If you are a US resident, this EULA shall apply.
PLEASE NOTE: THESE TERMS AND CONDITIONS CONTAIN A BINDING ARBITRATION PROVISION THAT REQUIRES DISPUTES FOR USERS IN THE U.S. AND CERTAIN OTHER COUNTRIES TO BE ARBITRATED ON AN INDIVIDUAL BASIS, AND PROHIBITS CLASS ACTION CLAIMS. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE TERMS AND CONDITIONS "ARBITRATION AND CLASS WAIVER" SECTION. BY ACCEPTING THESE TERMS AND CONDITIONS, YOU AGREE TO BE BOUND BY THIS ARBITRATION PROVISION AND CLASS ACTION WAIVER. PLEASE READ IT CAREFULLY. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
Last Updated: Sept 23, 2019
Table of Contents
- User Requirements
- Rules and Restrictions
- User Submissions
- Ratings, Reviews and other User Feedback
- Content; License
- Copyright and Intellectual Property Rights
- Changes to the Services
- Costs and Fees
- Purchases; Pricing
- Refunds, Exchanges and Related
- Rewards, Credits and Hype Cash
- Ending Our Relationship
- iOS Apps & Special Terms
- Changes to Terms
- WARRANTY DISCLAIMER. THIS DISCLAIMER SECTION IS AN ESSENTIAL PART OF THESE TERMS.
- LIMITATION OF LIABILITY
1.1 OmniX Digital, Inc. and its corporate affiliates: (i) operate online marketplaces, including Hype ("Marketplace Apps") that may be available as native apps for operating systems like Android or iOS, or on standard or mobile web; (ii) develop and provide other services and products. In this policy we refer to OmniX Digital and its corporate affiliates as "OmniX Digital" or "we" or "us." We refer to end users as "you" and the entities that list and sell items as "Merchant(s)."
1.2 You are contracting with OmniX Digital, Inc., a U.S. company, and these Terms govern your use of the Services.
The OmniX Digital entity you contract with may change as we expand our business.
1.3 The Marketplace Apps allow sellers ("Merchants") to set up stores that list and sell items to end users. When you purchase an item, the contract for sale is solely between you and the Merchant. That means that when you purchase an item on Hype or another Marketplace App, you are making a purchase from the Merchant who listed the item and the Merchant is responsible for fulfilling your order.
2.1 OmniX Digital operates marketplaces that allow Merchants and users to share information and complete purchases. Merchants are responsible for their stores, their items, their item listings (including any original or strike-through prices), and fulfillment of your order. Merchants may be located in your country or region or elsewhere. If they are located elsewhere, this may have an effect on taxes, customs or the applicability of consumer protection rules.
2.2 Although we are not a party to the contract formed between you and a Merchant when you make a purchase, we may assist with payment processing, returns, refunds, and other customer service. OmniX Digital does not guarantee (i) the existence, quality, safety, suitability, or legality of Merchant items or item listings; (ii) the truth or accuracy of any item listing, description or other content provided by Merchants; (iii) the truth or accuracy of ratings, reviews, or other User Submissions; or (iv) the performance or conduct of Merchants or other third parties. Except if we clearly indicate otherwise, OmniX Digital does not endorse any Merchant, store, item, or item listing. Please read labels, warnings and directions provided with a purchased item before using it and consider doing your own research prior to making a purchase.
2.3 You should make whatever investigation you feel necessary or appropriate before making a purchase from any Merchant.
2.4 Although OmniX Digital, Inc. may also represent itself as merchant on the platform, selling products from its global supplier network to you through the Hype app.
3. User Requirements
3.1 In order to use the Services, you must be 13 years old or older (or the age of consent set by applicable law) and be of legal age to form a binding contract (or if not, you've received your parent's or guardian's permission to use the Services and gotten your parent or guardian to agree to these Terms on your behalf). Products for children's use may be sold by Merchants; however, these Products are intended for sale to adults. Certain products may be intended for individuals of certain ages or "mature audiences" only. By ordering such items, you certify that you are old enough to view, use or own such mature items. OmniX Digital has no liability to you for third party content that you find to be offensive, indecent, or objectionable.
3.2 You are not permitted to use the Services if: (a) You cannot enter into a binding contract with OmniX Digital; (b) You are located in a country embargoed by the United States or if you are on a U.S. Agency list of prohibited persons or entities, such as the Treasury Department's list of Specially Designated Nationals; or (c) you have previously been banned from using any of our Services, unless we have reversed that ban, in our sole discretion.
3.3 You may be required to create an account, and select a password and phone number. You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your phone number, a number that you don't have the right to use, or another person's phone number with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
4. Rules and Restrictions
4.1 You agree to use the Services for your own internal and personal use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with these Terms, applicable marketplace policies and all laws that apply to you. If your use of the Services (including a purchase of any items on the Services) is prohibited by any applicable laws, then you aren't authorized to use the Services. We are not responsible if you use the Services in a way that breaks the law.
4.2 You will not share your account or password with anyone, and you must protect the security of your account and your password. You will notify OmniX Digital immediately of any unauthorized use of your password or any other breach of the security of your account. You're responsible for any activity associated with your account.
4.3 You must not create multiple accounts and you must not let others use your account.
4.5 When accessing or using the Services, you agree to:
a. Abide by all laws, rules, regulations, these Terms, and all OmniX Digital policies;
b. Only purchase items you are legally able to purchase in your jurisdiction;
c. Only use (or attempt to use) the Services through interfaces provided by OmniX Digital; and
Comply with the instructions in any robots.txt file present on the Services.
