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Terms of Use
Updated January 1, 2024
These terms of service constitute a legally binding agreement (the “Agreement”) between you and Saymemo, Inc. (“Saymemo,” “we,” “us” or “our”) governing your use of the Saymemo application, website, and technology platform (collectively, the “Saymemo Platform”).
PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS YOU AND SAYMEMO HAVE AGAINST EACH OTHER CAN BE BROUGHT (SEE SECTION 17 BELOW). THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST SAYMEMO TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING. AS A BUSINESS, YOU HAVE AN OPPORTUNITY TO OPT OUT OF ARBITRATION WITH RESPECT TO CERTAIN CLAIMS AS PROVIDED IN SECTION 17.
By entering into to this Agreement, you expressly acknowledge that you understand this Agreement (including the dispute resolution and arbitration provisions Section 17) and accept all its terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE SAYMEMO PLATFORM.
The Saymemo Platform
The Saymemo Platform provides a marketplace where persons who seek services (“users”) can be matched with persons driving to or through those destinations (“businesses”). businesses and customers are collectively referred to herein as “Users,” and each User shall create a User account that enables access to the Saymemo Platform. For purposes of this Agreement, the services provided by businesses to users that are matched through the Platform shall be referred to collectively as the “Services”. Any decision by a User to offer or accept Services is a decision made in such User’s sole discretion. Each Service provided by a business to a user shall constitute a separate agreement between such persons.
Modification to the Agreement
When Saymemo modifies the terms and conditions of this Agreement, such modifications shall be binding on you only upon your acceptance of the modified Agreement. Saymemo reserves the right to modify any information referenced in the hyperlinks from this Agreement from time to time, and such modifications shall become effective upon posting. Continued use of the Saymemo Platform or Services after any such changes shall constitute your consent to such changes. Unless material changes are made to the arbitration provisions herein, you agree that modification of this Agreement does not create a renewed opportunity to opt out of arbitration (if applicable).
Eligibility
The Saymemo Platform may only be used by individuals who can form legally binding contracts under applicable law. The Saymemo Platform is not available to children (persons under the age of 18) or Users who have had their User account temporarily or permanently deactivated. By becoming a User, you represent and warrant that you are at least 18 years old and that you have the right, authority and capacity to enter into and abide by the terms and conditions of this Agreement. You may not allow other persons to use your User account, and you agree that you are the sole authorized user of your account.
By becoming a User, you agree to receive communications from us, including via e-mail, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from Saymemo, its affiliated companies and/or businesses, may include but are not limited to: operational communications concerning your User account or use of the Saymemo Platform or Services, updates concerning new and existing features on the Saymemo Platform, communications concerning promotions run by us or our third- party partners, and news concerning Saymemo and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send.
Your Information
Your Information is any information you provide, publish or post to or through the Saymemo (including any profile information you provide) or send to other Users (including via in-application feedback, any email feature, or through any Saymemo-related Facebook, Twitter or other social media posting) (your “Information”). You consent to us using your Information to create a User account that will allow you to use the Saymemo Platform and participate in the Services. Our collection and use of personal information about our Platform and Services is as provided in Saymemo’s Privacy Policy located on our app under help. You are solely responsible for your Information and your interactions with other members of the public, and we act only as a passive conduit for your online posting of your Information. You agree to provide and maintain accurate, current and complete information and that we and other members of the public may rely on your Information as accurate, current and complete. To enable Saymemo to use your Information, you grant to us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable, sub-licensable (through multiple tiers) right and license to exercise the copyright, publicity, and database rights you have in your Information, and to use, copy, perform, display and distribute such Information to prepare derivative works, or incorporate into other works, such Information, in any media now known or not currently known. Saymemo does not assert any ownership over your Information; rather, as between you and Saymemo, subject to the rights granted to us in this Agreement, you retain full ownership of all your Information and any intellectual property rights or other proprietary rights associated with your Information.
You may be able to create or log-in to your Saymemo User account through online accounts you may have with third party social networking sites (each such account, an “SNS Account”). By connecting to Saymemo through an SNS Account, you understand that Saymemo may access, store, and make available any SNS Account content according to the permission settings of your SNS Account (e.g., friends, mutual friends, contacts or following/followed lists (the “SNS Content”)). You understand that SNS Content may be available on and through the Saymemo Platform to other Users. Unless otherwise specified in this Agreement, all SNS Content, if any, shall be your Information.
