Effective date: August 29, 2023
Welcome to Arden. Please read on to learn the rules and restrictions that govern your use of our website(s),products, services and applications, including any products or services offered by our affiliates and any other products or services that incorporate these Terms of Use (collectively, the “Services”). If you have any questions, comments, or concerns regarding these Terms of Use or the Services, please contact us at:
Email: support@arden.cc
These Terms of Use (the “Terms”) are a binding contract between you and ARDEN LABS, INC. (“Arden,” “we” and “us”). Your use of the Services in any way means that you agree to all of these Terms, and these Terms will remain in effect while you use the Services. These Terms include the provisions in this document as well as those in the Privacy Policy and the Copyright Dispute Policy. Your use of or participation in certain Services may also be subject to additional policies, rules and/or conditions(“Additional Terms”), which are incorporated herein by reference, and you understand and agree that by using or participating in any such Services, you agree to also comply with these Additional Terms.
Please read these Terms carefully. They cover important information about Services provided to you and any charges, taxes, and fees we bill you. These Terms include information about future changes to these Terms, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTETHAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THESERVICES IN ANY MANNER.
ARBITRATIONNOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTESDESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREETHAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUALARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUITOR CLASS-WIDE ARBITRATION.
We are constantly trying to improve our Services, so these Terms may need to change along with our Services. We reserve the right to change the Terms at any time, but if we do, we will place a notice on our site located at arden.cc, send you an email, and/or notify you 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.
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.
Arden takes the privacy of its users very seriously. For the current Arden Privacy Policy, please click here.
Children’s Online Privacy Protection Act
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13 years of age. We do not knowingly collector solicit personally identifiable information from children under 13 years of age; if you are a child under 13 years of age, please do not attempt to register for or otherwise use the Services or send us any personal information. If we learn we have collected personal information from a child under 13 years of age, we will delete that information as quickly as possible. If you believe that a child under 13 years of age may have provided us personal information, please contact us at support@arden.cc.
You will be required to sign up for an account, select a password and user name (“Arden User ID”), and provide us with certain information or data, such as your contact information. You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your Arden User ID a name that you do not have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
You represent and warrant that you are an individual 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 have gotten your parent or guardian to agree to these Terms on your behalf).
You will only use the Services for your own internal, personal use, and not on behalf of or for the benefit of any third party. You will comply with all laws that apply to you, your use of the Services, and your actions and omissions that relate to the Services (for example, Sellers must comply with all laws that relate to the Digital Assets(as defined below)). If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law.
You will not share your Arden User ID, account or password with anyone, and you must protect the security of your Arden User ID, account, password and any other access tools or credentials. You’re responsible for any activity associated with your Arden User ID and account.
Connecting Sellers and Purchasers for Sales of Digital Assets
Arden may, from time to time, connect persons who are selling non-fungible tokens or other digital assets implemented on a blockchain (such persons, “Sellers” and such assets, “Digital Assets”) and persons looking to acquire those Digital Assets (“Purchasers”). When we use the word “you” in these Terms, it refers to any user, regardless of whether he or she is a Seller or Purchaser, while if we use one of those specific terms, it only applies to that category of user.
Arden is only responsible for connecting Sellers and Purchasers, and can’t and won’t be responsible for making sure that Digital Assets match the description provided by the Seller or otherwise meet any Purchaser criteria. We don’t control the actions of any Purchaser or Seller, and Sellers aren’t our employees.
All purchases and sales are executed at your own risk. We do not have the ability to freeze, cancel or otherwise modify any transaction that you execute through our Services. We do not store, send, or receive Digital Assets. Any transfer that occurs in relation to any Digital Asset occurs on the relevant blockchain network, and we cannot guarantee that any transaction will be completed in the manner intended. We do not develop or control the smart contracts that govern the transfer of Digital Assets.
Transactions for Digital Assets may require the payment of “gas” or other transaction fees. You are responsible for ensuring that you have adequate funds in your wallet to complete transactions. You acknowledge and agree that we will not be liable for any failed transactions due to insufficient funds.
Arden does not provide a wallet to store or access Digital Assets. Currently, the Services integrate with third-party custodial wallets offered by Halliday (the “Halliday Wallet”). Your use of the Halliday Wallet is subject to Halliday’s terms of service and privacy policy. We make no representations or warranties about the Halliday Wallet and are not responsible for the acts or omissions of Halliday.