When accessing or using the Services, you agree not to:
a. Infringe or violate the intellectual property rights or any other rights of anyone else.
b. Violate these Terms, OmniX Digital policies, or any law or regulation, including any applicable export control laws;
c. Engage in activity that is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
d. Circumvent any terms, policies or rules set forth on the Services including those relating to any promotion, contest or program on the Services;
e. Collect personal data from users of the Services or use any such information found on the Services;
f. Engage in activity that jeopardizes the security of your account or anyone else's (such as allowing someone else to log in to the Services as you);
g. Attempt, in any manner, to obtain the password, account, or other security information from any other user;
h. Use a third party's credentials, conceal your true IP address, or otherwise impersonate or misrepresent your identity, your affiliation with any person or entity;
i. Violate the security of any computer network, or crack any passwords or security encryption codes;
j. Run Maillist, Listserv, any form of auto-responder or "spam" on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services' infrastructure);
k. "Crawl," "scrape," or "spider" any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
l. Copy or store any significant portion of the Content;
m. Decompile, reverse engineer, or otherwise attempt to obtain the source code or underlying ideas or information of or relating to the Services;
n. Attempt to buy any Prohibited Items;
o. Abuse any promotions, discounts or other benefits offered by Hype or Merchants, including farming or harvesting of discounts or promotion codes; or
p. Attempt to do anything, or permit, encourage, assist, or allow any third party to do anything, prohibited in this list of items, or attempt, permit, encourage, assist, or allow any other violation of these Terms. In addition to any other remedies available to us, including without limitation monetary and nonmonetary damages, a violation of any of the foregoing is grounds for: adjustment of prices/amounts due; cancellation of one or more purchases; suspension or termination of your right to access or use the Services.
q. Access or use the Services if you are not fully able and legally competent to agree to these Terms or are authorized to use the Services by your parent or legal guardian;
r. Make unauthorised copies, modify, adapt, translate, reverse engineer, disassemble, decompile or create any derivative works of the Services or any content included therein, including any files, tables or documentation (or any portion thereof) or determine or attempt to determine any source code, algorithms, methods or techniques embodied by the Services or any derivative works thereof;
s. Distribute, license, transfer, or sell, in whole or in part, any of the Services or any derivative works thereof
t. Market, rent or lease the Services for a fee or charge, or use the Services to advertise or perform any commercial solicitation;
u. Use the Services, without our express written consent, for any commercial or unauthorized purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming;
v. Interfere with or attempt to interfere with the proper working of the Services, disrupt our website or any networks connected to the Services, or bypass any measures we may use to prevent or restrict access to the Services;
w. Incorporate the Services or any portion thereof into any other program or product. In such case, we reserve the right to refuse service, terminate accounts or limit access to the Services in our sole discretion;
x. Use automated scripts to collect information from or otherwise interact with the Services;
y. Impersonate any person or entity, or falsely state or otherwise misrepresent you or your affiliation with any person or entity, including giving the impression that any content you upload, post, transmit, distribute or otherwise make available emanates from the Services;
z. Intimidate or harass another, or promote sexually explicit material, violence or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
aa. Use or attempt to use another’s account, service or system without authorisation from OmniX Digital, or create a false identity on the Services;
ab. Use the Services in a manner that may create a conflict of interest or undermine the purposes of the Services, such as trading reviews with other users or writing or soliciting fake reviews;
ac. Use the Services to upload, transmit, distribute, store or otherwise make available in any way: files that contain viruses, trojans, worms, logic bombs or other material that is malicious or technologically harmful;
ad. Any unsolicited or unauthorised advertising, solicitations, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other prohibited form of solicitation;
ae. Any private information of any third party, including addresses, phone numbers, email addresses, number and feature in the personal identity document (e.g., National Insurance numbers, passport numbers) or credit card numbers;
af. Any material which does or may infringe any copyright, trademark or other intellectual property or privacy rights of any other person;
ag. Any material which is defamatory of any person, obscene, offensive, pornographic, hateful or inflammatory;
ah. Any material that would constitute, encourage or provide instructions for a criminal offence, dangerous activities or self-harm;
ai. Any material that is deliberately designed to provoke or antagonise people, especially trolling and bullying, or is intended to harass, harm, hurt, scare, distress, embarrass or upset people;
aj. Any material that contains a threat of any kind, including threats of physical violence;
ak. Any material that is racist or discriminatory, including discrimination on the basis of someone’s race, religion, age, gender, disability or sexuality;
al. Any answers, responses, comments, opinions, analysis or recommendations that you are not properly licensed or otherwise qualified to provide; or
am. Material that, in the sole judgment of OmniX Digital, is objectionable or which restricts or inhibits any other person from using the Services, or which may expose OmniX Digital, the Services or its users to any harm or liability of any type.
In addition to the above, your access to and use of the Services must, at all times, be compliant with our Community Guidelines.
We reserve the right, at any time and without prior notice, to remove or disable access to content at our discretion for any reason or no reason. Some of the reasons we may remove or disable access to content may include finding the content objectionable, in violation of these Terms or our Community Guidelines, or otherwise harmful to the Services or our users. Our automated systems analyze your content (including emails) to provide you personally relevant product features, such as customized search results, tailored advertising, and spam and malware detection. This analysis occurs as the content is sent, received, and when it is stored.
5.2 Your purchases are fulfilled by Merchants. In order to fulfill your purchases, Merchants need information about the purchaser, such as mailing address. Merchants may be located in your country or region or elsewhere. You acknowledge that when you make a purchase, OmniX Digital treats it as a request (from you) to share your information, including name, street address and phone number, with the relevant Merchant to, for example facilitate shipping, and that such sharing may cause a transfer of personal data from one region to another..
6.1 OmniX Digital may communicate with you using email or autodialed or prerecorded calls and text messages, at any telephone number that you provide us, to: (i) notify you regarding your account; (ii) troubleshoot problems with your account; (iii) resolve a dispute; (iv) collect a debt; (v) poll your opinions through surveys or questionnaires; or (vi) as otherwise necessary to service your account or enforce these Terms, our policies, applicable law, or any other agreement we may have with you.
6.2 If you would like to receive marketing via mobile texts and alerts, you may sign up to do so, including on a checkout page for purchasing an item in the Marketplace Apps. By signing up, you provide your consent to receive recurring autodialed marketing texts or other mobile messages from or on behalf of us at the mobile number you've provided. You understand that consent is not a condition of purchase. Message and data rates may apply. If you would like to be removed from the Hype marketing text list, you can follow the instructions provided in those messages or reply STOP to any Hype sms/text. If you have any questions, you may reply HELP to Hype sms/text alerts or contact customer care at firstname.lastname@example.org.