Promotions and Referral Programs
Saymemo, at its sole discretion, may make available promotions with different features to any Users or prospective Users. These promotions, unless made to you, shall have no bearing whatsoever on your Agreement or relationship with Saymemo. Saymemo reserves the right to withhold or deduct credits or benefits obtained through a promotion the event that Saymemo determines or believes that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion terms or this Agreement.
As part of your User account, Saymemo may provide you with or allow you to create a “Saymemo Code,” a unique alphanumeric code for you to distribute to friends, family and other persons (each a “Referred User”) to become new Saymemo users (“Referred users”) or businesses (“Referred businesses”). Saymemo Codes may only be distributed for promotional purposes and must be given away free of charge. You may not sell, trade, or barter your Saymemo Code. You are prohibited from advertising Saymemo Codes, including but not limited to: Google, Facebook, Twitter, Bing and Craigslist. Saymemo reserves the right to deactivate or invalidate any Saymemo Code at any time in Saymemo’s discretion.
From time to time, Saymemo may offer you with incentives to refer new Users to the Saymemo community (the “Referral Program”). These incentives may come in the form of Saymemo Credits, and Saymemo may set or change the incentive types, amounts, terms, restrictions, and qualification requirements for any incentives in its sole discretion. Your distribution of Saymemo Codes and participation in the Referral Program is subject to this Agreement and the additional Referral Program rules.
Restricted Activities
With respect to your use of the Saymemo Platform and your participation in the Services, you agree that you will not:
impersonate any person or entity;
stalk, threaten, or otherwise harass any person, or carry any weapons;
violate any law, statute, rule, permit, ordinance or regulation;
interfere with or disrupt the Services or the Saymemo Platform or the servers or networks connected to the Saymemo Platform;
post Information or interact on the Saymemo Platform or Services in a manner which is false, inaccurate, misleading (directly or by omission or failure to update information), defamatory, libelous, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, or illegal;
use the Saymemo Platform in any way that infringes any third party’s rights, including but not limited to: intellectual property rights, copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
post, email or otherwise transmit any malicious code, files or programs designed to interrupt, damage, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or surreptitiously intercept or expropriate any system, data or personal information;
forge headers or otherwise manipulate identifiers to disguise the origin of any information transmitted through the Saymemo Platform;
“frame” or “mirror” any part of the Saymemo Platform, without our prior written authorization or use meta tags or code or other devices containing any reference to us to direct any person to any other web site for any purpose; or
modify, adapt, translate, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Saymemo Platform or any software used on or for the Saymemo Platform;
rent, lease, lend, sell, redistribute, license or sublicense the Saymemo Platform or access to any portion of the Saymemo Platform;
use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, scrape, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Saymemo Platform or its contents;
link directly or indirectly to any other web sites;
transfer or sell your User account, password and/or identification to any other party
discriminate against or harass anyone based on race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or
cause any third party to engage in the restricted activities above.
Driver Representations, Warranties and Agreements
By providing Services as a business on the Saymemo Platform, you represent, warrant, and agree that:
You possess a valid driver’s license and are authorized and medically fit to operate a motor vehicle and have all appropriate licenses, approvals and authority to provide services to users in all jurisdictions in which you provide Services.
You own, or have the legal right to operate, the vehicle you use when providing Services, and such vehicle is in good operating condition and meets the industry safety standards and all applicable statutory and state department of motor vehicle requirements for a vehicle of its kind.
You have legal right to use any products or tools to conduct business and ensure safety when providing your service to any users.
You will not engage in reckless behavior while providing your service, perform unsafely, provide Services as a business while under the influence of alcohol or drugs, or take action that harms or threatens to harm the safety of the Saymemo community or third parties.
You will not make any misrepresentation regarding Saymemo, the Saymemo Platform, the Services or your status as a business.
You will not, while providing the Services, operate as a different service provider charge for services not agreed to users, demand that a user pay in cash, or use a credit card reader, such as a Square Reader, to accept payment or engage in any other activity in a manner that is inconsistent with your obligations under this Agreement.
You will not attempt to defraud Saymemo or users on the Saymemo Platform or about your provision of Services. If we suspect that you have engaged in fraudulent activity we will report any activity to authorities.
