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Terms and Conditions
 

Photobuggie™ Terms of Service

Welcome to Photobuggie™. Photobuggie™ provides Users a fun and easy way to process, print, store, and otherwise use (collectively “Process”) photographs. However, before you enter the Photobuggie.com website (the “Site”) or use any of Photobuggie, LLC’s (the “Company”) services, you must carefully review the Terms and Conditions set out below (the “Terms”). In addition, specific pages on the Site may set out additional terms and conditions, all of which are incorporated by reference into these Terms. These Terms may be changed or updated at any time, but you can always find the most recent version here. In the case of inconsistencies between these Terms and information included in off-line materials or in an advertising (for example, promotional materials and mailers), these Terms will always be the controlling reference. You should periodically check this page to make sure you are up to date as they will be revised from time to time.

By entering and using the Site, you indicate that you accept these Terms and that you agree to be bound by them. Acceptance of these Terms creates a binding contract between you and Photobuggie™ that you will use the Site and its services (together, the “Service”) only in a manner consistent with these Terms. If you have questions about these Terms, please contact support@photobuggie.com. Your use of the Service is entirely conditioned on and subject to your compliance with these Terms. If you do not agree with these Terms, do not access or use the Service.

  • Terms of Membership. Terms of Membership. Photobuggie™ service (“Membership”) is available to you if you are at least 18 years of age and submit certain requested information to Photobuggie™, including your name, address, and have a valid mobile telephone number. By enrolling, you confirm the information submitted is accurate, you are at least 18 years of age, and are duly authorized to incur charges on the mobile bill telephone account provided. By providing your mobile number to Photobuggie™ you expressly consent to receive text messages from Photobuggie™ in order to fulfill your membership.The personal photo service is $14.95 per month and will automatically appear on your mobile telephone bill as being billed on behalf of Photobuggie™, LLC unless you cancel. You can cancel at anytime, without penalty, by calling Customer Service at 1-866-937-1851, by emailing us at support@photobuggie.com, or writing us at 73 Greentree Drive #2, Dover DE 19904. To receive a copy of your order record of photobuggie send a written request to 73 Greentree Drive #2, Dover DE 19904
  • Fees. The applicable billing disclosures apply. To get a copy of the billing disclosures please contact customer service at 1-866-937-1851, by emailing us at support@photobuggie.com
  • Credit card authorization. You agree that we may obtain authorization in advance from the issuer of your credit card to charge subscription fees to the card in the event you do not cancel your free trial at before it would otherwise end. Although the pre-authorization is a guarantee from your card issuer and not an actual charge to the card, card issuers have their own policies regarding the treatment of pre-authorizations. Some card issuers may treat the pre-authorization as a pending charge and reduce your available credit by the amount pre-authorized. You agree that we are not responsible for any consequences that may occur as a result of your card issuer's responses to our obtaining a pre-authorization. These responses may include, but are not limited to, a temporary unavailability of part of your otherwise available credit line and the imposition of overlimit fees.
  • Fraud. Photobuggie™ reserves the right to suspend or cancel your Membership or to terminate or limit any of your rights under these Terms in its reasonable discretion if it deems that your registration was in any way fraudulent or unauthorized. If for any reason Photobuggie™ deems it necessary to suspend or cancel your Membership or terminate or limit your rights under these Terms without due cause, then Photobuggie™ will refund you an amount equivalent to the amount paid to Photobuggie™ without further liability.
  • Digital Image Storage. Photobuggie™ offers storage of online photos and videos (“User Content”) to Users. There is no pre-determined limit as to the amount of User Content Users can upload, although Photobuggie™ reserves the right to place reasonable limits on the amount of User Content and the length of time it will be stored. When a User  uploads  image or video User Content to the Service, the original resolution of the User Content may be affected depending on the upload speed chosen.   Please note that the Service is not a promise to store content indefinitely.  A User should not use the Service as the only repository or other source for User Content and Photobuggie™ shall not be responsible in any way for any lost data or images.  Users should always preserve original User Content, and/or make back-up copies of such User Content on a separate personal system.
  • User  Conduct. Photobuggie™ is committed to ensuring that the Service remains a fun and safe place to process photographs. To that end, the Service allows Users to be creative with their User Content. Users of the Service, whether or not paid members, may not use the Service to Process Prohibited Content. Users are solely responsible for the photos, profiles (including name, image, and likeness), messages, notes, text, information, music, video, advertisements, listings, and other content that you upload, publish or display (hereinafter, “post”) on or through the Service or the Site, or transmit to or share with other users (collectively the “User Content”).   Users may not post, transmit, or share User Content on the Site or Service that a User did not create or that the User did not have permission to post. Generally, Prohibited Content includes Content or other material that Photobuggie™ believes:
  • Is abusive, deceptive, pornographic, obscene, defamatory, slanderous, offensive, or otherwise inappropriate;
  • Comprises copyrighted material used without the express permission of the owner;
  • Violates or otherwise encroaches on the rights of others;
  • Contains viruses, worms, corrupt files, Trojan horses or other forms of corruptive code, or any other content which may compromise the Service;
  • Advocates illegal activity;
  • Harms anyone, including minors; or,
  • Provides a link to any of the above.

