These Terms of Service (“Terms”) are a binding legal agreement between you and PunchUp Technologies, Inc (“PunchUp,” “we,”, “our,” or “us”). These Terms govern your access to and use of any website (including punchup.live) or mobile application we provide, and any other online or offline services we provide in which we link or otherwise reference these Terms including Entertainer Sites (collectively, the “Services”).
All references to “you” or “your,” as applicable, mean the person who accesses, uses, and/or participates in the Services in any manner, and each of your heirs, assigns, and successors. If you use the Services on behalf of an entity or another individual, you represent and warrant that you have the authority to bind that entity or individual, your acceptance of the Terms will be deemed an acceptance by that entity or individual, and “you” and ”your” herein shall refer to that entity, its directors, officers, employees, and agents.
PLEASE READ THE TERMS THOROUGHLY AND CAREFULLY. BY ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU MAY NOT ACCESS OR USE THE SERVICES.
PunchUp provides services to promote entertainers and better connect fans with the entertainers they enjoy. We provide comedians and other entertainers (each, an “Entertainer”) with a hosted website platform to connect them with fans of their art and performances (each, a “Fan”). In addition to a website platform to connect Entertainers with Fans (an “Entertainer Site”), Entertainers using our Services may have access to publicity management, e-commerce functionality, and overall enhanced online and offline presence. Fans using our Services may have premium access to Entertainers, and may be given the opportunity to subscribe to or purchase merchandise or exclusive content offered by Entertainers.
Except for Section 17 providing for binding arbitration and waiver of class action rights, PunchUp reserves the right, at its reasonable and sole discretion, to modify or replace these Terms at any time. You are responsible for reviewing and becoming familiar with any such modifications. If we determine a revision to the Terms, in our sole discretion, is material, we will notify you as required by law. Use of the Services by you after any modification to the Terms constitutes your acceptance of the Terms as modified. If you do not accept the changes, you must discontinue using the Services.
PunchUp reserves the right at any time to modify, suspend, discontinue, or terminate, temporarily or permanently, the Services (or any part thereof), with or without notice. You agree that PunchUp shall not be liable to you for any modification, suspension, or discontinuance of the Services.
Only individuals who are at least 18 years of age and have the right, authority, and capacity to enter into these Terms, either on behalf of yourself or the entity that you represent, are permitted to access the Services.
You are solely responsible for safeguarding your Account credentials. You are solely responsible for all activity that occurs on your Account, and we may assume that any communications, including User Content we receive under your Account have been made by you. You must notify PunchUp immediately of any breach of security or unauthorized use of your Account. PunchUp will not be liable and you may be liable for losses, damages, liability, expenses, and lawyers' fees incurred by PunchUp or a third party arising from someone else using your Account due to your conduct regardless of whether you have notified us of such unauthorized use. You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your Account.
If PunchUp has previously prohibited you from accessing or using the Services, you are not permitted to access or use the Services. We also reserve the right to disable or close any Account at any time and for any reason or for no reason.
Subject to your compliance with these Terms and any other provisions governing your use of the Services, we grant you a non-transferable, non-exclusive, revocable, limited license to access and use the Services. Your use of the Services is at your own risk.
All right, title, and interest in and to the Services are and will remain the exclusive property of PunchUp and its licensors including where applicable, without limitation, Entertainers. All materials therein, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and all intellectual property rights related thereto, are the exclusive property of PunchUp and its licensors. The Services are protected by copyright, trademark, and other laws of both the United States and foreign countries. You acknowledge that the Services have been developed, compiled, prepared, revised, selected, and arranged by PunchUp and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitute valuable intellectual property of PunchUp and such others.
Entertainers may engage PunchUp for additional services for additional fees (“Fees”). This may include PunchUp providing and maintaining an Entertainer Site. Except as expressly set forth in these Terms, Entertainers are solely responsible for their Entertainer Site, including any content therein, and the Entertainer Site's compliance with all applicable laws, rules, and regulations. Without limitation, if you provide us with User Content to publish on your Entertain Site, you represent and warrant that you have collected all consents or authorizations necessary for PunchUp to publish such User Content and otherwise process such User Content as authorized by these Terms. Entertainers can take down their Entertainer Site at any time by email@example.com.