6.3 OmniX Digital may route these communications through a third party service provider, and we or the service provider may record telephone conversations you have with OmniX Digital or its agents for quality control and training purposes, or for our own protection.
7. User Submissions
7.1 Anything you post, upload, share, store, or otherwise provide through the Services is a "User Submission." User Submissions may include suggestions, comments, ideas, improvements, or other feedback or materials, and may be viewable by other users. In order to display your User Submissions on the Services, and to allow other users to enjoy them (where applicable), you grant us certain rights in those User Submissions.
7.2 For all User Submissions, you hereby grant OmniX Digital a royalty-free, perpetual, non-exclusive, transferable, sublicensable, worldwide license to use, store, display, reproduce, save, modify (e.g. for technical purposes, such as making sure your submission is viewable on an iPhone as well as a computer), create derivative works, perform, distribute, translate or otherwise act with respect to such User Submissions as we determine is necessary to operate, market and advertise the Services, including to present, display or perform such User Submission in accordance with your preferences.
7.3 If you choose to submit User Submissions, OmniX Digital will consider such Submissions to be non-confidential and non-proprietary. OmniX Digital shall have no obligations concerning the User Submissions, and OmniX Digital will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit the User Submissions in any manner, without any restriction or compensation to you.
8. Ratings, Reviews and other User Feedback
8.1 Ratings and reviews and photos, videos or other content about items and stores ("Feedback") generated by users on our Services are User Submissions that are not endorsed by OmniX Digital and do not represent the views of OmniX Digital. OmniX Digital does not assume liability for Feedback or for any claims for economic loss resulting from such ratings and reviews. Because we expect users to maintain a high level of integrity with respect to ratings and reviews posted through the Services, you agree: (i) to base any rating or review you post only on your first-hand experience with the applicable Merchant, product, or service; (ii) you will not provide a rating or review for any Merchant, product, or service with respect to which you have a competitive, ownership or other economic interest, employment relationship or other affiliation; (iii) you will prominently indicate if your review was sponsored or paid for in any way; and (iv) your review will comply with these Terms. We reserve the right to exclude such Feedback for any reason or no reason, without notice to you. For example, we may exclude Feedback if we determine, in our sole discretion, that any rating or review could diminish the integrity of the ratings and reviews.
8.2 You agree that if you participate in a Hype community or group and get special access to features or items or receive free items directly from Hype, and you want to post publicly about those free items and your experiences with them, then you shall comply that you (a) write honestly about your actual experience with the product; and (b) disclose all material information, such as (where applicable) that you received the item for free.
9. Content; License
9.1 The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions, Feedback (all of the foregoing, the "Content") may be protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won't use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you: (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else's rights (including OmniX Digital's).
9.2 HYPE and the Hype logo are trademarks of OmniX Digital, Inc., registered in the U.S. Patent and Trademark Office and in other countries. All rights reserved.
9.3 You understand that OmniX Digital owns or licenses the Services. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works based on, or otherwise exploit any of the Services, except as expressly provided in this section 9.
9.4 Subject to your compliance with these Terms and applicable policies, rules or guidelines, and your payment of any applicable fees, OmniX Digital or its content providers grant you a limited, non-exclusive, non-transferable, non-sublicensable license to access and make personal and non-commercial use of the Services. All rights not expressly granted to you in these Terms or any policies or guidelines are reserved and retained by OmniX Digital or its licensors, suppliers, publishers, rightsholders, or other content providers. The licenses granted by OmniX Digital terminate if you do not comply with these Terms or the applicable policies, rules or guidelines.
9.5 OmniX Digital Content
9.5.1 As between you and OmniX Digital, all content, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music on and “look and feel” of the Services, and all intellectual property rights related thereto (the “OmniX Digital Content”), are either owned or licensed by OmniX Digital, it being understood that you or your licensors will own any User Content (as defined below) you upload or transmit through the Services. Use of the OmniX Digital Content or materials on the Services for any purpose not expressly permitted by these Terms is strictly prohibited. Such content may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed or otherwise exploited for any purpose whatsoever without our or, where applicable, our licensors’ prior written consent. We and our licensors reserve all rights not expressly granted in and to their content.
9.5.2 You acknowledge and agree that we may generate revenues, increase goodwill or otherwise increase our value from your use of the Services, including, by way of example and not limitation, through the sale of advertising, sponsorships, promotions, usage data and Gifts (defined below), and except as specifically permitted by us in these Terms or in another agreement you enter into with us, you will have no right to share in any such revenue, goodwill or value whatsoever. You further acknowledge that, except as specifically permitted by us in these Terms or in another agreement you enter into with us, you (i) have no right to receive any income or other consideration from any User Content (defined below) or your use of any musical works, sound recordings or audiovisual clips made available to you on or through the Services, including in any User Content created by you, and (ii) are prohibited from exercising any rights to monetize or obtain consideration from any User Content within the Services or on any third party service ( e.g. , you cannot claim User Content that has been uploaded to a social media platform such as YouTube for monetization).
9.5.3 Subject to the terms and conditions of the Terms, you are hereby granted a non-exclusive, limited, non-transferable, non-sublicensable, revocable, worldwide license to access and use the Services, including to download the Platform on a permitted device, and to access the OmniX Digital Content solely for your personal, non-commercial use through your use of the Services and solely in compliance with these Terms. OmniX Digital reserves all rights not expressly granted herein in the Services and the OmniX Digital Content. You acknowledge and agree that OmniX Digital may terminate this license at any time for any reason or no reason.
NO RIGHTS ARE LICENSED WITH RESPECT TO SOUND RECORDINGS AND THE MUSICAL WORKS EMBODIED THEREIN THAT ARE MADE AVAILABLE FROM OR THROUGH THE SERVICE.