Photobuggie™ has the sole discretion to determine whether User Content is Prohibited Content, and any User Content submitted to the Service may be subject to examination from time to time. Although Photobuggie™ does not and will not examine or otherwise review all User Content submitted or transmitted to the Service, Photobuggie™ may delete, move, and edit User Content for any reason, at any time, without notice.  All User Content (whether private or public) that is Processed on the Site is the sole responsibility of the person who submitted it. Thus, a User is responsible for User Content.  By viewing the Site, a User may be exposed to User Content that he or she considers to be offensive.  Viewers take sole responsibility for such exposure. Photobuggie™ in no way guarantees the accuracy, quality or appropriateness of User Content available through the Service.  In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, we have adopted a policy of terminating, in appropriate circumstances and at its sole discretion (described below).  Users who are deemed to violate the code of User Conduct set forth above, including repeat infringers. We may also at our sole discretion limit access to the Site and/or terminate the memberships of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

  • Site Content.  All content on the Site and available through the Service, including designs, text, graphics, pictures, video, information, applications, software, music, sound and other files, and their selection and arrangement (the “Site Content”), are the proprietary property of Photobuggie, LLC, its users or its licensors with all rights reserved. No Site Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without the Photobuggie’s prior written permission, except that the foregoing does not apply to a User’s own User Content that is legally posted on the Site. Provided that a User is eligible for use of the Site, a User is granted a limited license to access and use the Site to which the User has properly gained access solely for personal, non-commercial use, provided that the User keeps all copyright or other proprietary notices intact. Except for a User’s own User Content, a  User may not upload or republish Site Content on any Internet, Intranet or Extranet site or incorporate the information in any other database or compilation, and any other use of the Site Content is strictly prohibited. Such license is subject to these Terms of Use and does not permit use of any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Site or the Site Content other than as specifically authorized herein, without the prior written permission of the Company, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms of Use shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time without notice and with or without cause. Your use of the Service may be for personal purposes only. You will not (i) reproduce, duplicate, copy, sell, resell or exploit any part of the Service, or (ii) use or access the Service for any commercial purpose.
  • Privacy Policy. We respect your privacy and have taken specific steps to protect it and disclose the ways in which your information may be shared with others. Please see our Privacy Policy.
  • Copyright. When you use the Service, you become a participant in an online community of people who enjoy photography. In order for Photobuggie™ to make your photos available to you and your invitees, as well as to use images to offer you a special variety of online services, Photobuggie™ needs the rights to make use of all Content on the Service, in accordance with and subject to these Terms. Accordingly, as a condition to your Membership, you hereby grant Photobuggie™ a perpetual, universal, non-exclusive, royalty-free right to copy, display, modify, transmit, make derivative works of, and distribute your Content, solely for the purpose of providing the Service. As a condition to Membership, you represent and warrant to Photobuggie™ that you either own your Content or have written permission from the copyright owner to make such Content available to the Service. The Service is protected by U.S. and international copyright laws and by other applicable laws. You may not Process any Content owned by someone else without the written consent of the owner of such Content. You are solely responsible for any copyright violations that you may incur as a result of your activities on the Service.
  • Digital Millennium Copyright Act. Notification of Claimed Infringement: If you believe that your work or the work of another has been copied in a way that constitutes copyright infringement or infringes on any other intellectual property right, Photobuggie™ has a process in place to respond to your concerns. We respect the intellectual property rights of others and we prohibit users from uploading any materials that violate another party's intellectual property rights. When we receive proper notification of alleged copyright infringement, we will promptly remove or disable access to the allegedly infringing material.  We will also terminate the accounts of any repeat alleged infringers in accordance with the Digital Millennium Copyright Act.  If you believe that any material on the Site infringes upon any copyright which you own or control, you may send a written notification of such infringement to our Designated Agent and include a) information in sufficient detail to identify the copyrighted work or intellectual property that you claim has been infringed so that we can locate the material, b) the electronic or physical signature of the owner of the copyright or a person authorized to act on the owner's behalf, c) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law, d) information to identify the copyrighted work claimed to have been infringed or if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; e) a representation that the information contained in your Notice is accurate and that you attest under the penalty of perjury that you are the copyright owner or that you are authorized to act on the copyright owner's behalf, and f) your name, mailing address, telephone number and email address.  You may submit a notification of alleged copyright infringement to our Designated Agent by mail or E-Mail as set forth below:

