever case, the truthfulness and accuracy of registration data.
1.2.6. PSafe reserves the right to use all valid and possible means to identify its users, as well as to request additional data and documents it deems to be relevant in order to verify registration data.
1.2.7. The user shall access his account via e-mail and password and agrees not to share this information with third parties. The user is fully responsibility for any use made thereof.
1.2.8. The user agreed to immediately notify PSafe, through secure means, of any unauthorized use of his account, as well as any unauthorized access of the same by third parties. The user is solely responsible for all activities that occur under his account.
1.2.9. The transfer, sale, rent or any other form of account transfer is not permitted under any circumstances. It also is not permitted to maintain more than one account for the same person, or to create new accounts for people whose original accounts have been canceled.
2. Amendments to the Terms of Use
2.1. PLEASE NOTE THAT these Terms of Use are subject to change by PSafe in its sole discretion at any time. When changes are made, PSafe will make a new copy of the Terms of Use available on the Websites. We will also update the “Updated” date at the top of these Terms of Use. If we make any material changes, we may also send an e-mail to you at the last e-mail address you provided to us. Any changes to the Terms of Use will be effective immediately for new users of the Websites and/or Services and will be effective thirty (30) days after posting notice of such changes on the Websites or thirty (30) days after dispatch of an e-mail notice of such changes for existing users (only if such existing users have provided PSafe with a valid e-mail address). PSafe may require you to provide consent to the updated Terms of Use in a specified manner before further use of the Websites and/ or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Websites and/or the Services. Otherwise, your continued use of the Websites and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITES TO VIEW THE THEN-CURRENT TERMS OF USE.
2.2. The amendments will not affect operations already initiated at the time that the amendments are published. For these situations, the previous edition of the Terms of Use will prevail.
3. Privacy Policy
For information about our privacy practices, see the Privacy Policy.
4. Restrictions
4.1. The rights granted to you in these Terms of Use are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other portion of the Services (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using PSafe’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Websites (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Websites for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the Services in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. PSafe, its affiliates, its suppliers and service providers reserve all rights not granted in these Terms of Use. Any unauthorized use of the Services terminates the licenses granted by PSafe pursuant to these Terms of Use.
4.2. As a condition of use, you agree not to use Services for any purpose that is prohibited by these Terms of Use or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) upload any Content (defined below) that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without PSafe’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of PSafe; (vi) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by these Terms of Use; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against the Services , including but not limited to violating or attempting to violate any security features of the Services , using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Services , introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services.
4.3. You acknowledge and agree that certain of the Services rely on information we obtain from third parties (“Third Party Information”). To the extent that we are no longer able to obtain such Third-Party Information, you acknowledge and agree that all or portions of the Services may become unavailable. PSafe will not be liable to you for any such availability.
5. Rights of PSafe
5.1. Without prejudice to other measures, PSafe may warn, suspend, or cancel, temporarily or permanently, a user account at any time and take appropriate legal action if: (a) the user does not comply with any provision of these Terms of Use; (b) the user is not complying with his responsibilities; (c) the user engages in deceptive or fraudulent acts; (d) the identity of the user cannot be verified, or any information provided by the user is incorrect; (e) PSafe deems that acts or actions of the user did any damage to third parties, to PSafe itself, or have the potential to do so. In the case of disabling the user registration, all “points” (or any other virtual currency) and related active rewards automatically will be canceled.
5.2. We reserve the right, at any time, to modify, suspend, or discontinue the Services (in whole or in part) with or without notice to you. You agree that neither PSafe, its affiliates, nor their licensors or suppliers will be liable to you or to any third party for any modification, suspension, or discontinuation of the Services or any part thereof.
5.3. You acknowledge and agree that we will have no obligation to provide you with any support or maintenance in connection with the Services. You understand that the Services are evolving. As a result, PSafe may require you to accept updates to Services. You acknowledge and agree that PSafe may update Services with or without notifying you.
5.4. As a part of Services, you may have access to materials that are hosted by another party. You agree that it is impossible for PSafe to monitor such materials and that you access these materials at your own risk.
6. Disclaimers
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. PSAFE, ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS (“PSAFE PARTIES”) EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE PSAFE PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. THE PSAFE PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PSAFE OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. PSAFE AND ITS AFFILIATES, LICENSORS AND OTHER SUPPLIERS MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE WEBSITES OR SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE WEBSITES OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE WEBSITES OR SERVICES WILL BE ACCURATE OR RELIABLE.