In addition, Arden does not directly offer Digital Assets. We are not a broker, financial institution or creditor. We facilitate transactions between Purchasers and Seller but are not a party to any purchase or sale agreement between Users. You hereby acknowledge that Arden does not supervise, direct, control or monitor the Digital Assets and expressly disclaims any responsibility and liability for the Digital Assets, including but not limited to any warranty or condition of quality or fitness for a particular purpose, or compliance with any law, regulation, or code. Sellers are solely responsible for determining and establishing the price of a Digital Asset, inclusive of any applicable tax.
Although the terms of sale for a Digital Asset are displayed on the Services, all such terms are determined by the Purchasers and Sellers and the sale and purchase of Digital Assets are subject to such (e.g., with respect to the use of the artwork associated with the Digital Asset)(“Purchase Terms”), including, but not limited to, the price to be paid for such Digital Asset. Arden is not a party to any such Purchase Terms, which are solely between the Purchaser and the Seller.
Purchasers and Sellers must not enter into separate agreements outside of Arden relating to Digital Assets listed on our Services (“Outside Agreements”).If you do enter into any Outside Agreement we may terminate your Arden account, and you acknowledge that Arden is not a party to and isn’t responsible for enforcing any Outside Agreement.
YOU SHOULD be aware that all DIGITALASSET investments involve risks, including the risk of loss of some or all DIGITAL assets. Losses are not insured, and YOU assume responsibility for all losses. YOU are advised to exercise caution, conduct research, and not to transact more than YOU can afford to lose.
You represent, warrant, and agree that you will not provide or contribute anything, including any Content or User Submission (as those terms are defined below), to the Services, or otherwise use or interact with the Services, in a manner that:
(a) infringes or violates the intellectual property rights or any other rights of anyone else (including Arden);
(b) violates any law or regulation, including, without limitation, any applicable export control laws, privacy laws or any other purpose not reasonably intended by Arden;
(c) is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
(d) jeopardizes the security of your Arden User ID, account or anyone else’s (such as allowing someone else to log in to the Services as you);
(e) attempts, in any manner, to obtain the password, account, or other security information from any other user;
(f) violates the security of any computer network, or cracks any passwords or security encryption codes;
(g) runs Mail list, 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);
(h) “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
(i) copies or stores any significant portion of the Content;
(j) decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services;
(k) constitutes money laundering, terrorist financing, or other illicit financial activity, or in any way results in the violation of any law or regulation that applies to you or to Arden;
(l) benefits (i) any natural or legal person that is the subject of economic sanctions; (ii) any natural or legal person located in, ordinarily resident in, or organized under the laws of, any embargoed jurisdiction; or (iii) any legal person owned or controlled, directly or indirectly, by any natural or legal person located in, ordinarily resident in,or organized under the laws of, any embargoed jurisdiction;
(m) carries out any financial activities subject to registration or licensing, including but not limited to creating, offering, selling, or buying securities, commodities, options, or debt instruments;
(n) gives owners rights to participate in an ICO or any securities offering, or that gives the owner redemption rights for securities, commodities, or other financial instruments;
(o) results in in price manipulation, fraud, or other deceptive, misleading, or manipulative activity;
(p) involves the purchase, sale or transfer of stolen items, fraudulently obtained items, items taken without authorization, and/or any other illegally obtained items;
(q) displays illegal content, such as content that may involve child sexual exploitation; or
(r) displays content that promotes suicide or self-harm, incite hate or violence against others.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
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 (as defined below) and so forth (all of the foregoing, the “Content”) are 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, commercialize 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 (including Arden's) rights.
Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Services is expressly prohibited without prior written permission from us. You understand that Arden owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services. The Services may allow you to copy or download certain Content, but please remember that even where these functionalities exist, all the restrictions in this section still apply.
User Submissions
Anything you post, upload, share, store, or otherwise provide through the Services is your “User Submission”. This includes any images or other copyrightable work associated with Digital Assets that you may list in the Services. Some User Submissions may be viewable by other users. You are solely responsible for all User Submissions you contribute to the Services. You represent that all User Submissions submitted by you are accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. When you purchase a Digital Asset, you will own it and have all rights to further sell, display or give away the Digital Asset for as long as you own t. The intellectual property rights granted to a Purchaser of a Digital Asset will be as dictated by the Purchase Terms for such Digital Asset.
