Welcome, and thank you for your interest in JIM.com. These General Terms of Service are a legally binding contract between you and CloudWalk Inc. (“Jim.com”, "JIM.com", “JIM”, “we,” or “us”) and our website at www.jim.com, along with our related websites, hosted applications, mobile or other downloadable applications, and other services provided by us (collectively, the “Service”).
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
BY CLICKING “I ACCEPT,” (OR OTHER LANGUAGE INDICATING ACCEPTANCE) OR BY ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND TO THE FOLLOWING TERMS AND CONDITIONS, INCLUDING ANY ADDITIONAL TERMS SPECIFIC TO THE SERVICES YOU USE, JIM.COM’S PRIVACY POLICY (“PRIVACY POLICY”), AND ANY OTHER POLICIES REFERENCED HEREIN (TOGETHER, THESE “TERMS”). “YOU” REFERS TO THE BUSINESS USING THE SERVICES. THE INDIVIDUAL ACCEPTING THESE TERMS ON YOUR BEHALF REPRESENTS TO US THAT THEY:(A) ARE AT LEAST 18 YEARS OF AGE, AND (B) HAVE THE AUTHORITY TO BIND YOU TO THESE TERMS.
YOU AGREE TO RECEIVE TEXTS/CALLS FROM OR ON BEHALF OF JIM.COM AT THE PHONE NUMBER YOU PROVIDE TO US. YOU UNDERSTAND AND AGREE THAT THESE TEXTS/CALLS MAY BE CONSIDERED TELEMARKETING UNDER APPLICABLE LAW, THEY MAY BE SENT USING AN AUTOMATIC TELEPHONE DIALING SYSTEM OR OTHER AUTOMATED TECHNOLOGY, AND YOUR CONSENT IS NOT A CONDITION OF ANY PURCHASE.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 15, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND JIM.COM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.
1. Services
1.1. Services. We have created a digital payments platform with services for merchants, including services relating to payment processing, settlement, or facilitation with respect to any US-issued or non-US issued credit cards (“Cards”) from Card networks that we may support, such as American Express Travel Related Services Company, Inc., (“American Express”), Discover Global Network (“Discover”), MasterCard International Inc. (“MasterCard”) and Visa Inc. (“Visa”) (each a “Card Network”). Certain Services may be subject to additional service-specific terms, available at https://www.jim.com/behind-the-curtain (“Service Terms”). If there is a conflict or inconsistency between these Terms and the Service Terms, the Service Terms will control with respect to the applicable Service.
1.2. Network Rules and NACHA Rules. By using the Services, you agree to comply with all applicable bylaws, rules, and regulations set forth by the Card Networks (“Network Rules”), and the National Automated Clearing House Association (“NACHA”) Operating Rules and Guidelines (the “NACHA Rules”). The Network Rules are available here for Visa, here for MasterCard, and here for American Express. The Card Networks or NACHA may amend the Network Rules or NACHA Rules, as applicable, from time to time. JIM.com may be required to update these Terms in connection with such amendment. Your continued use of the Services may be contingent upon your acceptance to such updates. In the event of inconsistency between the Network Rules or the NACHA Rules and these Terms, and except as otherwise agreed between JIM.com and the Card Network or NACHA, as applicable, the Network Rules and the NACHA Rules shall apply.
1.3. Disclaimer. We are not a bank, and therefore do not accept deposits. You are not required to accept Cards from any particular Card Network as a condition of receiving the Services. We may change which Card Networks we support through the Services at any time without prior notice.
1.4. Limited License. Subject to your complete and ongoing compliance with these Terms, we hereby grant you a limited, non-exclusive, revocable, non-transferable, non-sublicensable license to access and use the Services, as authorized in these Terms.
