Terms of service.
TERMS OF SERVICE (Effective date: April 14th, 2021):
Welcome to CLUSTER! Please read on to learn the rules that govern your use of our website(s), mobile application, products, services, and applications (together, the “Platform”). If you have any questions, comments, or concerns regarding these terms or the Platform, please contact 2XPLR Inc. DBA Cluster (“CLUSTER” or “CLUSTER” or “we” or us”) at info@wearecluster.com. These User Terms of Use apply to end Users (each, a “User”) using the Platform. “You” refers to each of the Users (including you).
BY ACCESSING OR USING THE PLATFORM, YOU ARE AGREEING TO THESE USER TERMS OF USE (THE “TERMS”) AND CONCLUDING A LEGALLY BINDING CONTRACT BETWEEN YOU AND CLUSTER. IN ADDITION TO THE PROVISIONS SET FORTH IN THIS DOCUMENT, THE TERMS INCLUDE THE TERMS IN THE PRIVACY POLICY. YOU ONLY HAVE THE RIGHT TO USE THE PLATFORM IF YOU AGREE TO AND ACCEPT ALL OF THE TERMS. THE TERMS WILL REMAIN IN EFFECT WHILE YOU USE THE PLATFORM. THESE TERMS MAY BE CHANGED, MODIFIED OR UPDATED BY CLUSTER FROM TIME TO TIME WITHOUT ADVANCE NOTICE. YOU ACKNOWLEDGE AND AGREE THAT IF YOU CONTINUE TO USE THE PLATFORM AFTER SUCH NOTICE HAS BEEN PROVIDED YOU WILL BE BOUND BY THE REVISED TERMS. THE DATE THESE TERMS WERE LAST UPDATED IS STATED AT THE BEGINNING OF THIS DOCUMENT. YOU ARE ENCOURAGED TO REVIEW THESE TERMS PERIODICALLY FOR UPDATES AND CHANGES.
What is the CLUSTER Platform?
CLUSTER is an app that simplifies volunteering and helps Users find, create and share opportunities for social impact.
Personal Information
Accessing and using the Platform will, in most cases, require that you provide us with some personally identifying information about yourself, as more specifically detailed in our privacy policy.
Registration; Restrictions?
In order to use certain features of the Platform, you will be required to sign up for an account and select a password and username (“Account Credentials”). You promise to provide us with accurate and complete registration information.
Each User will only use the Platform for their own personal and non-commercial use, or for the use of a CLUSTER approved third party, not on behalf of or for the benefit of any unapproved third party, and only in a manner that complies with all applicable laws. We can’t and won’t be responsible for you using the Platform in a way that breaks the law.
You may not create an account, select Account Credentials, or otherwise use the Platform using any name, information, account or Account Credentials that you do not have a right to use, or using another person’s or entity’s name with the intent to impersonate that individual or entity. You may not transfer your account to any other individual or entity without our prior written permission. You will not share your account or Account Credentials with any individual or entity and will protect the security of your account and your Account Credentials. You’re responsible for any activity associated with your account.
The Platform is intended for users in the United States and is not intended, nor is it authorized, for any resident of the European Economic Area, Switzerland or United Kingdom, or any other jurisdiction. Use of the platform by those located outside the United States or who may subject CLUSTER or the Platform to laws of other jurisdictions is not permitted.
Age Requirements
The use of the Platform is intended solely for Users who are 13 years of age or older, and any registration by, use of, or access to the Platform by anyone under 13 is unauthorized. If you are 13 or older but under the age of 18, you should review these Terms with your parent or guardian to make sure that your parent or guardian understands them, agrees to be bound by them and you should only use the Platform with their permission and under their supervision. If you are a parent or guardian of a child who is at least 13 years of age but under the age of 18 and you give your child permission to use the Website, you hereby agree to the terms set forth in these Terms on behalf of both yourself and your child.
If you reside in a jurisdiction that would restrict the use of the Platform – or any of the functionalities or features offered via the Platform – because of age, or restricts the ability to enter into contracts such as this one due to age, you must abide by such age limits and you must not use the Platform if you are not permitted to do so by such local jurisdiction.
What conduct is prohibited on the Platform?