9.5.4 You acknowledge and agree that when you view content provided by others on the Services, you are doing so at your own risk. The content on our Services is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content on our Services.
9.5.5 We make no representations, warranties or guarantees, whether express or implied, that any OmniX Digital Content (including User Content) is accurate, complete or up to date. Where our Services contain links to other sites and resources provided by third parties, these links are provided for your information only. We have no control over the contents of those sites or resources. Such links should not be interpreted as approval by us of those linked websites or information you may obtain from them. You acknowledge that we have no obligation to pre-screen, monitor, review, or edit any content posted by you and other users on the Services (including User Content).
9.6 User-Generated Content
9.6.1 Users of the Services may be permitted to upload, post or transmit (such as via a stream) or otherwise make available content through the Services including, without limitation, any text, photographs, user videos, sound recordings and the musical works embodied therein, including videos that incorporate locally stored sound recordings from your personal music library and ambient noise (“User Content”). Users of the Services may also extract all or any portion of User Content created by another user to produce additional User Content, including collaborative User Content with other users, that combine and intersperse User Content generated by more than one user. Users of the Services may also overlay music, graphics, stickers and other elements provided by Hype App onto this User Content and transmit this User Content through the Services. The information and materials in the User Content, including User Content that includes OmniX Digital Elements, have not been verified or approved by us. The views expressed by other users on the Services (including through use of the virtual gifts) do not represent our views or values.
9.6.2 Whenever you access or use a feature that allows you to upload or transmit User Content through the Services (including via certain third party social media platforms such as Instagram, Facebook, YouTube, Twitter), or to make contact with other users of the Services, you must comply with the standards set out at “Your Access to and Use of Our Services” above. You may also choose to upload or transmit your User Content, including User Content that includes OmniX Digital Elements, on sites or platforms hosted by third parties. If you decide to do this, you must comply with their content guidelines as well as with the standards set out at “Your Access to and Use of Our Services” above. As noted above, these features may not be available to all users of the Services, and we have no liability to you for limiting your right to certain features of the Services.
9.6.3 You warrant that any such contribution does comply with those standards, and you will be liable to us and indemnify us for any breach of that warranty. This means you will be responsible for any loss or damage we suffer as a result of your breach of warranty.
9.6.4 Any User Content will be considered non-confidential and non-proprietary. You must not post any User Content on or through the Services or transmit to us any User Content that you consider to be confidential or proprietary. When you submit User Content through the Services, you agree and represent that you own that User Content, or you have received all necessary permissions, clearances from, or are authorised by, the owner of any part of the content to submit it to the Services, to transmit it from the Services to other third party platforms, and/or adopt any third party content.
9.6.5 If you only own the rights in and to a sound recording, but not to the underlying musical works embodied in such sound recordings, then you must not post such sound recordings to the Services unless you have all permissions, clearances from, or are authorised by, the owner of any part of the content to submit it to the Services
9.6.6 You or the owner of your User Content still own the copyright in User Content sent to us, but by submitting User Content via the Services, you hereby grant us an unconditional irrevocable, non-exclusive, royalty-free, fully transferable, perpetual worldwide licence to use, modify, adapt, reproduce, make derivative works of, publish and/or transmit, and/or distribute and to authorise other users of the Services and other third-parties to view, access, use, download, modify, adapt, reproduce, make derivative works of, publish and/or transmit your User Content in any format and on any platform, either now known or hereinafter invented.
9.6.7 You further grant us a royalty-free license to use your user name, image, voice, and likeness to identify you as the source of any of your User Content; provided, however, that your ability to provide an image, voice, and likeness may be subject to limitations due to age restrictions.
9.6.8 For the avoidance of doubt, the rights granted in the preceding paragraphs of this Section include, but are not limited to, the right to reproduce sound recordings (and make mechanical reproductions of the musical works embodied in such sound recordings), and publicly perform and communicate to the public sound recordings (and the musical works embodied therein), all on a royalty-free basis. This means that you are granting us the right to use your User Content without the obligation to pay royalties to any third party, including, but not limited to, a sound recording copyright owner (e.g., a record label), a musical work copyright owner (e.g., a music publisher), a performing rights organization (e.g., ASCAP, BMI, SESAC, etc.) (a “PRO”), a sound recording PRO (e.g., SoundExchange), any unions or guilds, and engineers, producers or other royalty participants involved in the creation of User Content.
9.7 Specific Rules for Musical Works and for Recording Artists. If you are a composer or author of a musical work and are affiliated with a PRO, then you must notify your PRO of the royalty-free license you grant through these Terms in your User Content to us. You are solely responsible for ensuring your compliance with the relevant PRO’s reporting obligations. If you have assigned your rights to a music publisher, then you must obtain the consent of such music publisher to grant the royalty-free license(s) set forth in these Terms in your User Content or have such music publisher enter into these Terms with us. Just because you authored a musical work (e.g., wrote a song) does not mean you have the right to grant us the licenses in these Terms. If you are a recording artist under contract with a record label, then you are solely responsible for ensuring that your use of the Services is in compliance with any contractual obligations you may have to your record label, including if you create any new recordings through the Services that may be claimed by your label.
9.8 Through-To-The-Audience Rights.All of the rights you grant in your User Content in these Terms are provided on a through-to-the-audience basis, meaning the owners or operators of third party services will not have any separate liability to you or any other third party for User Content posted or used on such third party service via the Services.
9.9 Waiver of Rights to User Content.By posting User Content to or through the Services, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any User Content you Post to or through the Services.
9.9.1 We also have the right to disclose your identity to any third party who is claiming that any User Content posted or uploaded by you to our Services constitutes a violation of their intellectual property rights, or of their right to privacy.
