Last Updated: 07.16.2020
By using our Services, you agree to be bound by these Terms. If you don't agree to be bound by these Terms, do not use the Services.
The Services are provided by Dipsea whose office is at 3004 16th St., San Francisco, CA, 94103, USA.
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND DIPSEA THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 16 "DISPUTE RESOLUTION" BELOW FOR DETAILS REGARDING ARBITRATION (INCLUDING THE RELEVANT EXCEPTIONS AND THE PROCEDURE TO OPT OUT OF ARBITRATION). PLEASE NOTE THAT THE PROVISIONS ON ARBITRATION DO NOT APPLY TO USERS IN THE EUROPEAN UNION.
We may update the Terms at any time, in our sole discretion. If we do so, we'll let you know either by posting the updated Terms on the Site and/or App or through other communications. It's important that you review the Terms whenever we update them or you use the Services. If you continue to use the Services after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you don't agree to be bound by the updated Terms, then, except as otherwise provided in Section 16(f) "Effect of Changes on Arbitration," (which shall not be applicable to users in the European Union) you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and (except if prohibited by law) without notice, at our sole discretion.
You may use the Services only if you are 18 years or older (or have reached the age of majority in the jurisdiction where you reside) and are capable of forming a binding contract with Dipsea and are not barred from using the Services under applicable law.
If you want to use certain features of the Services you'll have to create an account ("Account"). You can do this via the Site or App.
It's important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information to keep it accurate, complete and up-to-date. If you don't, we might have to suspend or terminate your Account. You agree that you won't disclose your Account password to anyone and you'll notify us immediately of any unauthorized use of your Account. You're responsible for all activities that occur under your Account, whether or not you know about them.
We welcome feedback, comments and suggestions for improvements to the Services ("Feedback"). You can submit Feedback by emailing us at firstname.lastname@example.org. You grant to us a non-exclusive, transferable, worldwide, perpetual, irrevocable, fully-paid, royalty-free license, with the right to sublicense, under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
We may let you listen to some of Content for free when you sign up for an Account. To access more of our Content and certain features of our Services, you must purchase a subscription ("Subscription"). You can find additional information about pricing for our Subscriptions in the Apple App Store in your Account Settings (if you subscribed via the Apple App), in the Google Play Store (if you subscribed via Google Play Store App) or on our Site (if you subscribed via the Site).
When you purchase a Subscription (a "Transaction"), you expressly authorize us (or our third-party payment processor) to charge you for such Transaction. We may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, "Payment Information"). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, and click on the Purchase button, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information).
You may purchase a Subscription with an annual or monthly renewal period, and you may select this at the point you make your Subscription. If you purchase a Subscription, you will be charged the annual or monthly Subscription fee, which will be inclusive of all applicable taxes, and other charges ("Subscription Fee"), at the beginning of your Subscription and each applicable yearly or monthly renewal period thereafter, at the then-current Subscription Fee. Please note that your Subscription will automatically renew, until it is cancelled. If you purchase an annual Subscription, we (or our third-party payment processor) will automatically charge you each year on the anniversary of the commencement of your Subscription, using the Payment Information you have provided until you cancel your Subscription. If you purchase a monthly Subscription, we (or our third-party payment processor) will automatically charge you each month on the calendar day corresponding to the commencement of your Subscription, using the Payment Information you have provided until you cancel your Subscription. In the event your Subscription began on a day not contained in a given month, your payment method will be charged on a day in the applicable month or such other day as we deem appropriate. For example, if you started your Subscription on January 31st, your next payment date is likely to be February 28th, and your payment method would be billed on that date. If you have an annual Subscription, Dipsea will send you a reminder at least fourteen (14) days prior to each renewal with the then-current Subscription Fee. By agreeing to these Terms and electing to purchase a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or Dipsea. Your Subscription continues until cancelled by you or we terminate your access to or use of the Services or Subscription in accordance with these Terms.