All intellectual property rights in the Saymemo Platform shall be owned by Saymemo absolutely and in their entirety. These rights include and are not limited to database rights, copyright, design rights (whether registered or unregistered), trademarks (whether registered or unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same. All other trademarks, logos, service marks, company or product names set forth in the Saymemo Platform are the property of their respective owners. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information (“Submissions”) provided by you to us are non-confidential and shall become the sole property of Saymemo. Saymemo shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
Saymemo and other Saymemo logos, designs, graphics, icons, scripts and service names are registered trademarks, trademarks or trade dress of Saymemo in the United States and/or other countries (collectively, the “Saymemo Marks”). If you provide Services as a business, Saymemo grants to you, during the term of this Agreement, and subject to your compliance with the terms and conditions of this Agreement, a limited, revocable, non-exclusive license to display and use the Saymemo Marks solely about providing the Services through the Saymemo Platform (“License”). The License is non-transferable and non-assignable, and you shall not grant to any third party any right, permission, license or sublicense with respect to any of the rights granted hereunder without Saymemo’s prior written permission, which it may withhold in its sole discretion. The Saymemo Marks may not be used in any manner that is likely to cause confusion.
You acknowledge that Saymemo is the owner and licensor of the Saymemo Marks, including all goodwill associated therewith, and that your use of the Saymemo Marks will confer no additional interest in or ownership of the Saymemo Marks in you but rather inures to the benefit of Saymemo. You agree to use the Saymemo Marks strictly in accordance with Saymemo’s Trademark Usage Guidelines, as may be provided to you and revised from time to time, and to immediately cease any use that Saymemo determines to nonconforming or otherwise unacceptable.
You agree that you will not: (1) create any materials that incorporate the Saymemo Marks or any derivatives of the Saymemo Marks other than as expressly approved by Saymemo in writing; (2) use the Saymemo Marks in any way that tends to impair their validity as proprietary trademarks, service marks, trade names or trade dress, or use the Saymemo Marks other than in accordance with the terms, conditions and restrictions herein; (3) take any other action that would jeopardize or impair Saymemo’s rights as owner of the Saymemo Marks or the legality and/or enforceability of the Saymemo Marks, including, without limitation, challenging or opposing Saymemo’s ownership in the Saymemo Marks; (4) apply for trademark registration or renewal of trademark registration of any of the Saymemo Marks, any derivative of the Saymemo Marks, any combination of the Saymemo Marks and any other name, or any trademark, service mark, trade name, symbol or word which is similar to the Saymemo Marks; (5) use the Saymemo Marks on or in connection with any product, service or activity that is in violation of any law, statute, government regulation or standard.
Violation of any provision of this License may result in immediate termination of the License, in Saymemo’s sole discretion. If you create any materials bearing the Saymemo Marks (in violation of this Agreement or otherwise), you agree that upon their creation Saymemo exclusively owns all right, title and interest in and to such materials, including without limitation any modifications to the Saymemo Marks or derivative works based on the Saymemo Marks. You further agree to assign any interest or right you may have in such materials to Saymemo, and to provide information and execute any documents as reasonably requested by Saymemo to enable Saymemo to formalize such assignment.
Saymemo respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials on the Saymemo Platform or Services infringe upon your copyrights, please visit Copyright Policy page for information on how to make a copyright complaint.
Disclaimers
The following disclaimers are made on behalf of Saymemo, our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, and shareholders.
Saymemo does not provide business services. It is up to the business to decide whether to offer a service to a user contacted through the Saymemo Platform, and it is up to the User to decide whether to accept a service from any business contacted through the Saymemo Platform. We cannot ensure that a business or User will complete an arranged service. We have no control over the quality or safety of the business transactions that might occurs because of the Services.
The Saymemo Platform is provided on an “as is” basis and without any warranty or condition, express, implied or statutory. We do not guarantee and do not promise any specific results from use of the Saymemo Platform and/or the Services, including the ability to provide or receive Services at any given location or time. We specifically disclaim any implied warranties of title, merchantability, fitness for a purpose and non-infringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.
We do not warrant that your use of the Saymemo Platform or Services will be accurate, complete, reliable, current, secure, uninterrupted, always available, or error- free, or will meet your requirements, that any defects in the Saymemo Platform will be corrected, or that the Saymemo Platform is free of viruses or other harmful components. We disclaim liability for, and no warranty is made with respect to, connectivity and availability of the Saymemo Platform or Services.