9.9.2 We, or authorised third parties, reserve the right to cut, crop, edit or refuse to publish, your content at our or their sole discretion. We have the right to remove, disallow, block or delete any posting you make on our Services if, in our opinion, your post does not comply with the content standards set out at “Your Access to and Use of Our Services”above. In addition, we have the right – but not the obligation – in our sole discretion to remove, disallow, block or delete any User Content (i) that we consider to violate these Terms, or (ii) in response to complaints from other users or third parties, with or without notice and without any liability to you. As a result, we recommend that you save copies of any User Content that you post to the Services on your personal device(s) in the event that you want to ensure that you have permanent access to copies of such User Content. We do not guarantee the accuracy, integrity, appropriateness or quality of any User Content, and under no circumstances will we be liable in any way for any User Content.
9.9.3 You control whether your User Content is made publicly available on the Services to all other users of the Services or only available to people you approve. To restrict access to your User Content, you should select the privacy setting available within the Platform.
9.9.4 We accept no liability in respect of any content submitted by users and published by us or by authorised third parties.
9.9.5 If you wish to complain about information and materials uploaded by other users please contact us at: email@example.com.
9.9.6 OmniX Digital takes reasonable measures to expeditiously remove from our Services any infringing material that we become aware of.It is OmniX Digital’s policy, in appropriate circumstances and at its discretion, to disable or terminate the accounts of users of the Services who repeatedly infringe copyrights or intellectual property rights of others.
9.9.7 While our own staff is continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the user community. If you choose to contribute by sending us or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to us, you agree that:
9.9.8 OmniX Digital has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
9.9.9 Feedback is provided on a non-confidential basis, and we are not under any obligation to keep any Feedback you send confident pial or to refrain from using or disclosing it in any way; and
9.9.10 You irrevocably grant us perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
10. Copyright and Intellectual Property Rights
10.1 We respect others' intellectual property rights and ask you to do the same. We reserve the right to delete or disable Content alleged to be infringing, and to terminate the accounts of repeat alleged infringers. As a condition of your access to and use of the Services, you agree to the terms of the Copyright Dispute Policy. To learn how to report potentially infringing content, click here. To learn more about the DMCA, click here.
11.1 Any information or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such information or Content originated. 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, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can't guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.
11.2 You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it.
11.4 OmniX Digital 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 Services. In addition, OmniX Digital will not and cannot monitor, verify, censor or edit the content of any third party site or service. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third party website or service.
11.5 Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any of these third parties. You agree that OmniX Digital shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
11.6 If there is a dispute between participants on this site, or between users and any third party, you agree that OmniX Digital is under no obligation to become involved. In the event that you have a dispute with one or more other users, including a Merchant, you release OmniX Digital, 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 Services.
IF YOU ARE A CALIFORNIA RESIDENT YOU 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." IF YOU ARE NOT A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS UNDER ANY STATUTE OR COMMON LAW PRINCIPLE SIMILAR TO SECTION 1542 THAT GOVERNS YOUR RIGHTS IN THE JURISDICTION OF YOUR RESIDENCE.
12. Changes to the Services
12.1 We're always trying to improve the Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We'll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn't always practical. Similarly, we reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges that you contributed Content in violation of these Terms), in our sole discretion, and without notice.
13. Costs and Fees
13.1 It is currently free to access and browse the Marketplace Apps and sites and other aspects of the Services. However, you may choose to purchase items through the Services, and you alone will be responsible for paying the purchase price of any items you buy, in addition to any taxes and shipping costs. OmniX Digital may limit or cancel quantities of items purchased, and it reserves the right to refuse any order. In the event OmniX Digital needs to make a change to an order, it will attempt to notify you by contacting the email address, billing address, and/or phone number provided at the time the order was made. Prices are subject to change at any time. Due to separate and applicable tax jurisdictions, your purchases may be subject to specific sales, use, customs or value-added taxes, and the shipping time and associated cost may increase accordingly. As tax rules evolve, OmniX Digital may calculate and collect taxes applicable to some purchases. See our Tax Policy Page for additional information.
13.2 OmniX Digital reserves the right to require payment of fees for certain or all Services, in addition to the fees charged for the purchase of items. You shall pay all such fees, as described on the website or Marketplace Apps in connection with such Services selected by you. OmniX Digital reserves the right to change prices and to institute new charges at any time, upon notice to you, which may be sent by email or posted on the Services. Your use of the Services following such notification constitutes your acceptance of any new or increased charges.
14. Purchases; Pricing
14.1 You are responsible for reading the full item listing before purchasing an item. By confirming your purchase at the end of the checkout process, you agree to accept and pay for the item(s), as well as all shipping and handling charges and applicable taxes. When a transaction is made pursuant to a shipping contract, the risk of loss and title for products pass to you upon delivery of the products to the carrier.
14.2 You must timely pay all fees or amounts associated with your use of the Services, including for any purchases. YOUR PAYMENTS ARE NON-REFUNDABLE EXCEPT AS EXPRESSLY PROVIDED IN APPLICABLE POLICIES.
14.3 In order to make purchases, you must provide accurate and complete information for a valid payment method, such as a credit card, that you are authorized to use. You must promptly update your account with any changes related to your payment method. BY PROVIDING INFORMATION FOR A PAYMENT METHOD, YOU AUTHORIZE OMNIX DIGITAL OR ITS AGENTS TO CHARGE THE PAYMENT METHOD FOR: (A) AMOUNTS DUE FOR PURCHASED ITEMS; (B) ANY AND ALL APPLICABLE TAXES; AND (C) ANY OTHER CHARGES INCURRED IN CONNECTION WITH YOUR USE OF THE SERVICES.
14.4 Each final price is determined by or based on a price supplied by the Merchant offering an item for sale. Merchants provide the other information in the item listings, including any reference or strike-through prices. Merchants are obligated to provide accurate information, but we have no way to guarantee the truth or accuracy of information in item listings. OmniX Digital does not represent, warrant, or guarantee that the Merchant actually offered or sold the item at the strike-through price. You should not rely on the strike-through price in connection with making any decision to purchase. If comparison price is an important factor in your purchasing decision, you should do your own research and comparisons before making a purchase.
14.5 Pricing or availability errors may occur from time to time. OmniX Digital reserves the right to cancel any orders containing pricing or availability errors, with no further obligations to you, even after your receipt of an order confirmation or shipping notice. Pricing for products may be different in different apps or platforms that we operate and also vary based on other factors, including location, time, purchase patterns.