7. Intellectual Property
7.1. You acknowledge and agree that (a) the Services are and will remain the sole property of PSafe and/or its affiliates, suppliers and licensors and are subject to protection under U.S. and foreign copyright laws and (b) all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Services and content made available through the Services are owned by PSafe and/or its affiliates, suppliers and licensors. PSafe’s name, logo, and the product names on the Websites belong to PSafe and/or its affiliates, suppliers and licensors, and no right or license is granted to use them by implication, estoppel or otherwise. Neither these Terms of Use nor your use of or access to the Services transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth below. PSafe and its affiliates, suppliers and licensors reserve all rights not granted in these Terms of Use. There are no implied licenses granted under these Terms of Use. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
7.2. Subject to these Terms of Use, PSafe grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Services and to reproduce portions of Services, all solely for your personal or internal business purposes.
7.3. The Websites may link to other sites on Internet, which does not mean that these sites are owned or operated by PSafe. Having no control over these sites, PSafe disclaims responsibility for the content, practices and services offered on them. The presence of links to other sites does not imply a corporate, supervisory, participatory or joined relationship between PSafe and these sites and their contents. Your use of such other sites is at your own risk. When you leave any of our Websites, these Terms of Use no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any such other sites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
7.4. The Services may invite the user to participate in online forums, online messaging services or other features that could lead the user to create, post, submit, publish, transmit or distribute content including but not limited to text, photographs, graphics, drawings, comments, suggestions or other information (“Content”). The user acknowledges that the user is solely responsible for all Content that it makes available, regardless of the tool, system or form of submission. Whenever a user creates, posts, submits, publishes, distributes or transmits content via the Services, or through Services that the user has access to due to the use or installation of the Services, you grant (and represent and warrant that you have the necessary rights to grant) to PSafe a non-exclusive, royalty-free, perpetual, irrevocable, worldwide, transferable and sublicensable right (including any moral rights) and license to use, copy, modify, adapt, distribute, store, host, publish, process, create derivative work or exploit in any way in whole or in part any media, software or way that is known or may come to exist hereafter, the Content you provide for the purposes of operating and providing the Services to you and to our other users without any other consent, notice and/or compensation for yourself or others. PSafe reserves the right in its sole discretion to remove any Content that you provide at any time for any reason. You agree that neither PSafe, nor its affiliates, suppliers or licensors will be liable to you or to any third party for such removal.
7.5. You agree that submission of any ideas, suggestions, documents, and/or proposals to PSafe, including through interactions with support, including through any instant-messaging tool or via email (“Feedback”) is at your own risk and that PSafe has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to PSafe a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights.
8. Content You Provide
8.1. You acknowledge and agree that you are responsible for all text, images, photographs, data, information or other materials provided or uploaded by you to the Websites (“User Generated Content”), whether publicly posted or privately transmitted, on or through the Websites. You, and not PSafe, are solely responsible for all User Generated Content that is associated with your account. For each piece of User Generated Content that you submit, you represent and warrant that: (i) you have the right to submit the User Generated Content to us and grant the licenses set forth in this Section 8; (ii) PSafe will not need to obtain licenses from any third party or pay royalties to any third party to use such User Generated Content; (iii) the User Generated Content does not infringe, violate or misappropriate any third party’s rights, including any copyrights, trademarks or other intellectual property rights and privacy rights; and (iv) the User Generated Content complies with these Terms of Use and all applicable laws.
8.2. While PSafe does not review User Generated Content as a matter of course, we may determine, in our sole discretion, that certain User Generated Content violates these Terms of Use, and in such case, we may delete such content. PSafe does not actively monitor or control any User Generated Content on the Websites and, as such, does not guarantee the accuracy, reliability or quality of such content. You understand that by using the Services, you may be exposed to content that you may consider offensive, indecent or objectionable. Under no circumstances will PSafe be liable for any User Generated Content posted by any other user of the Services, including any loss or damage of any kind incurred as a result of the use of any User Generated Content. You agree that PSafe may, at any time, in its sole discretion, refuse to post, store or transmit any User Generated Content.