You represent, warrant, and agree that you will not contribute any User Submission or Content (each of those terms is defined one and three sections below, respectively) or otherwise use or interact with the Platform in a manner, as determined in our sole discretion, that:
Is unlawful, harmful, fraudulent, deceptive, threatening, harassing, defamatory, discriminatory, vulgar, offensive, obscene, or otherwise objectionable;
Is counter to the principles of non-discrimination, non-violence, fact-based discourse and the protection of civil liberties and civil and human rights;
Restricts or inhibits any other User from using or enjoying the Platform;
Exploits individuals in a sexual, violent, or other manner;
Impersonates any individual or entity, including any of our employees or representatives;
Includes anyone’s identification documents or sensitive information;
Jeopardizes the security of your CLUSTER account or anyone else’s (such as allowing someone else to log in to the Platform as you);
Attempts, in any manner, to obtain the password, account, or other security information from any other User;
Violates the security of any computer network, or cracks any passwords or security encryption codes;
Runs Maillist, Listserv, any form of auto-responder, or “spam” on the Platform; or any processes that run or are activated while you are not logged into the Platform; or that otherwise interfere with the proper working of the Platform (including by placing an unreasonable load on the Platform’s infrastructure);
“Crawls,” “scrapes,” or “spiders” any page, data, or portion of, or relating to, the Platform or Content (through use of manual or automated means);
Copies or stores any significant portion of the Content in a manner that is inconsistent with the intended use of the Platform;
Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Platform;
Attempts to unduly bias CLUSTER’s machine learning algorithm(s) in any way or for any reason whatsoever; or
Infringes or violates the intellectual property rights or any other rights of anyone else (including CLUSTER).
Furthermore, you agree to abide by the CLUSTER Values, listed here.
A violation of any of the foregoing is grounds for termination of your right to use or access the Platform.
What rights does CLUSTER have to the intellectual property I provide through the Platform?
You retain ownership in anything you own that you post, upload, share, store, or otherwise provide through the Platform (each your “User Submission”).
While you retain ownership of all of your User Submissions, in order to display them on the Platform, and to allow relevant Users to enjoy them (where applicable), you grant us certain rights in those User Submissions. Accordingly, you hereby grant CLUSTER an unlimited, perpetual, royalty-free license to translate, sublicense, modify (for technical purposes, for example making sure your Content is viewable on an iPhone as well as a computer), reproduce, and otherwise act with respect to all User Submissions.
More specifically:
Draft Content
* If you store a User Submission in your own CLUSTER account in a manner that is not viewable by any other User except you (a “Draft User Submission”), you grant CLUSTER the license above, as well as a license to display, perform, and distribute your Draft User Submission for the sole purpose of making it accessible to you and providing the Platform necessary to do so.
Public Submissions
* If you share a User Submission without limiting it to certain specified Users (for example, publishing an event for all Users to follow or take action on in the Platform) (a “Public User Submission”), then you grant CLUSTER the licenses above; a license to display, perform, and distribute your Public User Submission; and all other rights necessary to operate and promote the Platform (including for example, displaying a Public User Submission on a third party platform). Also, you grant all other Users a license to access that Public User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Platform (for example, a User sharing your Action on their personal social media accounts).
You agree that the licenses you grant are royalty-free, perpetual, sublicensable, irrevocable, and worldwide, provided that when you delete your CLUSTER account, we will stop displaying your User Submissions to other Users (if applicable), however your messages in group chats will continue to be displayed, but you understand and agree that it may not be possible to completely delete that content from CLUSTER’s records. Your User Submissions may also remain viewable elsewhere to the extent that they were copied or stored by other Users.
You understand and agree that CLUSTER, in performing the required technical steps to provide the Platform to our Users, may need to make changes to your User Submissions to conform and adapt them to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
We may also track and collect data regarding your usage of the Platform (“Usage Data”). In addition to the above, you grant CLUSTER a royalty-free, perpetual, sublicensable, irrevocable, and worldwide right and license to use, store, copy, create derivatives, and archive Usage Data (i) to create anonymized compilations and analyses of that Usage Data that is combined with data from numerous other Users (“Aggregate Data”), and (ii) to create, develop, and enhance algorithms, machine learning and other generally available tools in connection with CLUSTER using anonymous Usage Data. Without limiting the foregoing, Aggregate Data may include, but is not limited to information on an aggregate, anonymous basis, such as the performance of types of actions by issues, by location; the performance of actions using certain key words and/or terms; overlap of followers and action takers between Users, among other things, provided that such information shall not disclose the identity or any other sensitive, identifying information of any particular User. CLUSTER shall have exclusive ownership rights to, and the exclusive right to use and distribute, such Aggregate Data for any purpose, including, but not limited to sharing with Users that use the Platform for targeting and other purposes or to monetize the unidentifiable data to third parties. CLUSTER will not, however, distribute Aggregate Data in a manner that is identifiable to a particular User.
Except as otherwise described, CLUSTER alone will retain all intellectual property rights relating to the Platform itself (including any and all improvements, modifications or derivatives thereof) or any suggestions, ideas, enhancement requests, feedback, recommendations or other information you provide relating to the Platform, which are hereby non-exclusively, irrevocably, perpetually licensed to CLUSTER. This includes any and all system performance data and machine learning (including algorithms), and the subsequent results and output developed by CLUSTER.