14.6 Some items or orders may be available for pickup at a physical location near you. See the Pickup Policy for additional details and restrictions.
15. Refunds, Exchanges and Related
15.1 We want you to be satisfied with your purchase on the Services. If you have a problem with an order or purchase, please contact us as described in the Refund & Returns Policy. You agree that: (i) OmniX Digital may, in accordance with its Refund & Returns Policy, issue a refund to resolve any problems with your order, including the contents of an item listing or the item's delivery or condition; and (ii) if you wish to pursue any other remedy, you must seek that remedy directly from the applicable Merchant. If you accept a refund, your ability to seek another remedy from the applicable Merchant may be affected.
15.2 Except as described in the Refund & Returns Policy, OmniX Digital cannot refund, reimburse, cover, or otherwise be responsible for any fees, including without limitation those not paid to OmniX Digital, such as customs, taxes as well as any return shipping costs you may incur in the refund process.
16. Rewards, Credits and Hype Cash
16.1 Your account may contain rewards, credits, or Hype Cash, or virtual currency in one of our other marketplace apps. These may be used for discounts on or payment for eligible purchases made on the Services. Rewards, credits, or Hype Cash cannot be redeemed for cash, except in jurisdictions where required by law. Hype Cash is issued and may be used as described in the Hype Cash & Gift Card Policy. Hype Gift Cards are governed by the Hype Cash & Gift Card Policy.
17. Ending Our Relationship
17.1 You're free to stop using the Services at any time. Any unpaid amounts you owe OmniX Digital or Merchants for items purchased will remain due. OmniX Digital is also free to terminate (or suspend access to) your use of the Services or your account, for any reason in our discretion, including your breach of these Terms. OmniX Digital has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms. Even after your right to use the Services is terminated, these Terms will remain enforceable against you and unpaid amounts you owe to OmniX Digital or Merchants for items purchased will remain due.
17.2 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.
17.3 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 arbitration and class action waiver.
18. iOS Apps & Special Terms
18.1 If you access or use a Marketplace App on an Apple device or operating system, please review these additional iOS terms.
19. Changes to Terms
19.1 We're constantly trying to improve our Services, so these Terms may need to change along with the Services. We reserve the right to change the Terms at any time, but if we make any material changes, we will bring it to your attention by placing a notice on the Services, by sending you an email, or by some other means. If you don't agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
19.2 Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
20. WARRANTY DISCLAIMER. THIS DISCLAIMER SECTION IS AN ESSENTIAL PART OF THESE TERMS.
20.1 NEITHER OMNIX DIGITAL NOR ITS LICENSORS OR SUPPLIERS MAKES ANY REPRESENTATIONS OR WARRANTIES CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND WE WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, INTELLECTUAL PROPERTY COMPLIANCE, LEGALITY, OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES. WE (AND OUR LICENSORS AND SUPPLIERS) MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH THE SERVICES.
20.2 TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, THE SERVICES, PRODUCTS OFFERED AND PURCHASED ON THE SERVICES, OR OTHER CONTENT ARE MADE AVAILABLE TO YOU IS ON AN "AS-IS" AND "AS-AVAILABLE" BASIS, WITHOUT WARRANTIES OR ANY KIND. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OMNIX DIGITAL EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS 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 SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
20.3 YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU ASSUME FULL RESPONSIBILITY FOR YOUR USE OF THE SERVICES AND THAT ANY INFORMATION YOU SEND OR RECEIVE DURING YOUR USE OF THE SERVICES MAY NOT BE SECURE AND MAY BE INTERCEPTED OR OTHERWISE ACCESSED BY UNAUTHORIZED PARTIES. YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OMNIX DIGITAL IS NOT RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR PROPERTY OR DATA THAT RESULTS FROM ANY MATERIALS YOU ACCESS OR DOWNLOAD FROM THE SERVICES.
20.4 IF YOU RELY ON ANY DATA OR INFORMATION OBTAINED THROUGH THE SERVICES, YOU DO SO AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS FROM YOUR USE OF SUCH DATA OR INFORMATION. 20.5 CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
21. LIMITATION OF LIABILITY
21.1 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 OMNIX DIGITAL (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, PUNITIVE, 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 ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES OR (B) YOUR USE OF THE SERVICES INCLUDING, WITHOUT LIMITATION, ANY INABILITY TO ACCESS OR USE OR THE PURCHASE AND USE OF ITEMS OFFERED FOR SALE WITHIN THE SERVICES, EVEN IF OMNIX DIGITAL, ITS SUPPLIERS, OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
21.2 THIS DISCLAIMER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR PERSONAL INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUSES, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, YOUR LOSS OF PROFITS, ANY THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, LOSS OR USE OF, ANY RECORD OR DATA, AND ANY OTHER TANGIBLE OR INTANGIBLE LOSS.
21.3 YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT OMNIX DIGITAL SHALL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY MERCHANT OR USER OF THE SERVICES.
21.4 UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT OMNIX DIGITAL IS LIABLE TO YOU EXCEED THE GREATER OF (I) $100.00 OR (II) THE AMOUNTS PAID BY YOU TO OMNIX DIGITAL IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT ON WHICH YOUR CLAIM IS BASED. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF OMNIX DIGITAL FOR (1) DEATH, TANGIBLE PROPERTY DAMAGE, OR PERSONAL INJURY CAUSED BY OMNIX DIGITAL'S GROSS NEGLIGENCE OR FOR (2) ANY INJURY CAUSED BY OMNIX DIGITAL'S FRAUD OR FRAUDULENT MISREPRESENTATION.
21.5 THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN OMNIX DIGITAL AND YOU.
22.1 To the fullest extent allowed by applicable law, you agree to indemnify and hold OmniX Digital, 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 Services, including without limitation, User Submissions or any actions taken by a third party using your account), (b) your violation of these Terms, (c) your violation of any rights of another party, including without limitation any copyright, property, or privacy right or any third party agreement; or (d) your violation of any applicable laws, rules or regulations. 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).
