In this Agreement, “Sendfie” and “we” mean Sendfie, Inc., and “User” and “you” mean any user of the Services. This Agreement incorporates Sendfie’s standard policies, procedures, and terms and conditions for use of the Services that are referenced by name or by links in this Agreement (collectively, the “Sendfie Policies”).
When you access or use the Services or click “accept” or “agree” to this Agreement, (1) you acknowledge that you have read, understand, and agree to be bound by this Agreement, and (2) you represent and warrant that you are of legal age and not prohibited by law from accessing or using the Services (including, if applicable, purchasing, gifting, or redeeming any Restaurant Voucher as defined below). THIS AGREEMENT CONTAINS, AMONG OTHER THINGS, AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER.
Sendfie may amend or change this Agreement from time to time, in its sole discretion. Your continued use of the mobile application after any amendment or change by Sendfie shall constitute your acceptance of such amendment or change. If you do not agree to the terms of this Agreement or any amended version of this Agreement, your use of the services will be terminated and you will no longer ave access to your Account (as defined below).
1. General Description and Requirements. Sendfie’s purchase and payment services allow Users to plan events, place “in dining” food and beverage orders for self, or guests, and pay and send pre‐paid dining vouchers to guests prior to arriving at participating restaurants. In order to use the Purchase and Payment Services at a participating Restaurant, Users must: (1) install the Sendfie Application on a compatible mobile device; (2) create a User account (3) select food and or beverage items from the restaurant selected menu; (3) provide valid payment card information as further described below; and (5) have an Account in good standing. The Purchase and Payment Services are available for all Restaurants subscribed to Sendfie’s Services; for a list of participating Restaurants, please visit the Sendfie Application. There is no fee to you to use the Payment Services; however, your mobile carrier’s standard text message and data charges may apply. Additionally, you are responsible for any fees charged by your mobile carrier in connection with your use of the Payment Services and the Sendfie Application.
3. Payment Authorization and Settlement. After you place an order at a participating Restaurant, you will be prompted to pay for your purchase using the Payment Services by selecting the “Pay Now” button. By selecting the “Pay Now” button you may review your bill and select the gratuity from certain options through the Sendfie Application. When you select “Pay Now” you indicate that you intend to pay for your purchase through the Sendfie Application Payment Services, you authorize Sendfie to charge your debit or credit card for the full amount of your final bill as shown prior to selecting the “Pay Now” button. Once your payment is processed, you will receive a pre‐paid dining voucher for use at the selected Restaurant. You may only use the Payment Services to pay the full amount of the bill; no split checks or partial payments are permitted. This Agreement does not alter your payment obligations to Restaurants; you are responsible for timely payment of all amounts owed by you to any Restaurant. Except to the extent otherwise required by applicable law, Sendfie is not responsible or liable for any payments authorized through the Sendfie Application using your payment card information.
4. Receipts and Transaction History. As a courtesy, we will email a receipt to the email address associated with your Account upon completion of a transaction using the Payment Services. You may print and save copies of these receipts. Additionally, transaction histories are located in your “My Sendfies” folder.
5. Certain Limitations. You acknowledge and agree that Sendfie provides the Payment Services only as a convenience and is not a party to your payment transactions performed using the Payment Services. Sendfie is an independent contractor for all purposes and is not your agent or trustee. Sendfie is not responsible, and has no liability for the products or services that are paid for with the Payment Services. Additionally, Sendfie is not liable for any payments that the Payment Services do not complete because: (1) your debit or credit card account does not contain sufficient funds to complete the transaction or the transaction would exceed the credit limit or overdraft protection of the debit or credit card account; (2) you have not provided us with correct payment account information; (3) your debit or credit card has expired; or (4) circumstances beyond our control (such as, but not limited to, power outages, interruptions of cellular service, or any other interferences from an outside force) prevent the execution of the transaction.
6. Redemption of Restaurant Vouchers. Restaurant Vouchers may only be redeemed for the menu and Restaurant selected at time of purchase. A recipient may only redeem the entire value of the Restaurant Voucher; no partial redemptions. Except to the extent required by applicable law, Restaurant Vouchers are not redeemable for cash. Restaurant Vouchers shall be subject to the selected Restaurants applicable terms and conditions.