Photobuggie Designated Copyright Agent
Photobuggie LLC
73 Greentree Drive #2
Dover DE 19904
Email: copyright@photobuggie.com

Upon receiving a proper notification of alleged copyright infringement as described above, we will remove or disable access to the allegedly infringing material and promptly notify the alleged infringer of your claim. We also will advise the alleged infringer of the DMCA statutory Counter Notification procedure described below by which the alleged infringer may respond to your claim and request that we restore this material.

DMCA Statutory Counter Notification Procedure:  If you believe that your work or the work of another has been improperly removed or disabled as a result of a Notification of Claimed Copyright Infringement, you may send a written Counter Notification to our Designated Agent and include a) the electronic or physical signature of the User; b)  information in sufficient detail to identify the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; c) a statement under penalty of perjury that the User has a good faith belief that the materials was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; d) the User’s name, address, and telephone number, and a statement that the User consents to the jurisdiction of the Federal Court for the judicial district in which the address is located, or if the User is located outside of the United States, for any judicial district in which the service provider may be found, and that the User will accept service of process from the person who provided Notification of Infringement or an agent of such person. You may submit the Counter Notification  to our Designated Agent by mail or E-Mail as set forth below:

Photobuggie Designated Copyright Agent
Photobuggie LLC
73 Greentree Drive #2
Dover DE 19904
Email: copyright@photobuggie.com

If you send us a valid, written Counter Notification meeting the requirements described above, we will restore your removed or disabled material after 10 business days but no later than 14 business days from the date we receive your Counter Notification, unless our Designated Agent first receives notice from the party filing the original Notification of Alleged Copyright Infringement informing us that such party has filed a court action to restrain you from engaging in infringing activity related to the material in question.