22.2 OmniX Digital reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with OmniX Digital in asserting any available defenses. This provision does not require you to indemnify OmniX Digital for any unconscionable commercial practice by OmniX Digital or for OmniX Digital's negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact. You agree that the provisions in this section will survive any termination of your account, these Terms or your access to the Services, including the purchase of any items on the Services.
22.3 Notwithstanding the foregoing paragraph, if you are a resident of New Jersey, you only agree to release, defend, indemnify, and hold OmniX Digital and its affiliates, and its officers, agents, employees, and partners, harmless from and against any third-party claims, liabilities, damages, losses, and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way connected with your violation of these Terms.
22.4 If you are a California resident, you waive California Civil Code Section 1542, which provides: A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, and that if known by him or her would have materially affected his or her settlement with the debtor or released party.
22.5 If you are not a California resident, you waive your rights under any statute or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.
23.1 Electronic Communications You agree to receive communications from OmniX Digital electronically, such as emails, texts, mobile push notices, or notices and message on the Services, and to retain copies of these communications for your records. You agree that all terms and conditions, agreements, notices, disclosures, and other communications and documents that OmniX Digital provides to you electronically will have the same legal effect that such communications or documents would have if they were set forth in "writing."
23.2 Assignment You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without OmniX Digital's prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
23.3 Force Majeure OmniX Digital shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
23.4 Choice of Law These Terms and any dispute of any sort that might arise between you and OmniX Digital will be interpreted in accordance with the law of the State of California and the United States of America, consistent with the Federal Arbitration Act, without regard to any conflict-of-law or other principles that provide for the application of the law of another jurisdiction.
23.5 Exclusive Venue Any claim or dispute that between you and OmniX Digital that arises out of or is related to the Services and is not subject to arbitration or eligible for small claims action, shall be decided exclusively by a court of competent jurisdiction located in Santa Clara County, California, and you hereby consent to, and waive all defense of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of Santa Clara County, California.
23.6 Statute of Limitations You agree that regardless of any statute or law to the contrary, any claim arising out of or related to the Services must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred. Notwithstanding the foregoing, this statute of limitations shall not apply to residents of New Jersey.
23.7 Notice Where OmniX Digital requires that you provide an email address, you are responsible for providing OmniX Digital with your most current email address. In the event that the last e-mail address you provided to OmniX Digital is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by these Terms, OmniX Digital's dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to OmniX Digital at the following address: OmniX Digital, Inc., 332 Whisman Station Drive, Attn: Legal Dept., Mountain View, CA 94043. Such notice shall be deemed given when received by OmniX Digital by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
23.8 Export Control You may not use, export, import, or transfer the Services, including the purchase of any products on the Services except as authorized by U.S. law, the laws of the jurisdiction in which you used the Services or purchased any products on the Services, and any other applicable laws. In particular, but without limitation, the Services, including any products purchased on the Services, may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. By using the Services or purchasing products on the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services nor the products purchased on the Services for any purpose prohibited by U.S. law.
23.9 Consumer Complaints In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
23.10 Entire Agreement These Terms and all policies posted through our Services set forth the entire understanding and agreement between you and OmniX Digital, and supersede all prior understandings and agreements of the parties. These Terms shall not be modified by any of: (i) course of performance between the parties; (ii) course of conduct or dealing between the parties; or (iii) applicable trade practice.
23.11 Waiver Our failure to respond to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.
23.13 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 Services, provided that the OmniX Digital 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. Subject to Section 24 (Arbitration), 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 hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of OmniX Digital, and you do not have any authority of any kind to bind OmniX Digital in any respect whatsoever. Except as expressly set forth in the section above regarding the Apple Applications, you and OmniX Digital agree there are no third party beneficiaries intended under these Terms.
PLEASE READ THE FOLLOWING ARBITRATION AGREEMENT IN THIS SECTION ("ARBITRATION AGREEMENT") CAREFULLY. IT REQUIRES YOU TO ARBITRATE MOST DISPUTES WITH OMNIX DIGITAL AND MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS. YOU AND OMNIX DIGITAL AGREE THAT ANY DISPUTE, CONTROVERSY, OR CLAIM ARISING OUT OF, OR RELATING TO YOUR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION THE MARKETPLACE APPS, ANY PRODUCTS OR SERVICES SOLD OR DISTRIBUTED BY OR THROUGH THE MARKETPLACE APPS, THESE TERMS, OR CONTENT (A "DISPUTE" AS DEFINED BELOW) SHALL BE RESOLVED ONLY BY FINAL AND BINDING, BILATERAL ARBITRATION, subject to the exceptions below. You and OmniX Digital agree that these Terms affect interstate commerce and the Federal Arbitration Act, 9 U.S.C. § 1, et seq., and federal arbitration law apply to this agreement and govern all questions as to whether a dispute is subject to arbitration.
"Disputes" shall include, but are not limited to, any claims or controversies between you and OmniX Digital against each other related in any way to or arising out of in any way from the Service, the Content, User Submission (Public, Personal, and/or Limited Audience), including but not limited to sales, returns, refunds, cancellations, defects, policies, privacy, advertising, or any communications between you and OmniX Digital, even if the claim arises after you or OmniX Digital has terminated use of Services or a user account or these Terms. Disputes also include, but are not limited to, claims that: (a) you bring against our employees, agents, affiliates, or other representatives; (b) that OmniX Digital brings against you; (c) claims in any way related to or arising out of any aspect of the relationship between you and OmniX Digital, whether based in contract, tort, statute, fraud, misrepresentation, advertising claims, or any other legal theory; (d) claims that arose before these Terms or out of a prior set of Terms with OmniX Digital; (e) claims that are subject to ongoing litigation where you are not a party or a class member; and/or (f) claims that arise after the termination of these Terms. Disputes does not include disagreements or claims concerning patents, copyrights, moral rights, trademarks, and trade secrets and claims of piracy or unauthorized use of intellectual property, which shall not be subject to arbitration
24.2 Binding Arbitration Process and Procedure
24.2.1 Except as provided herein, if we cannot resolve a Dispute informally, any Dispute will be resolved only by binding arbitration to be held in the county in which you reside. For residents outside the United States, arbitration shall be initiated in San Jose, California. OmniX Digital and you further agree to submit to the personal jurisdiction of any state or federal court in Santa Clara County, California to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
24.2.2 To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to OmniX Digital, Inc., 332 Whisman Station Drive, Attn: Legal Dept., Mountain View, CA 94043. The arbitration will be conducted by a single arbitrator. Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys' fees and interest, shall be subject to JAMS' most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS's most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS's rules are also available at http://www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If there is a conflict between the JAMS Rules (or the rules of the alternative arbitral forum selected by the parties) and the rules set forth in this Agreement, the rules set forth in this Agreement will govern. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. You may, in arbitration, seek any and all remedies otherwise available to you pursuant to your state's law.