7. Lost or Stolen Restaurant Voucher. Sendfie is not responsible for any Restaurant Vouchers used without your permission or for any lost or stolen Restaurant Vouchers. Sendfie may, in its sole discretion, cancel and replace a lost or stolen Restaurant Voucher (if it has not already been redeemed) with a new Restaurant Voucher for the original selected restaurant if you provide via the Sendfie Site or Sendfie Application the email address to which the original Restaurant Voucher was sent.
8. Sendfie Customer Service. If you have any questions, please contact Sendfie Customer Service at 1‐ 212‐359‐1654 or email email@example.com.
9. Purchase, Cancellation and Refund of Restaurant Vouchers. Restaurant Vouchers are available for purchase through the Sendfie Application. When you purchase a Restaurant Voucher through Sendfie Application, we will forward the voucher via email, or SMS, your “Purchased Sendfie” folder, “Sendfie Received” folder of the person you have designated as the recipient and notify the applicable Restaurant of the purchase. Restaurant Vouchers are subject to the Restaurant’s applicable terms and conditions. Unredeemed Restaurant Vouchers purchased through the Sendfie Application may be canceled within 24 hours of purchase for a full refund of the purchase price to the debit or credit card account used for the purchase. You may request a full refund within 48 hours of purchase for Unredeemed Restaurant Vouchers purchased through the Sendfie Application. No refund after 48 hours and Unredeemed Vouchers remain valid for use at the originally selected restaurant subjected to menu availability and the selected restaurant’s policy. Purchased vouchers can only be redeemed at the restaurant you selected and the menu you selected at the time of purchase and cannot be used at a restaurant or menu that you did not select at the time of purchase. If you ever have trouble redeeming your Voucher for any reason, let us know. We will work with you and the Restaurant to try to resolve the issue. Please see section 10 for additional terms regarding Unredeemed Vouchers.
10. Restaurant Responsibility. You acknowledge and agree that the applicable Restaurant, not Sendfie, is the issuer of the Restaurant Vouchers and is solely responsible for honoring the Restaurant Voucher and that Sendfie provides the Payment Services only as a convenience to the Restaurant. Sendfie provides the Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to any Restaurant or Restaurant Vouchers. Each applicable Restaurant is solely responsible for the products and/or services provided in connection with the use or redemption of a Restaurant Voucher. You agree that you purchase Restaurant Vouchers at your own risk and shall not hold Sendfie, any of its affiliates, or any of their respective employees, officers, directors, agents, representatives, or service providers responsible for any act or omission of any Restaurant. Each Restaurant is responsible for ensuring that it and the Restaurant Vouchers that it issues comply with all applicable laws and regulations, including, without limitation, laws regulating gift certificates, Vouchers, and stored value cards and unclaimed property laws. You further acknowledge and agree that Sendfie is not responsible for any act or omission of Restaurant in connection with the issuance, sale, or redemption of, or unclaimed property law compliance with respect to, any Restaurant Voucher, including, without limitation, any failure by any Restaurant to honor any Restaurant Voucher or the imposition of any terms and conditions on any Restaurant Voucher that violate any applicable laws or regulations. For any and all issues or questions related to Restaurant Vouchers or any other products or services offered by Restaurants, you must contact the applicable Restaurant. Except as set forth in Section 7, you must settle any returns, disputes, and any other issues relating to Restaurant Vouchers directly with the applicable Restaurant.
13. Your Account. You may (but are not required to) create an account with Sendfie through the Sendfie Application (“Account”) in order to use redeem (as applicable) Restaurant Vouchers. However, you must have an Account in order to use the Sendfie Application as well as the Payment Services. When registering for an Account, you must provide true, accurate, current, and complete data about yourself on the Sendfie registration form (“My Profile”). You also agree to promptly update and keep your user account true, accurate, current, and complete. You are solely responsible for maintaining the confidentiality of your Account and the information in your Account, and, except as otherwise required by applicable law, you are solely responsible for all use of your Account, whether or not authorized by you. You agree to immediately notify Sendfie of any unauthorized use of your Account or any other breach of security related to your use of the Services.