  • Limited Warranty. (A) No Liability for Content IN NO EVENT WILL PHOTOBUGGIE.COM, LLC, INCLUDING PHOTOBUGGIE, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS, EMPLOYEES, AND OWNERS AS WELL AS PHOTOBUGGIE.COM’S AFFILIATES BE LIABLE FOR ANY CLAIM OF ANY NATURE, WHETHER DIRECT OR INDIRECT, ARISING FROM OR RELATED TO (I) CONTENT MADE AVAILABLE ON OR THROUGH THE SERVICE, INCLUDING ERRORS OR OMISSIONS IN SUCH CONTENT, OR (II) LOSS OR DAMAGE INCURRED AS A RESULT OF CONTENT. (B) Exclusive Remedy ANY PRODUCT OR SERVICE MADE AVAILABLE THROUGH THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. PHOTOBUGGIE.COM™ WARRANTS ONLY THAT PHOTOGRAPHIC PRINT ORDERS WILL BE PROVIDED TO YOU IN USABLE CONDITION. IF YOUR PRINTS ARE DAMAGED, , OR LOST, PHOTOBUGGIE.COM’S™   SOLE OBLIGATION, AND YOUR SOLE AND EXCLUSIVE REMEDY, WILL BE FOR PHOTOBUGGIE.COM™ TO EITHER (I) REFUND THE FULL AMOUNT OF THE PURCHASE PRICE OF SUCH PRINTS, OR (II) REPRINT THE PHOTOS AT NO EXTRA COST AND (C) Disclaimer EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTY, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE HEREBY DISCLAIMED. PHOTOBUGGIE.COM™  MAKES NO WARRANTY THAT (i) THE SERVICE WILL BE PROVIDED IN A MANNER THAT IS UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, (ii) THE SERVICE IS OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (iii) THE SERVICE WILL MEET YOUR REQUIREMENTS. PHOTOBUGGIE.COM™  MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO SOFTWARE, GOODS, OR SERVICES THAT ARE PURCHASED, ACCESSED, OR OBTAINED THROUGH THE SERVICE OR THAT ARE ADVERTISED ON THE SITE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. (D) REMEDIES. TO THE FULLEST EXTENT PERMITTED UNDER LAW, THE REMEDIES SET FORTH IN THESE TERMS ARE YOUR SOLE AND EXCLUSIVE REMEDIES.
  • LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER LAW, PHOTOBUGGIE.COM, LLC, INCLUDING PHOTOBUGGIE, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS, EMPLOYEES, AND OWNERS AS WELL AS PHOTOBUGGIE.COM’S™  AFFILIATES,  WILL HAVE NO OBLIGATION OR LIABILITY (WHETHER ARISING IN CONTRACT, WARRANTY, TORT, INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE) FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LIABILITIES (INCLUDING ANY LOSS OF DATA, REVENUE OR PROFIT) ARISING WITH RESPECT TO YOUR USE OF THE SERVICE, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION APPLIES TO DAMAGES ARISING FROM (i) USE OR INABILITY TO USE THE SERVICE, (ii) COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS BY THIRD PARTIES, (iv) THIRD PARTY CONTENT MADE AVAILABLE TO YOU THROUGH THE SERVICE, OR (v) ANY OTHER MATTER RELATING TO THE SERVICE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
  • Refund Policy. (Preferred Members) PHOTOBUGGIE.COM™ will charge your credit card with the monthly membership fee at the start of your membership. We will continue to charge your credit card account on a monthly basis until you cancel your membership. Once you become a preferred member you will be billed each month until you cancel your membership. You may cancel your preferred membership with us by notice in writing, or by calling us. You can do this at any time without incurring a cancellation fee. Upon canceling your preferred membership, no further fees will be charged. Cancellation of your preferred membership will not entitle you to a refund for prior months paid membership fees.
  • Free Trial. When you order your 3 day trial of PHOTOBUGGIE.COM™, you agree to be charged the membership price of $14.95 at the end of your trial period. If for any reason you decide to cancel PHOTOBUGGIE.COM™ during the trial period, call Customer Care toll free at 1-866-937-1851 anytime during your 3 day trial period to cancel or by emailing us at support@photobuggie.com.
  • Choice of Law. The state and federal courts of New York are the exclusive forum and venue to resolve any and all disputes arising out of or otherwise relating to these Terms. You consent to personal jurisdiction and venue by the state and federal courts of New York, NY.
  • Consumer Disclosure.  THIS CONSUMER TRANSACTION INVOLVES A NEGATIVE OPTION, AND YOU MAY BE LIABLE FOR PAYMENT OF FUTURE GOODS AND SERVICES UNDER THE TERMS OF THIS AGREEMENT IF YOU FAIL TO NOTIFY THE SUPPLIER NOT TO SUPPLY THE GOODS OR SERVICES DESCRIBED.
  • Modification of Terms. The Company may amend these Terms at any time, for any reason, and without notice, including the right to terminate the Service or any part of the Service. Any amendments or modifications will be prospective only.
  • Dispute Resolution By Binding Arbitration

    PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.