You agree that you will not post, upload, share, store, or otherwise provide through the Services any User Submissions that: (i) infringe any third party's copyrights or other rights(e.g., trademark, privacy rights, etc.); (ii) contain sexually explicit content or pornography; (iii) contain hateful, defamatory, or discriminatory content or incite hatred against any individual or group; (iv) exploit minors; (v) depict unlawful acts or extreme violence; (vi) depict animal cruelty or extreme violence towards animals; (vii) promote fraudulent schemes, multi-level marketing (MLM) schemes, get rich quick schemes, online gaming and gambling, cash gifting, work from home businesses, or any other dubious money-making ventures; or (viii) that violate any law.
Licenses
In order to display your User Submissions on the Services, and to allow other users to view them (where applicable), you grant us certain rights in those User Submissions (see below for more information). Please note that all of the following licenses are subject to our Privacy Policy to the extent they relate to User Submissions that are also your personally-identifiable information.
For all User Submissions, you hereby grant Arden a license to translate, modify (for technical purposes, for example, making sure your content is viewable on a mobile device as well as a computer) and reproduce and otherwise act with respect to such User Submissions, in each case to enable us to operate the Services, as described in more detail below. This is a license only – your ownership in User Submissions is not affected.
If you share a User Submission publicly on the Services and/or in a manner that is viewable by other users, or if you provide us (in a direct email or otherwise) with any feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Services(each of the foregoing, a “Public User Submission”), then you grant Arden the license above, as well as a license to display, perform, and distribute your Public User Submission for the purpose of making that Public User Submission accessible to Arden users.
You agree that the licenses you grant are royalty-free, perpetual, sublicensable, irrevocable, and worldwide, provided that when you delist any Digital Asset, we will stop displaying the relevant User Submissions associated with that Digital Asset, but you understand and agree that it may not be possible to completely delete that content from Arden's records, and that your User Submissions may remain viewable elsewhere to the extent that they were copied or stored by other users.
Finally, you understand and agree that Arden, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
We respect others’ intellectual property rights, and we reserve the right to delete or disable Content alleged to be infringing, and to terminate the accounts of repeat alleged infringers; to review our complete Copyright Dispute Policy and learn how to report potentially infringing content, click here.
You accept and acknowledge:
(a) The value of a Digital Asset is subjective. Prices of Digital Assets are subject to volatility. You acknowledge that you fully understand this subjectivity and volatility and that you may lose money.
(b) You understand that you are responsible for any fees related to use of the Services, including for actions you take on the blockchain, regardless of whether a successful transaction occurs, and that such fees are final and irreversible.
(c) The regulatory regime governing Digital Assets and other blockchain or crypto-based items is uncertain, and new regulations or policies may materially adversely affect the development of the Services and the utility of Digital Assets.
(d) You are solely responsible for determining what, if any, taxes apply to your transactions and to withhold, collect, report, and remit the correct amounts of taxes to the appropriate tax authorities. Arden is not responsible for determining, withholding, collecting, reporting, or remitting any taxes that apply to your Digital Assets or the sale/purchase of your Digital Assets.
(e) There are risks associated with purchasing items associated with content created by third parties through peer-to-peer transactions, including but not limited to, the risk of purchasing counterfeit items, mislabeled items, items that are vulnerable to metadata decay, items on smart contracts with bugs, and items that may become untransferable. You represent and warrant that you have done sufficient research before making any decisions to sell, obtain, transfer, or other wise interact with any Digital Assets.
(f) We do not have ownership or control of the smart contracts deployed by third parties, and are not responsible and make no guarantees regarding their operation and functionality.
(g) We do not control the public blockchains that you are interacting with and we do not control certain smart contracts and protocols that may be integral to your ability to complete transactions on these public blockchains. Additionally, blockchain transactions are irreversible and Arden has no ability to reverse any transactions on the blockchain.
(h) There are risks associated with using Internet and blockchain based products, including, but not limited to, the risk associated with hardware, software, and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to your third-party wallet. You accept and acknowledge that Arden will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using the Services or any blockchain network, however caused.
If there is a dispute between participants on this site or Services, or between users and any third party, you agree that Arden is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Arden, its directors, 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. You shall and hereby do waive California Civil Code Section 1542or any similar law of any jurisdiction, which says in substance: “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.”