Please note that all of the foregoing licenses are subject to our Privacy Policy to the extent they relate to User Submissions that are your personally identifiable information.
What if I see something on the Platform that infringes my copyright?
You may have heard of the Digital Millennium Copyright Act (the “DMCA”), as it relates to online service providers, like CLUSTER, being asked to remove material that allegedly violates someone’s copyright. We respect others’ intellectual property rights. We reserve the right to delete or disable Content alleged to be infringing or to terminate the accounts of repeat alleged infringers. To learn more about the DMCA, click here.
Procedure for Reporting Copyright Infringements. If you believe that material or content residing on or accessible through the Platform infringes your copyright (or the copyright of someone whom you are authorized to act on behalf of), please send a notice of copyright infringement containing the following information to CLUSTER’s Designated Agent to Receive Notification of Claimed Infringement (our “Designated Agent,” whose contact details are listed below):
Identification of works or materials being infringed;
Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that CLUSTER is capable of finding and verifying its existence;
Contact information about the notifier including address, telephone number and, if available, email address;
A statement that the notifier has a good faith belief that the material identified in (1)(c) is not authorized by the copyright owner, its agent, or the law; and
A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
2. Once Proper Bona Fide Infringement Notification is Received by the Designated Agent. Upon receipt of a proper notice of copyright infringement, we reserve the right to:
remove or disable access to the infringing material;
notify the content provider who is accused of infringement that we have removed or disabled access to the applicable material; and
terminate such content provider’s access to the Services if he or she is a repeat offender.
3. Procedure to Supply a Counter-Notice to the Designated Agent. If the content provider believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider believes that it has the right to post and use such material from the copyright owner, the copyright owner’s agent, or, pursuant to the law, the content provider may send us a counter-notice containing the following information to the Designated Agent:
1. A physical or electronic signature of the content provider;
2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
3. A statement that the content provider has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
4. Content provider’s name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider’s address is located, or, if the content provider’s address is located outside the United States, for any judicial district in which Company is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, CLUSTER may, in its discretion, send a copy of the counter-notice to the original complaining party informing that person that CLUSTER may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider accused of committing infringement, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Company’s discretion.
CLUSTER’s Designated Agent may be contacted at the following address:
725 S Figueroa St STE 3065 Los Angeles CA 90017-5430
How should I think about other intellectual property rights in the Platform?
The materials displayed, performed or available on or through the Platform, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions, and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. With respect to Content you own and provide through the Platform, such Content will remain protected by such laws. With respect to Content that you do not own and access through the Platform, you promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any such Content, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including CLUSTER’s) rights. We reserve the right to remove any Content from the Platform at any time, for any reason (including, but not limited to, if someone alleges you contributed such Content in violation of the Terms), at our sole discretion and without notice.
You understand that CLUSTER owns the Platform. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Platform. The Platform may allow you to copy or download certain Content; please remember that just because this functionality exists, it doesn’t mean that all the restrictions above don’t apply – they do.
Who is responsible for what I see and do on the Platform?
Any information or content publicly posted or privately transmitted through the Platform is the sole responsibility of the person from whom such content originated and, if applicable, the User or entity on whose behalf such person was acting. You access all such information and content at your own risk, and we aren’t liable for any errors or omissions in that information or content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content. You hereby release us from all liability for you having acquired or not acquired Content through the Platform. Although all Users are subject to terms of use to protect all such Users of the Platform, we cannot guarantee the identity of any individuals with whom you interact in using the Platform and are not responsible for which individuals gain access to the Platform.
You are responsible for all Content you contribute, in any manner, to the Platform, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. You will keep all your registration information accurate and current. You are responsible for all your activity in connection with the Platform.
The Platform may contain links or connections to third party websites or services that are not owned or controlled by CLUSTER. When you access third party websites or use third party services, you accept that there are risks in doing so, and that CLUSTER is not responsible for such risks. We encourage you to be aware when you leave the Platform and to read the terms and conditions and privacy policy of each third party website or service that you visit or use.
CLUSTER has no control over, and assumes no responsibility for the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites or by any third party that you interact with through the Platform. In addition, CLUSTER will not and cannot monitor, verify, censor or edit the content of any third party site or service. By using the Platform, you release and hold us harmless from any and all liability arising from your use of any third party website or service.