15. Technical Requirements. Use of the Services requires Internet access through your mobile device. You are responsible for all mobile carrier charges resulting from your use of the Services, including from any notifications provided by the Services. Sendfie does not guarantee that the Services will be compatible with all devices or will be supported by all mobile carriers.
16. Modifications to Services. Sendfie reserves the right, in its sole discretion, to modify the Services from time to time and without notice, including, without limitation, by removing, adding, or modifying portions of the Sendfie Application, Restaurants, and/or Restaurants. Sendfie shall have no liability to you for any of the foregoing actions. If you object to any such changes, your sole recourse shall be to cease using the Services. Continued use of the Services following any such changes shall indicate your acknowledgment of such changes and satisfaction with all the Services.
17. Intellectual Property Rights and Grant of Rights to User. The features, information, and materials provided and depicted through the Services are protected by copyright, trademark, patent, and other intellectual property laws. All text, graphical content, video, data, and other content made available through the Services (collectively, the “Sendfie Content”) are provided to User by Sendfie or its partners or licensors solely to support User’s permitted use of the Services. The Sendfie Content may be modified from time to time by Sendfie in its sole discretion. Except as expressly set forth herein, no license is granted to User for any other purpose, and any other use of the Services or the Sendfie Content by User shall constitute a material breach of this Agreement. Sendfie and its partners or licensors retain all rights in the Services and Sendfie Content and any associated patents, trademarks, copyrights, mask work rights, trade secrets, or other intellectual property rights. No license, right, or interest in any trademarks of Sendfie or any third party is granted under this Agreement.
18. Application License. Subject to the terms and conditions of this Agreement, Sendfie grants User a non‐exclusive, non‐transferable, revocable license to use the Sendfie Application, in object code form only, on User’s compatible mobile devices, solely to support User’s permitted use of the Services.
19. Use Restrictions. The Services and Sendfie Content are offered solely for User’s personal use for the purposes described in this Agreement. Any and all other uses are prohibited. Sendfie expressly reserves all its rights and remedies under applicable state and federal laws. Sendfie reserves the right, in its sole discretion, to refuse service, terminate Accounts, remove or edit content, or deny access to the Services. You agree not to (and not to allow any third party to): (1) use any deep‐link, robot, spider, scraper, or other automatic or manual device, process, or means to access, copy, search, or monitor any portion of the Services or Sendfie Content, except as expressly authorized by Sendfie; (2) take any action that imposes or may impose (in Sendfie’s sole determination) an unreasonable or a disproportionately large load on the Services or Sendfie’s infrastructure; (3) utilize any device, software, or routine that will interfere or attempt to interfere with the functionality of the Services; (4) rent, lease, copy, provide access to or sublicense any portion of the Services or Sendfie Content to a third party; (5) use any portion of the Services or Sendfie Content to provide, or incorporate any portion of the Services or Sendfie Content into, any product or service provided to a third party; (6) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non‐public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Sendfie); (7) modify any Services or Sendfie Content or create any derivative product from any of the foregoing; (8) remove or obscure any proprietary or other notices contained in the Services or Sendfie Content; (9) use the Services or Sendfie Content for any illegal purpose; or (10) publicly disseminate information regarding the performance of the Services or Sendfie Content or access or use the Services or Sendfie Content for competitive analysis or benchmarking purposes.
20. Export Control. You may not use, export, or re‐export any Sendfie Application or other aspects of the Services (or any copy or adaptation of the foregoing) in violation of applicable law, including, without limitation, United States and foreign export laws and regulations. You represent and warrant that 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 that you are not listed on any U.S. Government list of prohibited or restricted parties.
21. Termination. Sendfie may suspend your ability to use all or any element of the Services or may terminate this Agreement effective immediately, without notice or explanation. Without limiting the foregoing, Sendfie may suspend your access to the Services if we believe you to be in violation of any part of this Agreement (including any Sendfie Policies) or, with respect to purchasers of Restaurant Vouchers and Users of the Payment Services, if we receive excessive chargebacks on the debit or credit card associated with your Account. After any suspension or termination, you may or may not be granted permission to use the Services or re‐establish an Account. You agree that Sendfie shall not be liable to you for any termination of this Agreement or for any effects of any termination of this Agreement. You have the right to discontinue your use of the Services at any time. You understand that any termination of your Account may involve deletion of any content stored in your Account for which Sendfie will have no liability whatsoever.