You agree that the information collected through Entertainer Sites shall be the proprietary information of PunchUp and its licensors, as applicable. Depending on the order form executed by you and us for additional services (the “Order”) and subject to the payment of applicable Fees, we may grant you a license to certain content collected through the Entertainer Sites. Where we grant such a license, such license shall be a worldwide, non-exclusive, revocable, royalty-free, and sublicensable license to store, reproduce, use, publish, publicly display, copy, modify, disclose, and create derivative works of the content identified in an Order. You represent and warrant that you shall comply with all applicable laws, including privacy laws, that govern the content, including any personal information contained within the content.
Our Services, including the Entertainer Sites, may contain goods and other offerings for purchase (“Merchandise”). Merchandise displayed for purchase are not a binding offer, but rather an invitation to place an order. Merchandise is subject to availability and quantity limits. Prices are subject to change without notice. Unless otherwise explicitly stated on the Services, prices displayed do not include taxes, shipping and handling charges, or other fees.
We may in our sole discretion cancel or refuse any order for any reason or no reason prior to delivery. Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order. PunchUp is only deemed to have accepted your order once the Merchandise you ordered have been shipped.
All billing information provided must be truthful and accurate. Providing any untruthful or inaccurate information constitutes a breach of these Terms and may result in order cancellation. We also may require additional verification or information before or after accepting any order. For orders placed with a credit card payment, payment is subject to the approval of the financial institution issuing the credit card and we shall not be liable if such financial institution refuses to accept or honor the credit card for any reason. We may require, at our option, that any order placed over certain dollar amounts receive our pre-approval.
By confirming your purchase at the end of the checkout process, (1) you agree to accept and pay for the Merchandise odered, including all applicable fees, charges, and taxes and (2) you authorize PunchUp to share any payment information and instructions required to complete the payment transactions with its third-party payment service providers (e.g., credit card transaction processing, merchant settlement, and related services).
The Services may enable you to register for subscriptions, such as to a specific Entertainer (each, a “Subscription”). Subscriptions are automatic renewal programs that will automatically renew your Subscription prior to the end of your subscription term, and will continue to do so until terminated. [You will receive a notice to the email address on file in advance of each renewal.] You may cancel at any time by [logging into your Account or contacting us].
By enrolling in a Subscription, you authorize us to charge your credit card on a recurring basis for the applicable charge and any and all taxes or possible transaction fees, and any other charges incurred in connection with your Subscription. Your credit card will automatically be charged the applicable charge on the applicable renewal processing date, unless you cancel before that date.
Credit cards are the only payment method accepted for automatically renewing Subscriptions. To enroll in an automatically-renewing Subscription, you must provide us with a current, valid credit card.
The charge for Subscription renewal will be billed to the credit card you specified in your order. You may update your credit card on your Account page or by contacting us at firstname.lastname@example.org. Following any update, you authorize us to continue to charge your updated credit card. If we are unable to complete your renewal order with the credit card you provided, you authorize us to charge any credit card associated to your Account and to charge that credit card for your order. Some credit card issuers may charge you certain fees, such as foreign transaction fees or other fees relating to the processing of your credit card. Check with your credit card provider for details.
If we are unable to process your credit card for some reason, we may contact you via auto-generated email, text, or phone if you are opted-in to receive such forms of communication.
You may cancel your automatically renewing Subscription at any time before the date your Subscription renewal is processed.
If you cancel a Subscription, you will continue to enjoy the benefits of the Subscription through the end of the current Subscription period. No refunds will be provided. If you cancel your Subscription and then reactivate it, the discount applied to any service may not be the same discount in effect at the time of cancellation.
Pricing and terms are subject to availability, and the price or term for your Subscription may change from time to time. If the price and term for your Subscription changes, we will communicate any price or term changes to you in advance and, if applicable, how to accept those changes. Price or term changes will apply to the next Subscription term following the date of the price or term change. If you do not agree with the price or term change, you have the right to reject the change by cancelling your Subscription prior to the price or term change going into effect. Please therefore make sure you read any such notification of price or term changes carefully.
We may offer promotional trial Subscriptions for free or at special discounted prices. If you sign up for a trial Subscription, your rights to use the applicable Services are limited by the terms of such trial and will terminate or renew according to the terms of your trial arrangement and/or any applicable additional terms. You may cancel your Subscription during your promotional period to avoid being charged the full applicable subscription fee using the procedures described in the "Cancellation" section above.
You understand that when using the Services, you may be exposed to User Content from a variety of sources, including User Content that you may consider offensive or objectionable. PunchUp is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Content, and such User Content is not the responsibility of PunchUp. Any User Content is solely the responsibility of the person or entity submitting such User Content, and we expressly disclaim any and all liability in connection with such User Content. You understand and agree we are not responsible or liable for the deletion of, or the failure to store or integrate into the Services, any User Content.