Your interactions with Users found on or through the Platform, including payment and delivery of goods or Platform, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such Users. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that CLUSTER shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between participants on this site, or between Users and any third party, you agree that CLUSTER is under no obligation to become involved. In the event that you have a dispute with one or more other Users, you release CLUSTER, 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 our Platform. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “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.”
What if I want to stop using the Platform?
You’re free to do that at any time, or to delete your account by going to the setting menu of CLUSTER. You can also contact us at info@wearecluster.com; please refer to our Privacy Policy, as well as the licenses above, to understand how we treat information you provide to us after you have stopped using our Platform.
CLUSTER is also free to terminate (or suspend access to) your use of the Platform or your account, for any reason in our discretion, including your breach of these Terms. CLUSTER has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account. We will try to provide advance notice to you prior to our terminating your account, but we may not do so if we determine it would be impractical, illegal, not in the interest of someone’s safety or security, or otherwise harmful to the rights or property of CLUSTER.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us.
I use the CLUSTER App available via the Apple App Store – should I know anything about that?
These Terms apply to your use of the Platform, including the iPhone application available via the Apple, Inc. (“Apple”) App Store (the “Application”), but the following additional terms also apply to the Application:
Both you and CLUSTER acknowledge that the Terms are concluded between you and CLUSTER only, and not with Apple, and that Apple is not responsible for the Application or the Content;
The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Platform for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Platform;
You will only use the Application in connection with an Apple device that you own or control;
You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
You acknowledge and agree that CLUSTER, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, CLUSTER, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
Both you and CLUSTER acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
Both you and CLUSTER acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.
What else do I need to know?
Warranty Disclaimer. Neither CLUSTER nor its licensors or suppliers makes any representations or warranties concerning any content contained in or accessed through the Platform, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Platform. We (and our licensors and suppliers) make no representations or warranties regarding suggestions or recommendations of Platform or products offered or purchased through the Platform. In particular, any recommendations to you on the CLUSTER platform are based on a machine learning algorithm based on your or others’ engagement with the Platform. The recommendations do not necessarily represent the specific opinions, preferences, or recommendations of CLUSTER as an entity or its employees, directors, or investors. Products and services purchased or offered (whether or not following such recommendations and suggestions) through the Platform are provided “AS IS” and without any warranty of any kind from CLUSTER or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). THE PLATFORM AND CONTENT ARE PROVIDED BY CLUSTER (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. 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 CLUSTER (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE LESSER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO CLUSTER IN CONNECTION WITH THE PLATFORM IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (III) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnity. To the fullest extent allowed by applicable law, you agree to indemnify and hold CLUSTER, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your use of the Platform (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder). We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Platform account, in any way (by operation of law or otherwise) without CLUSTER’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of California, without regard to the conflicts of laws provisions thereof.
Arbitration. PLEASE READ THE FOLLOWING ARBITRATION PROVISIONS CAREFULLY. IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH CLUSTER AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. Both you and CLUSTER acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, CLUSTER’s officers, directors, employees and independent contractors (“Personnel”) are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof. Any arbitration under these Terms will take place on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND CLUSTER ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION.
(a) Arbitration Rules; Applicability. Any dispute arising out of or relating to the subject matter of these Terms shall be finally settled by binding arbitration in Los Angeles County, California. The arbitration will proceed in the English language, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Platform, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction.
(b) Costs of Arbitration. The JAMS rules will govern payment of all arbitration fees and the costs will be born by each party.
(c) Small Claims Court. Furthermore, either you or CLUSTER may assert claims, if they qualify, in small claims court in Los Angeles County, California.
(d) Waiver of Jury Trial. YOU AND CLUSTER WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and CLUSTER are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and CLUSTER over whether to vacate or enforce an arbitration award, YOU AND CLUSTER WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THESE TERMS MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. You have the right to opt out of the provisions of this section by sending written notice of your decision to opt out either by email at info@wearecluster.com or by mail, postmarked within 30 days of first accepting these Terms to the following address: 725 S Figueroa St STE 3065 Los Angeles CA 90017-5430. Your notice (whether submitted via email or via mail) must include (1) your name and residence address; (2) the email address and/or telephone number associated with your account; and (3) a clear statement that you want to opt out of these Terms’ arbitration provision.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration provision permits either you or CLUSTER to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration provision will not apply to either party and both you and CLUSTER agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in Los Angeles County, California.
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Platform, provided that the CLUSTER may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and CLUSTER agree that these Terms are the complete and exclusive statement of the mutual understanding between you and CLUSTER, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of CLUSTER, and you do not have any authority of any kind to bind CLUSTER in any respect whatsoever. Except as expressly set forth in the sections above regarding arbitration and the Apple Application, you and CLUSTER agree there are no third party beneficiaries intended under these Terms.