We’re always trying to improve our 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. 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 you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
While the Services do not cost anything, Arden may receive fees if you choose to purchase or sell a Digital Asset through the Services. Arden does not set, collect, or determine other applicable costs, fees, or expenses associated with buying and selling a Digital Asset, including any creator earnings, gas, or transaction fees. These costs, fees, and expenses are paid directly to the Seller, creator, payment processor, blockchain validator, or other third party, as applicable. Because these costs, fees, and expenses are not collected by Arden, we cannot refund them. To enable purchases and sales through the Services, we use a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your account on the Services (your “Billing Account”). The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to these Terms. Currently, we use Stripe, Inc. as our Payment Processor. You can access Stripe’s Terms of Service at https://stripe.com/us/checkout/legaland their Privacy Policy at https://stripe.com/us/privacy.We are not responsible for any error by, or other acts or omissions of, the Payment Processor. By making a purchase through the Services, you agree to pay, through the Payment Processor, all charges applicable to such purchase in accordance with the applicable payment terms, and you authorize us, through the Payment Processor, to charge your chosen payment provider (your “Payment Method”). You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that the Payment Process or makes even if it has already requested or received payment.
You’re free to do that at any time by contacting us at support@arden.cc; please refer to our Privacy Policy, as well as the licenses above, to understand how we treat information you provide to us after you have stopped using our Services.
Arden 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. Arden has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms; for example, a Purchaser who believes that a Seller maybe in breach of these Terms is not able to enforce these Terms against that Seller.
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.
If you have deleted your account by mistake, contact us immediately at support@arden.cc –we will try to help, but unfortunately, we can’t promise that we can recover or restore anything.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the arbitration agreement.
Warranty Disclaimer. Arden and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (Arden and all such parties together, the “Arden Parties”) make no representations or warranties concerning the Services, including without limitation regarding any Content contained in or accessed through the Services, and the Arden Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Services. The Arden Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services, including any Digital Assets. THE SERVICES AND CONTENT ARE PROVIDED BY ARDEN (AND ITS LICENSORS AND SUPPLIERS) ON AN“AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED,INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESSFOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BEUNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONGAN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. ARDEN IS NOT RESPONSIBLE OR LIABLE FOR ANYSUSTAINED LOSSES OR INJURY DUE TO VULNERABILITY OR ANY KIND OF FAILURE,ABNORMAL BEHAVIOR OF SOFTWARE (E.G., WALLET, SMART CONTRACT), BLOCKCHAINS ORANY OTHER FEATURES OF THE DIGITAL ASSETS. ARDEN IS NOT RESPONSIBLE FOR LOSSESOR INJURY DUE TO LATE REPORTS BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT ATALL) OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING THE DIGITAL ASSETS, INCLUDINGFORKS, TECHNICAL NODE ISSUES OR ANY OTHER ISSUES HAVING LOSSES OR INJURY AS A RESULT.
Limitation of Liability.TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES ANDUNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICTLIABILITY, OR OTHERWISE) SHALL ANY OF THE ARDENPARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL,INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGESFOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORKSTOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANYSUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, INEXCESS OF THE GREATER OF (I) ONE-HUNDRED ($100) DOLLARS OR (II) THE AMOUNTSPAID AND/OR PAYABLE BY YOU TO ARDEN IN CONNECTIONWITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLECLAIM OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOWTHE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHERDAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnity. You agree to indemnify and hold the Arden Parties 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 claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms.
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 Arden's prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of Texas, without regard to the conflicts of laws provisions thereof.
Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Arden and limits the manner in which you can seek relief from Arden. Both you and Arden acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Arden's officers, directors, employees and independent contractors(“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
(a)Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in Harris County, Texas. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. Arden will pay all arbitration fees for claims less than seventy-five thousand($75,000) dollars. Arden will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
(c) Small Claims Court; Infringement. Either you or Arden may assert claims, if they qualify, in small claims court in Harris County, Texas or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
(d) Waiver of Jury Trial. YOU AND ARDEN WAIVE ANYCONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OFA JUDGE OR JURY. You and Arden are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Arden over whether to vacate or enforce an arbitration award, YOU AND ARDEN WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPEOF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUALBASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOTBE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHERCUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Arden is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: 4200Montrose Blvd Suite 100, Houston, Texas 77006 postmarked within thirty (30)days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or Arden to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and Arden agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, Harris County, Texas, or the federal district in which that county falls.
(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with Arden.
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 Arden may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Arden agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Arden, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Arden, and you do not have any authority of any kind to bind Arden in any respect whatsoever.
Except as expressly set forth in the section above regarding the arbitration agreement, you and Arden agree there are no third-party beneficiaries intended under these Terms.