THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND TIME LIMIT ON SUBMITTING CLAIMS THAT AFFECT YOUR RIGHTS. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.
6.1. Your Takedowns. You may remove your Products from future distribution via the Pebble Mobile App(s) at any time, but you must comply with this Agreement for any Products distributed through the Pebble Mobile App(s) prior to removal. Removing your Products from future distribution does not: (a) affect the license rights of users who have previously downloaded your Products; (b) remove your Products from Devices or from any part of the location where previously purchased or downloaded applications are stored by Pebble on behalf of users; or (c) change your obligation to deliver or support Products or services that have been previously downloaded by users.
If you remove a Product from the Pebble Mobile App(s) pursuant to clauses (i), (ii), (iii) or (iv) of this Section 6.1, and a user purchased such Product within a year before the date of takedown, at Pebble's request, you must refund to the affected user all amounts paid by such user for such affected Product.
6.2. Pebble Takedowns. While Pebble does not undertake any obligations to monitor the Products or their content, if Pebble is notified by you or otherwise becomes aware and determines in its sole discretion that a Product, or any portion thereof, or your Brand Features: (a) violates the intellectual property rights or any other rights of any third party; (b) violates any applicable law or is subject to an injunction; (c) is pornographic, obscene or otherwise violates Pebble's hosting policies or other terms of service as may be updated by Pebble from time to time in its sole discretion; (d) is being distributed by you improperly; (e) may create liability for Pebble or a third party app store provider; (f) is deemed by Pebble to have a virus or is deemed to be malware, spyware or have an adverse impact on Pebble's or a third-party communication carrier's network; (g) violates the terms of this Agreement; or (h) display of the Product is impacting the integrity of Pebble's servers (i.e., users are unable to access such content or otherwise experience difficulty), Pebble may remove the Product from the Pebble Mobile App(s) or reclassify the Product in its sole discretion. Pebble reserves the right to suspend and/or bar any developer and the related Products from the Pebble Mobile App(s) in its sole discretion.
Pebble enters into distribution agreements with device manufacturers and communication carriers to place the Pebble Mobile App(s) on the app stores for Companion Devices. These distribution agreements may require the involuntary removal of Products in violation of the Companion Device manufacturer's or communication carrier's terms of service.
At this time, Pebble does not charge any fees to upload a Product for distribution via the Pebble Mobile App(s) and does not have in place any mechanism to enable you to charge any fees for the use of your Product. If this changes in the future, Pebble will update this Agreement to reflect the changes in accordance with the terms of Section 15.
This Agreement is effective until terminated by Pebble or you as described below.
To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless Pebble, its affiliates and their respective directors, officers, employees, agents and representatives from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys' fees) arising out of or allegedly based (in whole or in part) on: (a) your use of the Pebble Mobile App(s); (b) your Product(s) (and any content contained therein); (c) any violation by you of any applicable law or regulation, including, without limitation, the violation of any privacy law or regulation; or (d) any non- compliance by you with the terms of this Agreement.
You acknowledge and agree that you will not import, export, or re-export, directly or indirectly, any commodity (including, without limitation, the Product to any country in violation of the laws and regulations of any applicable jurisdiction. This restriction expressly includes, without limitation, the export regulations of the United States, and the import and export restrictions of the various European countries. You further agree to defend, indemnify and hold harmless Pebble, its affiliates and their respective directors, officers, employees, agents and representatives from any losses, costs, claims or other liabilities arising out of your breach of this Section 13.
Definitions. As used in this Arbitration Provision, the terms " Pebble ," "we," "us," and "our" refer to Pebble Technology Corp., including its subsidiaries and agents; the terms " you" and " your" refer to you as an individual as well as other individuals you allow to access or use the Products, and any legal entity you control, work for, or represent when you access or use the Products. The word " Products" means your access to and/or use of any Pebble website, advertisement or promotion and any product, service, or software that you obtain from or through Pebble. The word "Claims" means all claims, disputes, or controversies between you and us of any nature or kind, whether pre-existing, present, or future, that arise from or relate to the Products. This includes but is not limited to disagreements about the validity, enforceability, or scope of this Arbitration Provision.