8.3. You acknowledge and agree that PSafe may access, preserve and disclose account information and/or User Generated Content that you provide if PSafe is required to do so by applicable law or if we believe in good faith that such access, preservation or disclosure is reasonably necessary to (i) comply with legal process, (ii) enforce these Terms of Use, (iii) respond to claims that any User Generated Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of PSafe, our employees, directors or officers, partners and agents, or members of the public.
8.4. By posting, displaying, sharing or distributing the User Generated Content on or through the Websites, you grant PSafe, its affiliates, and any third party service providers a nonexclusive, royalty-free, perpetual, irrevocable, worldwide, transferable and sublicensable right (including any moral rights) and license to use, copy, modify, adapt, distribute, store, host, publish, process, create derivative work or exploit in any way in whole or in part any media, software or way that is known or may come to exist hereafter the User Generated Content solely for the purpose of operating the Websites. PSafe will not modify, copy, translate or make any derivative works of User Generated Content except as required to deliver the benefits of the Services. PSafe acknowledges that it is acquiring no rights in the User Generated Content except for the limited rights set forth herein.
8.5. In addition to the limitations set forth in Section 4 with respect to the license to the Services granted to you by these Terms of Use, you agree not to upload User Generated Content which is or includes material that: (i) is offensive, abusive, defamatory, pornographic or obscene, (ii) is illegal or promotes an illegal act of any kind, including violations of intellectual property rights, privacy or proprietary rights of PSafe or a third party, (iii) includes personal data of third parties or is intended to solicit such personal data, (iv) includes malicious content such as malware, Trojan horses or viruses, or otherwise interferes with the proper functioning of the Services or with any user’s access to the Services, (v) is intended to or does harass or bully any person, (vi) impersonates or misrepresents your identity or your affiliation with another user, person or entity, or is otherwise fraudulent, false, deceptive, or misleading (in which case, PSafe may at any time and in its sole discretion reclaim your username), (vii) uses automated means to artificially promote content, (viii) involves the transmission of unsolicited mass mailing (“spam”), junk mail, chain letters, or similar communications, (ix) involves commercial or sales activities such as advertising, contests, sweepstakes, or pyramid schemes, (x) interferes with or disrupts the Services, tampers with or attempts to prove, scan, or test for vulnerabilities in the Services or PSafe’s computer systems or network, or breaches any of PSafe’s security, encryption or authentication measures, (xi) harms or exploits people under the age of 18 (or such other age as determined by applicable law), or (xii) conflicts with these Terms of Use, in each case as determined by PSafe.
9. Copyright Infringement
9.1. PSafe respects the intellectual property rights of others and we ask our users to do the same. If you are a copyright owner and believe a user of the Services is infringing your copyright or the copyright of any third party, please notify our designated copyright agent in writing at the following address:
PSafe Technology, Inc.
Attn: Copyright Agent
2810 N Church St PMB 52508
Wilmington, Delaware 19802-4447
Email: copyright@psafe.com
9.2. Each notification must include the following information: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed, (ii) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works, (iii) identification of the material that is claimed to be infringing, and information reasonably sufficient to permit PSafe to locate the material, (iv) information reasonably sufficient to permit PSafe to contact you, such as an address, telephone number, and, email address, (v) a written statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law, and (vi) a statement made under penalty of perjury that the information in the notification is accurate, that you are the copyright owner or authorized to act on the owner’s behalf.
9.3. The above process may be used to inform us of potential or suspected violations of other intellectual property rights, including unauthorized use of trademarked material.
9.4. We may remove User Generated Content and other content on the Services alleged to be infringing, and we reserve the right to terminate the right to use the Services of any user who infringes the intellectual property rights of another person or entity, in each case without prior notice and at our sole discretion.
10. Indemnity
10.1. The user shall indemnify and hold the PSafe Parties harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of (a) his activities on the Websites or use of the Services, (b) noncompliance with these Terms of Use or (c) his violation of any law, rule, or regulation or rights of third parties. PSafe reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with PSafe in asserting any available defenses. This provision does not require you to indemnify any of the PSafe Parties for any unconscionable commercial practice by such party or for such PSafe party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services. You agree that the provisions in this section will survive any termination of your account, these Terms of Use or your access to or use of the Services.