We cannot guarantee that each user is who he or she claims to be. Please use common sense when using the Saymemo Platform and Services, including looking at the photos of the business or user you have matched with to make sure it is the same individual you see in person. Please note that there are also risks of dealing with underage persons or people acting under false pretense, and we do not accept responsibility or liability for any content, communication or other use or access of the Saymemo Platform by persons under the age of 18 in violation of this Agreement. We encourage you to communicate directly with each potential business or user prior to engaging in an arranged service providing.
Saymemo is not responsible for the conduct, whether online or offline, of any User of the Saymemo Platform or Services. You are solely responsible for your interactions with other Users. We do not procure insurance for, nor are we responsible for, personal belongings in your location of service. By using the Saymemo Platform and participating in the Services, you agree to accept such risks and agree that Saymemo is not responsible for the acts or omissions of Users on the Saymemo Platform or participating in the Services.
Saymemo expressly disclaims any liability arising from the unauthorized use of your User account. Should you suspect that any unauthorized party may be using your User account or you suspect any other breach of security, you agree to notify us immediately.
It is possible for others to obtain information about you that you provide, publish or post to or through the Saymemo Platform (including any profile information you provide), send to other Users, or share during the Services, and to use such information to harass or harm you. We are not responsible for the use of any personal information that you disclose to other Users on the Saymemo Platform or through the Services. Please carefully select the type of information that you post on the Saymemo Platform or through the Services or release to others. We disclaim all liability, regardless of the form of action, for the acts or omissions of other Users (including unauthorized users, or “hackers”).
Opinions, advice, statements, offers, or other information or content concerning Saymemo or made available through the Saymemo Platform, but not directly by us, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. Under no circumstances will we be responsible for any loss or damage resulting from your reliance on information or other content posted by third parties, whether on the Saymemo Platform or otherwise. We reserve the right, but we have no obligation, to monitor the materials posted on the Saymemo Platform and remove any such material that in our sole opinion violates, or is alleged to violate, the law or this agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Users or others.
Location data provided by the Saymemo Platform is for basic location purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither Saymemo, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data tracked or displayed by the Saymemo Platform. Any of your Information, including geolocation data, you upload, provide, or post on the Saymemo Platform may be accessible to Saymemo and certain Users of the Saymemo Platform.
Saymemo advises you to use the Saymemo Platform with a data plan with unlimited or very high data usage limits, and Saymemo shall not responsible or liable for any fees, costs, or overage charges associated with any data plan you use to access the Saymemo Platform.
This paragraph applies to any version of the Saymemo Platform that you acquire from the Apple App Store. This Agreement is entered between you and Saymemo. Apple, Inc. (“Apple”) is not a party to this Agreement and shall have no obligations with respect to the Saymemo Platform. Saymemo, not Apple, is solely responsible for the Saymemo Platform and the content thereof as set forth hereunder. However, Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement. Upon your acceptance of this Agreement, Apple shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof. This Agreement incorporates by reference Apple’s Licensed Application End User License Agreement, for purposes of which, you are “the end-user.” In the event of a conflict in the terms of the Licensed Application End User License Agreement and this Agreement, the terms of this Agreement shall control.
State and Local Disclosures
Certain jurisdictions require additional disclosures to you. You can view any disclosures required by your local jurisdiction. We will soon create a page for update of disclosures as jurisdictions add, remove or amend these required disclosures, so please check in regularly.
Indemnity
You will defend, indemnify, and hold Saymemo including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your use of the Saymemo Platform and participation in the Services, including: (1) your breach of this Agreement or the documents it incorporates by reference; (2) your violation of any law or the rights of a third party, including, without limitation, businesses and users as a result of your own interaction with such third party; (3) any allegation that any materials that you submit to us or transmit through the Saymemo Platform or to us infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.