You may change your Subscription from annual to monthly, or vice versa, by following the instructions on our Site (if you purchased your Subscription via the Site) or the App (if you purchased via the App). If you make such a change, your payment date may also change. If you change from a Monthly Subscription to an Annual Subscription, on your next payment date, you will be charged the then-current Subscription Fee for an Annual Membership, and your Annual Subscription will renew on an annual basis. If you change from an Annual Subscription to a Monthly Subscription, at the next renewal date for your Annual Subscription, you will be charged the then-current Subscription Fee for a Monthly Membership, and your Monthly Subscription will renew on a Monthly basis.
Upon completion of the Transaction you will receive an email confirmation from us and immediately be able to access the Content. Where you access the Content you will have no right to repayment of any Subscription Fees and you acknowledge and agree that you waive any right to a refund of such Subscription Fees.
YOUR PURCHASE IS FINAL AND YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. But if something unexpected happens in the course of completing a Transaction, we reserve the right to cancel your Transaction for any reason; if we cancel your Transaction we'll refund any payment you have already remitted to us for such Transaction. Without limiting the foregoing, you may cancel your Subscription at any time, but please note that such cancellation will be effective at the end of the then-current Subscription period. To cancel, you can follow the instructions on our Site if you signed up via the Site, or the instructions in the applicable App Store if you signed up via our App. You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If you cancel, your right to use the Services will continue until the end of your then current subscription period and will then terminate without further charges.
For purposes of these Terms, "Content" means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services. Subject to your compliance with these Terms, Dipsea grants to you a limited, nonexclusive, non-transferable license, with no right to sublicense, to view and listen to the Content solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes.
Subject to your compliance with these Terms, Dipsea grants to you a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. You may not copy the App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (i) copy, translate, modify or create derivative works based on the App; (ii) distribute, transfer, communicate, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means. Dipsea reserves all rights in and to the App not expressly granted to you under these Terms.
The following terms apply to any App accessed through or downloaded from any app store or distribution platform (like the Apple App Store or Google Play) where the App may now or in the future be made available (each an "App Provider"). You acknowledge and agree that:
You agree not to do any of the following:
Submit or transmit any Content that: (i) infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
Use, display, mirror or frame the Services or any individual element within the Services, Dipsea's name, any Dipsea trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Dipsea's express written consent;
Access, tamper with, or use non-public areas of the Services, Dipsea's computer systems, or the technical delivery systems of Dipsea's providers;
Attempt to probe, scan or test the vulnerability of any Dipsea system or network or breach any security or authentication measures;
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Dipsea or any of Dipsea's providers or any other third party (including another user) to protect the Services or Content;
Attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Dipsea or other generally available third-party web browsers;
Use any meta tags or other hidden text or metadata utilizing a Dipsea trademark, logo URL or product name without Dipsea's express written consent;
Use the Services or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive or false source-identifying information;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
Impersonate or misrepresent your affiliation with any person or entity;
Violate any applicable law or regulation; or
Encourage or enable any other individual to do any of the foregoing.
Although we're not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
The Services (including the App) may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
To the extent permitted by applicable law, we may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. Where we terminate the Services other than as a result of your breach of these Terms, we will give you a pro rata refund of any portion of unused Subscription Fees. You may cancel your Account at any time by sending an email to us at email@example.com or through your Account Settings Page in the Apple App Store, or through your Subscriptions page in the Google Play Store. Upon any termination, discontinuation or cancellation of the Services or your Account, the following Sections will survive: 5, 7, 12, and 14-17.
The laws of some jurisdictions do not permit the exclusion of implied or legal warranties, so some of the following disclaimers may not apply to you. TO THE EXTENT PERMITTED BY LAW, THE SERVICES AND CONTENT ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. To the extent permitted by law, we make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.
You will indemnify and hold harmless Dipsea and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services or Content or (ii) your violation of these Terms.