Informal Efforts to Resolve Dispute. If a dispute arises between you and Pebble, you should first attempt to resolve it by sending an email to firstname.lastname@example.org or by sending the details of your complaint, including your contact information for a response, to the address or fax number listed below. We will attempt in good faith to resolve all Claims submitted this way within fifteen (15) days of receipt.
Agreement to Arbitrate; Right to Opt Out. If informal efforts to resolve Claims fail or are not used, you agree that any and all Claims will be resolved exclusively by binding arbitration as described herein, except that: (i)you may assert Claims in a small claims court in the United States if your Claims meet the court's jurisdictional requirements; and (ii) either party may pursue Claims and relief in a court of competent jurisdiction regarding the validity and/or infringement of a party's intellectual property rights.
There is no judge or jury in arbitration, and court review of an arbitration award is very limited. However, an arbitrator can award to you on an individual basis the same damages and forms of relief as a court could (including injunctive and declaratory relief as well as statutory damages), and must follow the law and terms of this Agreement as a court would. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions and private attorney general actions are not permitted.
IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY PEBBLE IN WRITING WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST ACCEPT OR HAVE ACCESS TO THIS AGREEMENT BY MAILING OR FAXING AN OPT-OUT REQUEST TO OUR CUSTOMER SERVICE CENTER LISTED BELOW. YOUR WRITTEN NOTIFICATION MUST INCLUDE YOUR NAME, ADDRESS, the email address you used to register with PEBBLE, AND A clear STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH us THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH us OR THE DELIVERY OF PRODUCTS TO YOU by us. IF YOU HAVE PREVIOUSLY NOTIFIED us OF YOUR DECISION TO OPT OUT OF ARBITRATION, YOU DO NOT NEED TO DO SO AGAIN.
Arbitration Fees. The allocation and payment of all filing, administration and arbitrator fees will be governed by the JAMS's rules which limit the amount a consumer is required to pay. If the arbitrator determines that your Claims are not frivolous applying the standards of the Federal Rules of Civil Procedure, we agree to reimburse you the amount of all filing, administration and arbitrator fees you are required to pay for the arbitration.
Arbitration Rules. The arbitration will be conducted by the JAMS ("JAMS") under its rules if you are a resident of the United States; if your use of the Products has been principally for personal or household use, the JAMS' procedures for consumer-related disputes including the minimum fairness standards will also apply. If you are a resident of a country other than the United States, the arbitration will be conducted by the JAMS in San Francisco, California, under its rules for international arbitration, and you and we agree to submit to the personal jurisdiction of the U.S. federal court in San Francisco, California in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. In the event of a conflict or inconsistency between the applicable arbitration rules and this Arbitration Provision, this Arbitration Provision shall govern and control.
The arbitration will be conducted in the English language by a single arbitrator who is an attorney-at-law with at least fifteen years' experience in consumer and technology transactions and who is also a member of the JAMS roster of arbitrators. If you and we can't agree on a mutually acceptable arbitrator within fifteen (15) days after the arbitration is initiated, then the JAMS will pick a neutral arbitrator who meets the qualifications. The JAMS rules are available at http://www.jamsadr.com , or by calling 1- 800 – 352- 5267 from inside the United States or +44 207 583 9808 from outside the United States.
Initiating Arbitration. To begin an arbitration proceeding, you must follow the procedures specified by the applicable JAMS rules as described on their website at http://www.jamsadr.com.
Time Restriction. YOU MUST FILE A COMPLAINT WITH JAMS OR A PERMITTED COURT WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A CLAIM, OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS OR DISPUTE.
Arbitration Process. Because appearing in person for arbitration can be unduly burdensome in the circumstances, arbitration under this Arbitration Provision shall not require any personal appearance by the parties or witnesses unless mutually agreed. Either or both parties may participate by written submissions, telephone calls, or other means of remote communication as allowed by the arbitrator. The arbitration proceedings will be conducted in the English language at a location designated by the JAMS that is the most convenient for you.
The arbitration can only decide Claim(s) between you and us, and may not consolidate or join the claims of other persons that may have similar claims. There shall be no pre-arbitration discovery except as provided for in the applicable JAMS rules. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information.