1.5. Restrictions. Except where prohibited by law, you may not, nor may you permit any third party, directly or indirectly, to:
1.5.1. use the Services for household, family or personal purposes;
1.5.2. export the Services, which may be subject to export restrictions imposed by US law, including US Export Administration Regulations (15 C.F.R. Chapter VII);
1.5.3. engage in any activity that may be in violation of regulations administered by the United States Department of the Treasury’s Office of Foreign Asset Control (31 C.F.R. Parts 500-599). Prohibited activity includes but is not limited to the provision of Services to or for the benefit of a jurisdiction, entity, or individual blocked or prohibited by relevant sanctions authorities, including but not limited to activities in Iran, Cuba, North Korea, Syria, or the Crimean Region of the Ukraine. If found to be in apparent violation of these restrictions, your account could be terminated and your funds could be held for an indefinite period of time;
1.5.4. access or monitor any material or information on any JIM.com system using any manual process or robot, spider, scraper, or other automated means;
1.5.5. except to the extent that any restriction is expressly prohibited by law, violate the restrictions in any robot exclusion headers on any Service, work around, bypass, or circumvent any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble or otherwise reverse engineer the Services;
1.5.6. perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by our other customers, or impose an unreasonable or disproportionately large load on our infrastructure;
1.5.7. copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way materials, information or Services from JIM.com;
1.5.8. use and benefit from the Services via a rental, lease, timesharing, service bureau or other arrangement;
1.5.9. transfer any rights granted to you under these Terms;
1.5.10. use the Services in connection with any of the Unsupported Industries (as set forth in Section 1.6);
1.5.11. act as a payment facilitator or otherwise resell the Services to any third party;
1.5.12. use the Services to handle, process or transmit funds for any third party;
1.5.13. use the Services to process cash advance;
1.5.14. use the Services for any illegal activity or goods or in any way that exposes you, other JIM.com users, our partners, or JIM.com to harm;
1.5.15. otherwise use the Services except as expressly allowed under these Terms; or
1.5.16. attempt to do any of the foregoing.
1.6. Unsupported Industries. Except where such restriction is prohibited by law, you may not use the Services for the businesses or business activities identified at the Unsupported Industries list, available at https://www.jim.com/behind-the-curtain/unsupported-industries. We may update the list of Unsupported Industries at any time with prior notice to you.
2. JIM.com Account Registration
2.1 JIM.com Account; Account Information. You must open an account with us (a “JIM.com Account”) to use the Services. During registration we will ask you for information, which may include, but is not limited to, email address, text-enabled mobile phone number, tax identification number (such as EIN, SSN or iTIN), and a government issued form of identification. You represent and warrant that you own the email or mobile phone number you register with and all information entered or collected in the course of creating your JIM.com Account and any information you subsequently add or update from your settings (“Account Information”) is true and accurate, and you agree to keep your Account Information current.
2.2. Eligibility. Only businesses (including sole proprietors) located in the United States are eligible to apply for a JIM.com Account and use the Services. JIM.com or its affiliates may provide Services to you in other countries or regions under separate agreements. You must not attempt to create or use a JIM.com Account on behalf of or for the benefit of a third party whose use of the Services was suspended or terminated by JIM.com.
2.3. Business Representative. You and the individual submitting your application for a JIM.com Account (your “Representative”) individually affirm to JIM.com that (a) your Representative is authorized to provide Account Information on your behalf and to bind you to this Agreement; and (b) your Representative is an executive officer, senior manager or otherwise has significant responsibility for the control, management or direction of your business.
2.4. Your Name. You represent and warrant that you are authorized to conduct business by the state(s) in which you operate. You must use your or your business’ true and accurate name when opening a JIM.com Account. This name will appear on the credit card statements of your customers for all payments you accept using the Services.
2.5. Identity Verification. JIM.com will review the Account Information you submit while signing up for the Services. You hereby authorize JIM.com, either directly or through the use of third parties, to request identity verifying information about you or your Representative. In addition, you authorize JIM.com to retrieve information about you from third parties, including credit reporting agencies, banking partners and information bureaus, and you authorize and direct those third parties to compile and provide that information to JIM.com. JIM.com may periodically obtain additional reports to determine whether you continue to meet the requirements for a JIM.com Account. You permit JIM.com to share information about you, your Representative, and your application (including whether you are approved or declined), and your JIM.com Account with banks or other financial institutions, or with other third parties involved in providing or making available the Services to you. JIM.com or its processor and/or acquiring bank may conclude that you will not be permitted to use the Services.