22. Reviews, Comments, Communications, and Other Content.The Services may permit you to submit reviews, comments, and ratings; send emails and other communications; and submit suggestions, ideas, comments, questions, or other information for publication and distribution to restaurants and other third parties (“User Content”). Any such User Content must not be illegal, threatening, obscene, racist, defamatory, libelous, pornographic, infringing of intellectual property rights, promoting of illegal activity or harm to groups and/or individuals, invasive of privacy, purposely false or otherwise injurious to third parties, or objectionable and must not consist of or contain software, computer viruses, commercial solicitation, political campaigning, chain letters, mass mailings, any form of “spam” or references to illegal activity, malpractice, purposeful overcharging, false advertising, or health code violations (e.g., foreign objects in food, food poisoning, etc.). You may not use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of User Content. Sendfie reserves the right (but has no obligation) to monitor, remove, or edit User Content in Sendfie’s sole discretion, including if User Content violates this Agreement (including any Sendfie Policies), but you acknowledge that Sendfie may not regularly review submitted User Content. If you do submit User Content, and unless we indicate otherwise, you grant Sendfie a nonexclusive, perpetual, royalty‐free, irrevocable, and fully sub‐ licensable (through multiple tiers) right to use, modify, reproduce, adapt, translate, publish, create derivative works from, distribute, display, and otherwise exploit such User Content throughout the world in any media. Sendfie takes no responsibility and assumes no liability for any User Content submitted by you or any other User or third party.
23. Your Representations and Indemnity. You represent and warrant that you own or otherwise control all of the rights to any User Content submitted by you; that all User Content submitted by you is accurate; and that exploitation of such User Content by Sendfie and its other Users, partners, and licensees will not violate this Agreement, cause injury to any person or entity, or infringe any third‐party rights (including, without limitation, intellectual property rights and rights of privacy or publicity). You will indemnify, hold harmless, and (at Sendfie’s request) defend Sendfie, its affiliates, and its and their representatives, agents, directors, managers, officers, employees, and shareholders (collectively, the “Sendfie Parties”) from and against all claims resulting from (1) any User Content submitted by you, (2) your use of the Services, or (3) any breach or alleged breach by you of this Agreement.
24. Liability Limitations. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY SPECIFIED BELOW WITH RESPECT TO RESTAURANT VOUCHERS, IN NO EVENT SHALL THE SENDFIE PARTIES BE LIABLE FOR ANY INJURIES, LOSSES, CLAIMS, OR DIRECT DAMAGES OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE OUT OF OR ARE ANY WAY CONNECTED WITH (1) THIS AGREEMENT, (2) ANY USE OF THE SERVICES, THE SENDFIE CONTENT, OR THE USER CONTENT, (3) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF THE PAYMENT SERVICES), OR (4) YOUR VISIT TO ANY RESTAURANT OR THE PERFORMANCE, NON‐PERFORMANCE, CONDUCT, OR POLICIES OF ANY RESTAURANT OR RESTAURANT IN CONNECTION WITH THE SERVICES. IN ADDITION, YOU SPECIFICALLY UNDERSTAND AND AGREE THAT ANY THIRD PARTY DIRECTING YOU TO THE SENDFIE SITE BY REFERRAL, LINK, OR ANY OTHER MEANS IS NOT LIABLE TO USER FOR ANY REASON WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR LOSS ASSOCIATED WITH THE USE OF THE SERVICES OR THE SENDFIE CONTENT. SENDFIE IS NEITHER AN AGENT OF NOR OTHERWISE ASSOCIATED WITH ANY RESTAURANT FOR WHICH A USER HAS PAID A BILL USING THE PAYMENT SERVICES OR ANY RESTAURANT THAT ISSUES A RESTAURANT VOUCHER. WITH RESPECT TO PURCHASES OF RESTAURANT VOUCHERS, OR IF THE DISCLAIMER OF DIRECT DAMAGES ABOVE IS NOT PERMITTED BY LAW, YOU EXPRESSLY AGREE THAT OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION) WILL AT ALL TIMES BE LIMITED TO THE GREATER OF THE PRICE YOU PAID FOR YOUR MOST RECENT PURCHASE OF A RESTAURANT VOUCHER (AS APPLICABLE) OR FIFTY US DOLLARS ($50). You and Sendfie understand and agree that the disclaimers, exclusions, and limitations in this Section 24 and in Section 25 are essential elements of this Agreement and that they represent a reasonable allocation of risk. In particular, you understand that Sendfie would be unable to make the Services available to you except on these terms and agree that this Agreement will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
25. Disclaimer of Warranties. THE SERVICES, ALL SENDFIE CONTENT, AND ANY OTHER INFORMATION, PRODUCTS, AND MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICES, ARE PROVIDED TO USER ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND. SENDFIE EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, OR INDEMNITIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF RESTAURANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON‐INFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. SENDFIE DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR‐FREE; THAT SENDFIE WILL REVIEW THE INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SERVICES FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN ANY SUCH INFORMATION OR MATERIALS WITHOUT LOSS. SENDFIE SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF SENDFIE. THE FOREGOING DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