In conducting the arbitration proceeding, the arbitrator will apply the law of the State of California (without regard to its conflicts of law provisions) including U.S. federal law for matters covered by federal law (_e.g. _the Federal Arbitration Act). The confidentiality provisions of this Agreement will be enforceable under the provisions of the California Uniform Trade Secrets Act, California Civil Code Section 3426, as amended. At the request of any party, the arbitrator shall provide a brief written explanation of the basis for the decision and award. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator's decision will be final and binding on the parties except for any right to appeal under the JAMS rules or the Federal Arbitration Act.
Recovery and Attorneys' Fees. If the arbitrator rules in your favor on the merits of any Claim you bring against us and issues you an award that is greater in monetary value than our last written settlement offer made to you before written submissions are made to the arbitrator, then we will (i) pay you 150% of your arbitration damages award, up to $1,000 over and above your damages award; and (ii) pay your attorneys, if any, the amount of attorneys' fees, and reimburse any expenses (including expert witness fees and costs) that you or your attorney reasonably incurred for investigating, preparing, and pursuing your Claim in arbitration. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of such 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. The right to attorneys' fees and expenses discussed above supplements any right to attorneys' fees and expenses you may have under applicable law, although you may not recover duplicative awards of attorneys' fees or costs. If your use of the Products was principally for personal or household use, neither party will be entitled to any award of punitive or special damages and Pebble waives any right it may have to seek an award of attorneys' fees and expenses from you in connection with any arbitration of Claims between us.
Confidentiality. You and we shall keep confidential any information exchanged during the arbitration as well as the decision of the arbitrator made with respect to any Claim(s) arbitrated under this Arbitration Provision and, with the exception of disclosure to your or our attorneys, accountants, auditors, and other legal or financial advisors, neither party shall disclose such information or decision to any other person unless required to do so by law.
Continuing Obligation to Arbitrate; Severability. This Arbitration Provision shall survive termination of your access to or use of any Products and related agreements. If any portion of this Arbitration Provision is deemed invalid or unenforceable at law, such invalid or unenforceable provision will be interpreted, construed or reformed to the extent required to make it valid and enforceable, and this shall not invalidate the remaining portions of this Arbitration Provision.
Pebble Customer Service Center Address:
Pebble Technology Corp.
900 Middlefield Road, 5th Floor
Redwood City, CA 94063
Fax Number: (650) 618-1683
Pebble may make changes to this Agreement at any time by sending you notice by email describing the modifications made. Pebble will also post a notification on the Pebble web site. The changes will become effective, and will be deemed accepted by you: (a) immediately for those who first register with a Pebble Developer Account after the notification is posted; or (b) upon your acceptance of the modified Agreement for pre-existing developers; provided, however, that changes required by law will be deemed to be accepted and effective upon any use by you of the Pebble Mobile App(s) to distribute your Products after Pebble posts notice of such change. In the event that you do not agree with the modifications to the Agreement within thirty (30) days after the date the email is sent, then your rights under this Agreement will terminate automatically, which termination will be your sole and exclusive remedy.
This Agreement is not assignable or transferable, in whole or in part, by you, whether involuntarily, by merger, operation of law or otherwise without Pebble's prior written consent. Any amalgamation or merger of a party with any third party, or the purchase or all or substantially all of the assets of a party, will be deemed an assignment requiring consent. Any attempted transfer in violation of this section is void. A waiver of any default hereunder or of any of the terms and conditions of this Agreement will not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but will apply solely to the instance to which such waiver is directed. The exercise of any right or remedy provided in this Agreement will be without prejudice to the right to exercise any other right or remedy provided by law or equity, except as expressly limited by this Agreement. Captions in this Agreement are for the convenience of the parties only and will not affect the interpretation or construction of this Agreement. In the event any provision of this Agreement is held to be invalid or unenforceable, such provision will be severed from the remainder of this Agreement, and such remainder will remain in force and effect. The parties agree to replace any such invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision. This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior and/or simultaneous representations, discussions, negotiations and agreements relating to the Pebble Mobile App(s), whether written or oral.