The laws of some jurisdictions do not permit certain limitations or exclusions of liability, so some of the following limitations may not apply to you. TO THE EXTENT PERMITTED BY APPLICABLE LAW:
NEITHER DIPSEA NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT DIPSEA OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT WILL DIPSEA'S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO DIPSEA FOR USE OF THE SERVICES OR CONTENT OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO DIPSEA, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DIPSEA AND YOU.
Notwithstanding anything to the contrary set out in clause 14(a)-(c) above, nothing in these Terms shall limit or exclude our liability to you for:
death or personal injury caused by our negligence;
fraud or fraudulent misrepresentation; or
any other liability that, by law, cannot be limited or excluded.
These Terms shall be governed by English law, except that if you are a consumer and live in a country of the European Union, other than England, there may be certain mandatory applicable laws of your country which apply for your benefit and protection in addition to or instead of certain provisions of English law. You agree that any dispute between us regarding these Terms will be dealt with only by the English courts, except that if you are a consumer and you live in a country of the European Union other than England, you can chose to bring legal proceedings either in your country or in England, but if we bring proceedings we may only do so in your country.
The European Online Dispute Resolution platform ec.europa.eu/consumers/odr/ provides information about alternative dispute resolution which may be of interest but we are under no legal obligation to use this platform. It is a requirement that this information is provided but neither of us have an obligation to use the platform.
These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 16 "Dispute Resolution," the exclusive jurisdiction for all Disputes (defined below) that you and Dipsea are not required to arbitrate will be the state and federal courts located in the Northern District of California, and you and Dipsea each waive any objection to jurisdiction and venue in such courts.
This section is subject to applicable law and may not apply to you.
Subject to applicable law, we each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, "Disputes") will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. For residents of the United States, you and Dipsea agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Dipsea are each waiving the right to a trial by jury or to participate in a class action. For residents of Canada, you and Dipsea agree that the arbitration legislation of your province or territory governs the interpretation and enforcement of these Terms. This arbitration provision shall survive termination of these Terms.
As limited exceptions to Section 16(a) above: (i) you may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights. In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by email at firstname.lastname@example.org within thirty (30) days following the date you first agree to these Terms.
The arbitration will be conducted by the American Arbitration Association ("AAA") under its Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
If your claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in the county (or parish or Canadian municipality) where you live, unless we both agree to a different location. For users in Canada, If the AAA is unable to facilitate an arbitration hearing within a reasonable distance from the Canadian municipality where you live, Dipsea agrees to arbitration through the arbitration service that is closest to your residence; In such circumstances, if you and Dipsea cannot agree on arbitral rules to apply, the arbitrator shall select the rules that the arbitrator, in his or her sole discretion, deems to be best suited for the fair and efficient resolution of the dispute and, to the extent that you and Dipsea cannot agree on an arbitrator, the arbitration service shall appoint one.The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. We'll pay for all filing, administration and arbitrator fees and expenses if your Dispute is for less than $10,000, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we'll pay all of our attorneys' fees and costs and won't seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses to the extent provided under applicable law.
YOU AND DIPSEA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND, SUBJECT TO APPLICABLE LAW, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties' dispute is resolved through arbitration, the arbitrator may not consolidate another person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
Notwithstanding the provisions of Section 3 "Changes to Terms or Services" above, if Dipsea changes any of the terms of this Section 16 "Dispute Resolution" after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to email@example.com) within 30 days of the date such change became effective, as indicated in the "Last Updated" date above or in the date of Dipsea's email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Dipsea in accordance with the terms of this Section 16 "Dispute Resolution" as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
With the exception of any of the provisions in Section 16(e) of these Terms ("Class Action Waiver"), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
These Terms constitute the entire and exclusive understanding and agreement between Dipsea and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Dipsea and you regarding the Services and Content. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Dipsea's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Dipsea may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Dipsea under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Dipsea's failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Dipsea. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
If you have any questions about these Terms or the Services, please contact Dipsea at firstname.lastname@example.org.