    Summary: Photobuggie (the "Company") hopes to make you a happy customer, but if there is an issue that needs to be resolved, this section describes how both us will proceed.

    Most customer concerns can be resolved quickly and to the customer's satisfaction by calling our customer service department at 1-866-937-1851.

    In the unlikely event that the Company's customer service department is unable to resolve a complaint you may have to your satisfaction (or if we have not been able to resolve a dispute it has with you after attempting to do so informally), you and the Company each agree to resolve those disputes through binding arbitration or in small claims court, rather than proceeding in a court of general jurisdiction. You and the Company further agree that each may bring claims against the other only in an individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.

    Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award.

    Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted even if the arbitral body permits claims to proceed on a class wide basis.

    For any non-frivolous claim that does not exceed $75,000, the Company will pay all costs of the arbitration. Moreover, in arbitration you are entitled to recover attorneys' fees from the Company to at least the same extent as you would be entitled to in court.

    In addition, under the circumstances explained below, the Company will pay you more than the amount of the arbitrator's award and the Company will pay your attorney (if any) twice his or her reasonable attorneys' fees, if the arbitrator awards you an amount that is greater than what the Company has offered you to settle the dispute.

    Arbitration Agreement

    References to "we," "you," and "us" include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services under this or prior agreements between us.

    (1) Except for small claims court cases which would be governed by the local court in which you or the Company files a small claims lawsuit, you and the Company agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:

    • claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
    • claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising);
    • claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
    • claims that may arise after the termination of this Agreement.

    Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, including, for example, the Federal Communications Commission, or the Better Business Bureau. Such agencies can, if the law allows, seek relief against us on your behalf.

    (2) This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement and our business relationship.

    (3) YOU AND THE COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. Further, unless both you and the Company agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.

    (4) A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to the Company should be addressed to:

    73 Greentree Drive #2
    Dover DE 19904
    ("Company Address").

    The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If you and the Company are unable to resolve the claim within 30 days after the Notice is received, you or the Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or the Company shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or the Company is entitled.

    (5) After the Company receives notice at the Company Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than $75,000. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for a court to decide. Unless you and the Company agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Except as otherwise provided for herein, the Company will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Rule 11 of the Federal Rules of Civil Procedure, then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse the Company for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.

    (6) If, after finding in your favor-in any respect-on the merits of your claim, the arbitrator issues you an award that is greater than the value of the Company's last written settlement offer made before an arbitrator was selected, then the Company will:

    • pay you the amount of the award or $5,000 ("the alternative payment"), whichever is greater; and
    • pay your attorney, if any, twice the amount of attorneys' fees, and reimburse any expenses (including expert witness fees and costs) that your attorney reasonably accrues for investigating, preparing, and pursuing your claim in arbitration ("the attorney premium").

    If the Company did not make a written offer to settle the dispute before an arbitrator was selected and you prevailed on a non-frivolous claim, you and your attorney will be entitled to receive the alternative payment and the attorney premium described above. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the alternative payment and the attorney premium at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.

    (7) The right to attorneys' fees and expenses discussed in the preceding paragraph supplements any right to attorneys' fees and expenses you may have under applicable law. Thus, if you would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding you that amount. However, you may not recover duplicative awards of attorneys' fees or costs.

    (8) If for any reason a claim proceeds in court rather than through arbitration, you and the Company agree that there will not be a jury trial. You and the Company unconditionally waive any right to trial by jury in any action, proceeding, or counterclaim, arising out of or relating to this agreement in any way.

    (9) You and the Company agree that if the Company makes any future change to this dispute resolution provision (other than a change to the Notice Address) while you are a customer, you may reject any such change by sending us written notice within 30 days of the change to the Company's address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of the provision in effect prior to the proposed revision.

  Date of Last Revision: June 12, 2012

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