Limitation of Liability
IN NO EVENT WILL SAYMEMO, INCLUDING OUR AFFILIATES, SUBSIDIARIES, PARENTS, SUCCESSORS AND ASSIGNS, AND EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SHAREHOLDERS (COLLECTIVELY “SAYMEMO” FOR PURPOSES OF THIS SECTION), BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE SAYMEMO PLATFORM, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE SAYMEMO PLATFORM, THE SERVICES, OR THIS AGREEMENT, HOWEVER ARISING INCLUDING NEGLIGENCE, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE SAYMEMO PLATFORM MAY BE USED BY YOU TO REQUEST SERVICES FROM BUSINESSES, GOODS, OR OTHER SERVICES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT SAYMEMO HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY SERVICES OR GOODS PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THEIR TERMS. CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
Term and Termination
This Agreement is effective upon your creation of a User account. This Agreement may be terminated: a) by User, without cause, upon seven (7) days’ prior written notice to Saymemo; or b) by either Party immediately, without notice, upon the other Party’s material breach of this Agreement, including but not limited to any breach of Section 9 or breach of Section 10(a) through (I) of this Agreement. In addition, Saymemo may terminate this Agreement or deactivate your User account immediately in the event: (1) you no longer qualify to provide Services, rule, permit, ordinance or regulation; (2) you fall below Saymemo’s star rating or cancellation threshold; (3) Saymemo has the good faith belief that such action is necessary to protect the safety of the Saymemo community or third parties, provided that in the event of a deactivation pursuant to (1)-(3) above, you will be given notice of the potential or actual deactivation and an opportunity to attempt to cure the issue to Saymemo’s reasonable satisfaction prior to Saymemo permanently terminating the Agreement. For all other breaches of this Agreement, you will be provided notice and an opportunity to cure the breach. If the breach is cured in a timely manner and to Saymemo’s satisfaction, this Agreement will not be permanently terminated. Sections 2, 6, 7 (with respect to the license), 11-12, 14-19, and 21 shall survive any termination or expiration of this Agreement.
DISPUTE RESOLUTION AND ARBITRATION AGREEMENT
(an) Agreement to Binding Arbitration Between You and Saymemo.
YOU AND Saymemo MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, as set forth below. This agreement to arbitrate (“Arbitration Agreement”) is governed by the Federal Arbitration Act and survives after the Agreement terminates or your relationship with Saymemo ends. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Except as expressly provided below, this Arbitration Agreement applies to all Claims (defined below) between you and Saymemo, including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders.
Except as expressly provided below, ALL DISPUTES AND CLAIMS BETWEEN US (EACH A “CLAIM” AND COLLECTIVELY, “CLAIMS”) SHALL BE EXCLUSIVELY RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN YOU AND SAYMEMO. These Claims include, but are not limited to, any dispute, claim or controversy, whether based on past, present, or future events, arising out of or relating to: this Agreement and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof), the Saymemo Platform, the Services, any other goods or services made available through the Saymemo Platform, your relationship with Saymemo, the threatened or actual suspension, deactivation or termination of your User Account or this Agreement, payments made by you or any payments made or allegedly owed to you, any promotions or offers made by Saymemo, any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, emotional distress, breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Saymemo and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU AND SAYMEMO ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT. This Arbitration Agreement is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except for those claims and disputes which by the terms of this Arbitration Agreement are expressly excluded from the requirement to arbitrate.
(b) Prohibition of Class Actions and Non-Individualized Relief.
YOU UNDERSTAND AND AGREE THAT YOU AND SAYMEMO MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS (“CLASS ACTION WAIVER”). YOU UNDERSTAND AND AGREE THAT YOU AND SAYMEMO BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. NOTWITHSTANDING THE FOREGOING, THIS SUBSECTION (B) SHALL NOT APPLY TO REPRESENTATIVE PRIVATE ATTORNEYS GENERAL ACT CLAIMS BROUGHT AGAINST SAYMEMO, WHICH ARE ADDRESSED SEPARATELY IN SECTION 17(C).
The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, the class, collective, and/or representative action on such Claims must be litigated in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
(c) Representative PAGA Waiver.
Notwithstanding any other provision of this Agreement or the Arbitration Agreement, to the fullest extent permitted by law: (1) you and Saymemo agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under the California PAGA, both you and Saymemo agree that any such dispute shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “representative PAGA Waiver”). Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement; and (iii) any such representative PAGA or other representative private attorneys general act claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the Parties agree that litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.
(d) Rules Governing the Arbitration.
Any arbitration conducted pursuant to this Arbitration Agreement shall be administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules that are in effect at the time the arbitration is initiated, as modified by the terms set forth in this Agreement. Copies of these rules can be obtained at the AAA’s website (www.adr.org) (the “AAA Rules”) or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding.
As part of the arbitration, both you and Saymemo will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim. The arbitrator may award any individualized remedies that would be available in court. 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 claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Users or businesses, but is bound by rulings in prior arbitrations involving the same User or business to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction.
(e) Arbitration Fees and Awards.