You agree you will not use the Services for any purpose that is unlawful or prohibited by these Terms, or any other purpose not reasonably intended by PunchUp. Without limitation, you agree not to:
PunchUp has the right to investigate and prosecute violations of any of the above to the fullest extent of the law. PunchUp may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms.
PunchUp respects the intellectual property rights of others and expects its players and the users of its services to do the same. If you believe that any content appearing in the Services and/or User Content has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent named below.
Please be aware that to be effective, your copyright infringement notification must comply with the Digital Millennium Copyright Act ("DMCA"). You are encouraged to review 17 U.S.C. Â§ 512(c)(3) of the DMCA or consult with an attorney prior to sending a notice hereunder.
To file a copyright infringement notice, you will need to send a written communication that includes the following to the address listed below:
ATTN: Copyright Infringement Notification
Please note that the DMCA provides that you may be liable for damages (including costs and attorney fees) if you knowingly misrepresent that material or activity is infringing. Please also note that the information provided in your copyright infringement notice may be provided to the person responsible for the allegedly infringing material.
We welcome your feedback! By sending us any feedback, comments, questions, or suggestions concerning PunchUp, the Services, or us (collectively, “Feedback”) you represent and warrant (a) that you have the right to disclose the Feedback, (b) that the Feedback does not violate the rights of any other person or entity, and (c) that your Feedback does not contain the confidential or proprietary information of any third party or parties.
By sending us any Feedback, you further (i) agree that we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (ii) acknowledge that we may have something similar to the Feedback already under consideration or in development, (iii) grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute, and sublicense the Feedback, and (iv) irrevocably waive, and cause to be waived, against PunchUp and its users any claims and assertions of any moral rights contained in such Feedback. This Feedback section shall survive any termination of your Account, these Terms, the Services, any Subscriptions, or your participation in the Services.
The Services may contain links or otherwise direct you to websites, applications, products or services operated by other parties (“Third-Party Services”). If there are Third-Party Services or other resources linked on these Services, either by PunchUp or a third party such as a user of the Services, those links are provided only for the convenience of our users. We have no control over the contents of those Third-Party Services or resources, and therefore cannot accept responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any Third-Party Services linked to or otherwise referenced on the Services, you do so entirely at your own risk and subject to the terms and conditions of use for that Third-Party Service.
Term. The agreement between you and PunchUp reflected by these Terms is effective when you access the Services (for example to create an Account) and remains in effect until either you or we terminate the Terms as explicitly authorized herein.
Termination by Users. Users may terminate their Account by following the account deletion flow. We may retain data from your account as permitted by law, such as for fraud prevention purposes.
Termination by PunchUp. At any time, with or without notice, for any or no reason, PunchUp reserves the right to modify or discontinue any portion or all of the Services, and to restrict, suspend, and terminate any user's Account.
Survival. Sections 3, 5, 7-11, and 13-19 of these Terms, and any other provisions that are necessary to effectuate those sections, shall survive termination.
You agree to release and to indemnify, defend, and hold harmless PunchUp and its parents, subsidiaries, affiliates, and agents, as well as the officers, directors, employees, shareholders, and representatives of any of the foregoing entities, from and against any and all losses, liabilities, expenses, damages, costs (including attorneys' fees and court costs), claims, actions, inquiries, or investigations of any kind whatsoever arising out of or resulting from your violation of these Terms, and any of your acts or omissions that implicate publicity rights, defamation, or invasion of privacy. PunchUp reserves the right, at its own expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with PunchUp in the defense of such matter.
In the event that you have a dispute with one or more other users (including Entertainers or Fans), you release PunchUp, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or the Services. If you are a California resident, you waive California Civil Code Section 1542, which provides:
A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
If you are not a California resident, you waive your rights under any statute or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.
PUNCHUP HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. THE SERVICES AND CONTENT AVAILABLE IN THE SERVICES, INCLUDING USER CONTENT AND ENTERTAINER SITES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NEITHER PUNCHUP NOR ANY PERSON ASSOCIATED WITH PUNCHUP MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER PUNCHUP NOR ANYONE ASSOCIATED WITH PUNCHUP REPRESENTS OR WARRANTS THAT THE SERVICES OR CONTENT WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SERVICES OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. WITHOUT LIMITATION,
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OR USERS OF THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY ENTERTAINERS, FANS, OR ATTENDEES AT ENTERTAINER PERFORMANCES. YOU UNDERSTAND THAT PUNCHUP DOES NOT ENDORSE ANY ENTERTAINER, AND WE OTHERWISE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICE. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON. PUNCHUP EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY USERS OR THIRD PARTIES.