11. Limitation of Liability
11.1. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL THE PSAFE PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE OR EMOTIONAL DISTRESS, WHETHER OR NOT PSAFE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (5) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. NOTWITHSTANDING THE FOREGOING, PSAFE DOES NOT IN ANY WAY SEEK TO EXCLUDE OR LIMIT LIABILITY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A PSAFE PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A PSAFE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
11.2. UNDER NO CIRCUMSTANCES WILL THE PSAFE PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO PSAFE BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY AND (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES.THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A PSAFE PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A PSAFE PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A PSAFE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
11.3. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PSAFE AND YOU.
12. Use of Instant Messaging
12.1. PSafe may make available to the users of its Services an electronic tool that allows for the sending and receiving of instant messages between users and PSafe’s agents, which can be accessed by the user via the pages on the Websites in the “Help” section (when available) or through other means as PSafe determines from time to time. Through this tool, users can ask questions, request additional information and make requests and complaints regarding PSafe’s Services.
12.2. PSafe may provide the tool to facilitate contact between the user and PSafe, in order to improve the quality of the Services provided to users of the Services. However, PSafe reserves the right to terminate, at its sole discretion, any instant messaging session established between a user and a PSafe agent if the user acts inappropriately or in a manner not consistent with the purpose of the electronic tool, or shares any inappropriate or improper content with a PSafe agent. The user agrees that when using the instant messaging tool, all messages exchanged between the user and the PSafe agent will be stored on PSafe servers.
13. Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with PSafe and limits the manner in which you can seek relief from us.
13.1. Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Services, or to any aspect of your relationship with PSafe, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or PSafe may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).
IF YOU AGREE TO ARBITRATION WITH PSAFE, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST PSAFE ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST PSAFE IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
13.2. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to: PSafe Tecnologia Ltda., Caixa Postal 10900, Avenida Nossa Senhora de Copacabana 540, Loja A, AC Copacabana, 22020-970, Rio De Janeiro, RJ, Brazil. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at https://www.jamsadr.com/rules-streamlined-arbitration/ all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at https://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
13.3. Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and PSafe. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
13.3. WAIVER OF JURY TRIAL. YOU AND PSAFE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and PSafe are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified herein. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
13.4. WAIVER OF CLASS OR CONSOLIDATED ACTIONS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER LICENSEE. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court as set forth herein.
13.5. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with PSafe.
13.6. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if PSafe makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to PSafe.
13.7. Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and PSafe agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in San Francisco, California.
14. Export
14.1. You may not use, export, import, or transfer the Services except as authorized by applicable laws. You shall comply with these laws and regulations and shall not, without prior government authorization of the applicable government entity, export, re-export, or transfer the Services, either directly or indirectly, to any country in violation of such laws and regulations.
15. Disclosures
15.1. PSafe is located at the address set forth below. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
16. Electronic Communications
16.1. The communications between you and PSafe use electronic means, whether you use the Websites or Services, use instant messaging functions on the Websites or send us emails, or whether PSafe posts notices on the Websites or communicates with you via email. For contractual purposes, you (a) consent to receive communications from PSafe in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that PSafe provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
17. Miscellaneous
17.1. These Terms of Use constitute the entire agreement between you and us regarding the use of the Services. Our failure to exercise or enforce any right or provision of these Terms of Use shall not operate as a waiver of such right or provision. The section titles in these Terms of Use are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. Any waiver or failure to enforce any provision of these Terms of Use on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of these Terms of Use is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms of Use will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to PSafe is that of an independent contractor, and neither party is an agent or partner of the other. These Terms of Use, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without PSafe’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. PSafe may freely assign these Terms of Use. The terms and conditions set forth in these Terms of Use shall inure to the benefit of and be binding upon permitted assignees. It is the express wish of the parties that these Terms of Use and all related documents have been drawn up in English. Where PSafe requires that you provide an e-mail address, you are responsible for providing PSafe with your most current e-mail address. In the event that the last e-mail address you provided to PSafe is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by these Terms of Use, PSafe’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to PSafe at the address set forth below. Such notice shall be deemed given when received by PSafe by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address. If you have any questions, complaints or claims with respect to the Services, please contact us at the address below. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation. All provisions of the Terms of Use which by their nature should survive, shall survive termination of the Terms of Use, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
18. Force Majeure
18.1. Neither PSafe nor its affiliates, suppliers or licensors will be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
19. Contact Information
E-mail: privacy@psafe.com.
PSafe’s Data Protection Officer (DPO):
GEP Soluções em Compliance – dpo@psafe.com