The payment of filing and arbitration fees will be governed by the relevant AAA Rules subject to the following modifications:
If you initiate arbitration under this Arbitration Agreement after participating in the optional Negotiation process described in subsection (k) below and are otherwise required to pay a filing fee under the relevant AAA Rules, Saymemo agrees that, unless your claim is for $5,000 or more, your share of the filing and arbitration fees is limited to $50, and that, after you submit proof of payment of the filing fee to Saymemo, Saymemo will promptly reimburse you for all but $50 of the filing fee. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the claim is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules.
If Saymemo initiates arbitration under this Arbitration Agreement, Saymemo will pay all AAA filing and arbitration fees.
With respect to any Claims brought by Saymemo against a business, or for Claims brought by a business against Saymemo that: (A) are based on an alleged employment relationship between Saymemo and a business; (B) arise out of, or relate to, Saymemo’s actual deactivation of a business user account or a threat by Saymemo to deactivate a business User account; (C) arise out of, or relate to, Saymemo’s actual termination of a business Agreement with Saymemo under the termination provisions of this Agreement, or a threat by Saymemo to terminate a business Agreement or Saymemo promotions, or consumer-type disputes (the subset of Claims in subsections (A)-(C) shall be collectively referred to as (“business Claims”), Saymemo shall pay all costs unique to arbitration (as compared to the costs of adjudicating the same claims before a court), including the regular and customary arbitration fees and expenses (to the extent not paid by Saymemo pursuant to the fee provisions above). However, if you are the party initiating the business Claim, you shall be responsible for contributing up to an amount equal to the filing fee that would be paid to initiate the claim in the court of general jurisdiction in the state in which you provide Services to users, unless a lower fee amount would be owed by you pursuant to the AAA Rules, applicable law, or subsection (e)(1) above. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator.
Except as provided in Federal Rule of Civil Procedure 68 or any state equivalents, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the claim(s) were litigated in a court such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.).
At the end of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to you if you prevail, to the extent authorized by applicable law.
Although under some laws Saymemo may have a right to an award of attorneys’ fees and non-filing fee expenses if it prevails in an arbitration, Saymemo agrees that it will not seek such an award.
If the arbitrator issues you an award that is greater than the value of Saymemo’s last written settlement offer made after you participated in good faith in the optional Negotiation process described in subsection (j) below, then Saymemo will pay you the amount of the award or U.S. $1,000, whichever is greater.
(f) Location and Manner of Arbitration.
Unless you and Saymemo agree otherwise, any arbitration hearings between Saymemo and a User will take place in the county of your billing address, and any arbitration hearings between Saymemo and a business will take place in the county in which the business provides Services. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration. If your Claim is for $10,000 or less, Saymemo agrees 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 determined by the AAA Rules. If your Claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules.
(g) Exceptions to Arbitration.
This Arbitration Agreement shall not require arbitration of the following types of claims: (1) small claims actions brought on an individual basis that are within the scope of such small claims court’s jurisdiction; (2) a representative action brought on behalf of others under PAGA or other private attorneys general acts, to the extent the representative PAGA Waiver in Section 17(c) of such action is deemed unenforceable by a court of competent jurisdiction; (3) claims for workers’ compensation, state disability insurance and unemployment insurance benefits; and (4) claims that may not be subject to arbitration as a matter of law.
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party’s obligation to exhaust administrative remedies before making a claim in arbitration, however you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint and instead may seek such relief only through arbitration under this Agreement. Nothing in this Agreement or Arbitration Agreement prevents your participation in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision.
(h) Severability.
In addition to the severability provisions in subsections (c) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
(i) Business claims in Pending Settlement.
If you are a member of a putative class in a lawsuit against Saymemo involving businesses Claims and a Motion for Preliminary Approval of a Settlement has been filed with the court in that lawsuit prior to this Agreement’s effective date (a “Pending Settlement Action”), then this Arbitration Agreement shall not apply to your Business Claims in that particular class action. Instead, your Business Claims in that Pending Settlement Action shall continue to be governed by the arbitration provisions contained in the applicable Agreement that you accepted prior to this Agreement’s effective date.
(j) Opting Out of Arbitration for Business Claims That Are Not In a Pending Settlement Action.
As a Business, you may opt out of the requirement to arbitrate Business Claims defined in Section 17(e)(3) (except as limited by Section 17(i) above) pursuant to the terms of this subs