24.2.3 To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, OmniX Digital will pay the additional cost. OmniX Digital shall also bear the cost of any arbitration fees, unless the arbitrator finds your claims, defenses, or other fee-generating activity to be frivolous or asserted or conducted for an improper purpose. You are responsible for all other additional costs that you may incur in the arbitration including, without limitation, attorney's fees and expert witness costs unless OmniX Digital is specifically required to pay such fees under applicable law.
24.2.4 If OmniX Digital's or your claim is solely for monetary relief of $10,000 or less and does not include a request for any type of equitable remedy, the party bringing the claim may choose whether the arbitration of the claim will be conducted through a telephonic hearing, or by an in-person hearing under the JAMS Rules, solely based on documents submitted to the arbitrator.
24.2.5 You or OmniX Digital may choose to pursue a claim in small claims court where: (a) jurisdiction and venue over you and OmniX Digital otherwise qualifies for such small claims court; (b) such claim advances only on an individual (e.g. non-class, non-representative) basis; and (c) where the claim does not include a request for any type of equitable relief. However, if you decide to pursue a claim in small claims court, you agree to provide OmniX Digital with advance notice by email to info@OmniX.Digital and by mail to OmniX Digital, Inc., 332 Whisman Station Drive, Attn: Legal Dept., Mountain View, CA 94043.
24.2.6 These Terms and this Arbitration Agreement do not prevent you from bringing your Dispute to the attention of any federal, state, or local government agency. Such agencies can, if the law allows, seek relief against OmniX Digital on your behalf.
24.3 Authority of Arbitrator
The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and OmniX Digital. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum's rules, and these Terms (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
24.4 Waiver of Jury Trial
YOU AND OMNIX DIGITAL HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO RESOLVE DISPUTES IN COURT (OTHER THAN SMALL CLAIMS COURT AS PERMITTED HEREIN) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and OmniX Digital are instead electing that all covered claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
24.5 30-Day Right to Opt Out
You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt out. Your notice must be sent via email to info@OmniX.Digital and to: OmniX Digital, Inc., 332 Whisman Station Drive, Attn: Legal Dept., Mountain View, CA 94043, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Marketplace App User ID (if any), the email address you used to set up your Marketplace App account (if you have one), your signature, and a clear statement that you want to opt out of this Arbitration Agreement. You can find your User ID in settings. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, or may enter into in the future with us.
24.6 Parents, Subsidiaries, Affiliates
This Arbitration Agreement will also apply to any claims asserted by you against any present or future parent, subsidiary, or affiliated company of OmniX Digital, or any employee, officer, director, or investor of OmniX Digital, and to any claims asserted by any of them against you, to the extent that any such claims arise out of or relate to these Terms (such as with respect to their validity or enforceability), the Services, any person's access to and/or use of the Services, and/or the provision of content, products, services, and/or technology on or through the Services.
24.7 Changes to This Section
24.7.1 OmniX Digital will provide thirty (30) days' notice of any changes to this section by posting on the marketplace websites or apps, sending you a message, or otherwise notifying you when you are logged into your account. Amendments will become effective thirty (30) days after they are posted on the applicable website or sent to you.
24.7.2 Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on "Changes to This Section" is not enforceable or valid, then this subsection shall be severed from the sections entitled "Arbitration" and "Class Waiver" and the court or arbitrator shall apply the first Arbitration and Class Action Waiver sections in existence after you began using the Services.
Subject to the section title "Waiver of Class or Consolidated Actions," if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
24.9 Survival of Agreement
This Arbitration Agreement will survive the termination or expiration of these Terms or your relationship with OmniX Digital.
24.10 WAIVER OF CLASS OR CONSOLIDATED ACTIONS PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
24.10.1 OmniX Digital and you agree to resolve any dispute in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. OmniX Digital and you further agree to not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising out of or relating to any dispute with a third party.
24.10.2 The arbitrator cannot combine more than one person's or entity's claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless we agree otherwise). And, the arbitrator's decision or award in one person's or entity's case can only impact the person or entity that brought the claim, not other OmniX Digital users, and cannot be used to decide other disputes with other users.
24.10.3 If any court or arbitrator determines that the class/consolidated/representative action waiver set forth in this section is void or unenforceable for any reason or that arbitration can proceed on a class, consolidated, or representative basis, then the disputes, claims, or controversies will not be subject to arbitration and must be litigated in federal court located in San Jose, California.
24.10.4 If any clause within this Waiver of Class or Consolidated Actions Section is found to be illegal or unenforceable, that specific clause will be severed from this section, and the remainder of its provisions will be given full force and effect.
24.10.5 This Waiver of Class or Consolidated Actions Section will also apply to any claims asserted by you against any present or future parent, subsidiary or affiliated company of OmniX Digital, or any employee, officer, director, or investor of OmniX Digital, and to any claims asserted by any of them against you, to the extent that any such claims is a dispute.
24.10.6 This Waiver of Class or Consolidated Actions Section shall survive any termination of your account or the Services.