YOU WAIVE AND HOLD HARMLESS PUNCHUP FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY PUNCHUP DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER PUNCHUP OR LAW ENFORCEMENT AUTHORITIES.
WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR ACCESS TO OR USE OF THE SERVICES OR ANY THIRD-PARTY CONTENT OR WEBSITES ACCESSED THROUGH, OR IN ANY WAY IN CONJUNCTION WITH, THE SERVICES.
SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL PUNCHUP, ITS PARENTS, SUBSIDIARIES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, JOINT VENTURERS, CONSULTANTS, SUCCESSORS, OR ASSIGNS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU. THIS LIMITATION OF LIABILITY APPLIES TO ANY ALLEGED OR ACTUAL LOSSES RESULTING FROM: (a) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (b) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS; (c) ANY CONTENT OBTAINED FROM THE SERVICES, INCLUDING WITHOUT LIMITATION USER CONTENT OR ENTERTAINER SITES; AND (d) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR USER CONTENT.
THE SERVICES, INCLUDING THE CONTENT AVAILABLE WITHIN THE SERVICES, WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. THE LIMITATIONS ON DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN AND ARE MATERIAL TO PUNCHUP'S DECISION TO ENTER INTO THE AGREEMENT BETWEEN PUNCHUP AND YOU. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
THE LIMITATION OF LIABILITY DESCRIBED ABOVE SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY.
PLEASE READ THIS “ARBITRATION AND CLASS ACTION WAIVER” SECTION CAREFULLY, AS IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE OR PARTICIPATE IN A LAWSUIT FILED IN COURT.
If a dispute arises between you and PunchUp, we are committed to working with you to reach a reasonable resolution. For any such dispute, both parties acknowledge and agree that they will first make a good faith effort to resolve it informally before initiating any formal dispute resolution proceeding in arbitration or otherwise. This requires first sending a written description of the dispute to the other party. For any dispute you initiate, you agree to send the written description of the dispute along with the email address associated with your account, if any, to the following email address: email@example.com. For any dispute that PunchUp initiates, we will send our written description of the dispute to the email address associated with your Account. The written description must be on an individual basis and provide, at minimum, the following information: your name; a description of the nature or basis of the claim or dispute; and the specific relief sought. If the dispute is not resolved within sixty (60) days after receipt of the written description of the dispute, you and PunchUp agree to the further dispute resolution provisions below.
The above process for an informal dispute resolution process is required before you may commence any formal dispute resolution proceeding. The parties agree that any relevant limitations period and filing fees or other deadlines will be tolled while the parties engage in this informal dispute resolution process.
You and PunchUp agree that all claims, disputes, or disagreements that may arise out of your access or use of the Services including without limitation (i) the content available within the Services, including without limitation Entertainer Sites; (ii) these Terms (including its formation, performance, and breach); or (iii) that in any way relate to the provision or use of the Services (including without limitation communications or interactions you make as a result of your use of the Services), your relationship with PunchUp, or any other dispute with PunchUp, shall be resolved exclusively through binding arbitration in accordance with this Section 15 (collectively, the “Arbitration Agreement”). This includes claims that arose, were asserted, or involve facts occurring before the existence of this Arbitration Agreement or any prior agreement as well as claims that may arise after the termination of this Arbitration Agreement, in accordance with the notice and opt-out provisions set forth in Section 17(i). This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) in all respects and evidences a transaction involving interstate commerce. You and PunchUp expressly agree that the FAA shall exclusively govern the interpretation and enforcement of this Arbitration Agreement. If for whatever reason the rules and procedures of the FAA cannot apply, the state law governing arbitration agreements in the state in which you reside shall apply.
Except as set forth in this Section 17, the arbitrator or arbitration body, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms and this Arbitration Agreement, including, but not limited to any claim that all or any part thereof are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment). The arbitrator or arbitration body shall be empowered to grant whatever relief would be available in a court under law or in equity.