26. Links to Third‐Party Websites. The Services may contain hypertext links to websites operated by parties other than Sendfie. Such hypertext links are provided for User’s reference only, and Sendfie does not control such websites and is not responsible for their content. Sendfie’s inclusion of any hypertext links to such websites does not imply any endorsement of the material on such websites or any association with their operators. Sendfie assumes no liability whatsoever for any such third‐party websites or any content, features, products, or services made available through such third‐party websites.
27. Release. Restaurants and Restaurants are solely responsible for their interactions with you and any and all claims, injuries, illnesses, damages, liabilities, and costs (“Claims”) suffered by you (or, if applicable, any recipient of a Restaurant Voucher) as a result of your (or such recipient’s) interaction with or visit to any Restaurant or Restaurant or from any product or service of any Restaurant or Restaurant. You hereby release the Sendfie Parties from any and all such Claims. IN CONNECTION WITH THE FOREGOING, IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” You hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to the release of any unknown or unsuspected claims you may have against the Sendfie Parties pertaining to the subject matter of this Section 27.
28. Notify Us of Infringers. If you believe any of the Services violate your copyright, notify our copyright agent in writing. The contact information for our copyright agent is at the bottom of this Section. In order for us to take action, you must do the following in your notice: (a) provide your physical or electronic signature; (b) identify the copyrighted work that you believe is being infringed; (c) identify the item that you think is infringing your work and include sufficient information about where the material is located so that we can find it; (d) provide us with a way to contact you, such as your address, telephone number, or email; (e) provide a statement that you believe in good faith that the item you have identified as infringing is not authorized by the copyright owner, its agent, or the law to be used in connection with the Services; and (f) provide a statement that the information you provide in your notice is accurate, and that (under penalty of perjury) you are authorized to act on behalf of the copyright owner whose work is being infringed. Here is the contact information for our copyright agent: Copyright Enforcement Sendfie, Inc. 116 W 23rd Street, 5th FL New York, NY 10011 copyright@Sendfie.com Again, we cannot take action unless you give us all the required information.
29. Severability. If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision (or portion thereof) notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted.
30. Assignment. This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned, or delegated in any manner by User, but may be freely transferred, assigned, or delegated by Sendfie.
31. Waiver. Any waiver of any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non‐enforcement of that or any other provision or right.
32. ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE. Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and the Sendfie Parties or their successors or assigns shall exclusively be settled through binding and confidential arbitration. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”). You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT. You and Sendfie must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR SENDFIE MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS‐WIDE RELIEF; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Sendfie will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost‐prohibitive as compared to the cost of litigation, (4) Sendfie also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law. Notwithstanding the foregoing, either you or Sendfie may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in New York County, New York. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in New York County, New York in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within New York County, New York for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate. With the exception of subparts (1) and (2) in this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If, however, either subpart (1) or (2) is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Sendfie shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court located in New York County, New York. For more information on AAA, the Rules and Procedures, or the process for filing an arbitration claim, you may call AAA at 800‐778‐7879 or visit the AAA website at http://www.adr.org.
33. Choice of Law. This Agreement is made under and shall be governed by and construed in accordance with the laws of the State of New York, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.