Notwithstanding the parties' decision to resolve all disputes through arbitration, each party retains the right to (i) elect to have any claims resolved in small claims court on an individual basis for disputes and actions within the scope of such court's jurisdiction, regardless of what forum the filing party initial chose; (ii) bring an action in state or federal court to protect its intellectual property rights ("intellectual property rights" in this context means patents, copyrights, moral rights, trademarks, and trade secrets and other confidential or proprietary information, but not privacy or publicity rights); and (iii) seek a declaratory judgment, injunction, or other equitable relief in a court of competent jurisdiction regarding whether a party's claims are time-barred or may be brought in small claims court. Seeking such relief shall not waive a party's right to arbitration under this agreement, and any filed arbitrations related to any action filed pursuant to this paragraph shall automatically be stayed pending the outcome of such action.
You and PunchUp agree to submit to the personal jurisdiction of any federal or state court in New York, New Yorkin order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator; and in connection with any such proceeding, further agree to accept service of process by U.S. mail and hereby waive any and all jurisdictional and venue defenses otherwise available.
Except as set forth in Section 17(c) below, if any provision of this Arbitration Agreement is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions thereof remain in full force and effect.
THE PARTIES UNDERSTAND THAT ARBITRATION MEANS THAT AN ARBITRATOR AND NOT A JUDGE OR JURY WILL DECIDE THE CLAIM, AND THAT RIGHTS TO PREHEARING EXCHANGE OF INFORMATION AND APPEALS MAY BE LIMITED IN ARBITRATION. YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU AND PUNCHUP ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
YOU AND PUNCHUP ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT AS SET OUT OTHERWISE IN THIS SECTION 17(c), ANY ARBITRATION SHALL BE CONDUCTED IN AN INDIVIDUAL CAPACITY ONLY AND NOT AS A CLASS OR OTHER CONSOLIDATED ACTION AND THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO RESOLVE AN INDIVIDUAL PARTY'S CLAIM, UNLESS PUNCHUP PROVIDES ITS CONSENT TO CONSOLIDATE IN WRITING.
If there is a final judicial determination that this Section 17(c) is not enforceable as to a particular claim or request for relief, then the parties agree that that particular claim or request for relief may proceed in court but shall be severed and stayed pending arbitration of the remaining claims. This provision does not prevent you or PunchUp from participating in a class-wide settlement of claims.
The arbitration will be administered by National Arbitration and Mediation (“NAM”) and resolved before a single arbitrator. If NAM is not available to arbitrate, the parties will select an alternative arbitration provider, but in no event shall any arbitration be administered by the American Arbitration Association. Except as modified by this "Arbitration Agreement" provision, NAM will administer the arbitration in accordance with the NAM Comprehensive Dispute Resolution Rules and Procedures, Fees For Disputes When One of the Parties is a Consumer and the Mass Filing Dispute Resolution Rules and Procedures in effect at the time any demand for arbitration is filed with NAM, excluding any rules or procedures governing or permitting class or representative actions. The applicable NAM rules and procedures are available at www.namadr.com or by emailing National Arbitration and Mediation's Commercial Dept at firstname.lastname@example.org.
Only after the parties have engaged in a good-faith effort to resolve the dispute in accordance with the Informal Dispute Resolution Procedure provision, and only if those efforts fail, then either party may initiate binding arbitration as the sole means to resolve claims using the procedures set forth in the applicable NAM rules. If you are initiating arbitration, a copy of the demand shall also be emailed to email@example.com. If PunchUp is initiating arbitration, it will serve a copy of the demand to the email address associated with your Account or the email that PunchUp has on file for you. The arbitrator has the right to impose sanctions in accordance with the NAM rules and procedures for any frivolous claims or submissions the arbitrator determines have not been filed in good faith, as well as for a party's failure to comply with the Informal Dispute Resolution Procedure contemplated by this Arbitration Agreement.
If you are a resident of the United States the arbitration will be conducted in the county where you reside, and if you are not a resident of the United States the arbitration shall be conducted in New York, New York, United States of America, unless you and PunchUp otherwise agree or unless the designated arbitrator determines that such venue would be unreasonably burdensome to any party, in which case the arbitrator shall have the discretion to select another venue. If the amount in controversy does not exceed $10,000 and you do not seek injunctive or declaratory relief, then the arbitration will be conducted solely on the basis of documents you and PunchUp submit to the arbitrator, unless the arbitrator determines that a hearing is necessary. If the amount in controversy exceeds $10,000 or seeks declaratory or injunctive relief, either party may request (or the arbitrator may determine) to hold a hearing, which shall be via videoconference or telephone conference unless the parties agree otherwise.
Subject to the applicable NAM rules and procedures, the parties agree that the arbitrator will have the discretion to allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute. Unless otherwise prohibited by law, all arbitration proceedings will be confidential and closed to the public and any parties other than you and PunchUp (and each of the parties' authorized representatives and agents), and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award (provided that the party seeking confirmation shall seek to file such records under seal to the extent permitted by law).
The arbitrator will render an award within the time frame specified in the applicable NAM rules and procedures. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the arbitral forum's rules, and this Arbitration Agreement. The parties agree that the damages and/or other relief must be consistent with the terms of the "Limitation of Liability" section of these Terms as to the types and the amounts of damages or other relief for which a party may be held liable. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Attorneys' fees will be available to the prevailing party in the arbitration only if authorized under applicable substantive law governing the claims in the arbitration.
You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise. The parties agree that NAM has discretion to reduce the amount or modify the timing of any administrative or arbitration fees due under NAM's Rules where it deems appropriate, provided that such modification does not increase the costs to you, and you further agree that you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by NAM does not constitute a default, waiver, or breach of this Arbitration Agreement while such challenge remains pending before NAM, the arbitrator, and/or a court of competent jurisdiction, and that any and all due dates for those fees shall be tolled during the pendency of such challenge.
IF YOU DO NOT WISH TO BE BOUND BY THE “ARBITRATION AGREEMENT” AS SET FORTH IN THIS SECTION 17, THEN: (1) you must notify PunchUp in writing within thirty (30) days of the date that you first accessed or otherwise become subject to this Arbitration Agreement (or any subsequent changes to the provisions of the section titled “Arbitration and Class Action Waiver”); (2) your written notification must be emailed to firstname.lastname@example.org; and (3) your written notification must include (a) your name, (b) your address, and (c) a clear statement that you wish to opt out of this Arbitration Agreement. If you do not timely opt out of this Arbitration Agreement, such action shall constitute mutual acceptance of the terms of these “Arbitration and Class Action Waiver” provisions by you and PunchUp.
PunchUp will provide thirty (30) days' notice of any changes affecting the substance of this Arbitration and Class Action Waiver section, including by posting the change on the Services, or providing any other notice in accordance with legal requirements. Any such changes will go into effect 30 days after PunchUp provides this notice and apply to all claims not yet filed. If you reject any such changes by opting out of the Arbitration Agreement, you may exercise your right to a trial by jury or judge, as permitted by applicable law, but any prior existing agreement to arbitrate disputes under a prior version of the Arbitration Agreement will not apply to claims not yet filed. If PunchUp changes this "Arbitration and Class Action Waiver" section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you agree that your continued use of the Services 30 days after such change will be deemed acceptance of those changes. If you do not agree to such change, you may opt out by providing notice as described in Section 17(i).
For any dispute not subject to arbitration or under the jurisdiction of a small claims court, you and PunchUp agree to submit to the personal and exclusive jurisdiction of any venue in the federal and state courts located in New York, New York . You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.
The Terms and the relationship between you and PunchUp shall be governed by the laws of the State of New York without regard to conflict of law provisions.
Entire Agreement. These Terms (and any additional terms, contracts, rules, and conditions that PunchUp may post on the Services) constitute the entire agreement between you and PunchUp with respect to the Services and supersede any prior agreements, oral or written, between you and PunchUp.
Waiver and Severability. If any provision(s) of the Terms is held by an arbitrator or court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties and the other provisions shall remain in full force and effect. PunchUp's failure to exercise or enforce any of the Terms shall not constitute a waiver of PunchUp's right to exercise or enforce the Terms as to the same or another instance.
Assignment. You agree that PunchUp may assign the Terms to any other entity of its choosing, with or without notice to you. You may not assign the Terms to any other party for any reason.
Section Titles. The section titles in the Terms are solely used for the convenience of the parties and have no legal or contractual significance.
Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Services or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. This statute of limitations provision does not apply to residents of New Jersey.
Notice. PunchUp may give notice by any means of communication reasonably anticipated to notify you of the information provided. You agree that all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing or be delivered in a particular manner. You agree that you have the ability to store such electronic communications such that they remain accessible to you in an unchanged form. By way of example only, such communication may be a general notice on the Services or via email to the email address listed on your Account. It is your obligation to update your Account information so that we may contact you as may be necessary. Such notice shall be deemed to have been given 48 hours after dispatch. If physical notice (e.g., US Mail) is used, then such notice shall be deemed to have been given 7 days after dispatch.
No Third-Party Beneficiaries. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.
Please contact us at email@example.com if you have questions about these Terms.