2.6. Additional Information. For certain Services, JIM.com may request additional information from you at any time. For example, JIM.com may ask you to present invoices from your suppliers, a government issued identification such as a passport or driver’s license for your authorized representative, a business license, or other information. JIM.com may also ask for permission to inspect your business location. If you refuse any of these requests, your JIM.com Account may be suspended or terminated.
2.7. IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT — To help the government fight the funding of terrorism and money laundering activities, federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. What this means for you: when you open an account to use the Services, we will ask for your name, address, date of birth, and other information that will allow us or our banking partners to identify you, the legal entity you are opening an account for as well as its control persons and beneficial owners that will allow us to identify you and the legal entity you represent. We may also ask to see your driver’s license or other identifying documentation for the legal entity, and entities and persons related to the legal entity for which you are establishing an account.
2.8. Disclaimer; Termination. You are fully responsible for all activity that occurs under your JIM.com Account, including for any actions taken by persons to whom you have granted access to the JIM.com Account. We reserve the right to change the account type, suspend or terminate at any time the JIM.com Account of anyone who provides inaccurate, untrue, or incomplete information, or who fails to comply with the account registration requirements or any of the obligations herein. If we reasonably suspect that your JIM.com Account has been used for an unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your JIM.com Account, and any of your transactions with law enforcement.
2.9. Representations and Warranties. You represent that: (a) you have the right, power, and ability to enter into and perform under these Terms; (b) you are a business (which may be a sole proprietor) located in the United States and are eligible to apply for a JIM.com Account and use the Services; (c) you have, and comply with, all necessary rights, consents, licenses, and approvals for the operation of your business and to allow you to access and use the Services in compliance with these Terms and applicable law; (d) your employees, contractors and agents are acting consistently with these Terms; (e) your use of the Services does not violate or infringe upon any third-party rights; (f) you comply with all applicable laws with respect to your business, your use of the Services and the performance of your obligations under these Terms; and (g) all information you provide to JIM.com, including the Account Information, is accurate and complete.
3. Ownership; Proprietary Rights
3.1. Reservation of Rights. The Service and any visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service provided by JIM.com (“Materials”) are protected by intellectual property and other laws. We own all rights, title, and interest, in and to the Services, the Materials, and all copies thereof. These Terms do not grant you any rights to our trademarks or service marks. Except for the limited licenses granted herein, we reserve all rights not expressly granted to you in these Terms.
3.2. Feedback. You may submit feedback, comments or ideas about the Services (“Feedback”). Submitting Feedback is entirely voluntary, and we will be free to use such Feedback as we see fit without any obligation to you. We will have no obligation to provide you with attribution for any Feedback you provide to us.
4. Fees and Payment
Certain features of the Service may require you to pay fees. Fees will be specified at https://www.jim.com/fees. Unless otherwise specifically provided for in these Terms, all fees are in U.S. Dollars and are non-refundable, except as required by law.
4.1. Price. JIM.com reserves the right to determine pricing for the Service. JIM.com will make reasonable efforts to keep pricing information published on the Service up to date. We encourage you to check our pricing page periodically for current pricing information. JIM.com may change the fees for any feature of the Service, including additional fees or charges, if JIM.com gives you advance notice of changes before they apply. JIM.com, at its sole discretion, may make promotional offers with different features and different pricing to any of JIM.com’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
4.2. Authorization. You authorize JIM.com and its third-party processors to charge all amounts owed by you under these Terms or published by JIM.com in relation to the Services, including all applicable taxes, to any payment methods specified in your JIM.com Account. We may also offset such amounts against amounts we owe to you. If you pay any fees with a credit card, then JIM.com or its third-party processors may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
4.3. Collection of Fees and Other Amounts; Our Set-off Rights. You must pay, or ensure that JIM.com is able to collect, fees and other amounts you owe under these Terms when due. JIM.com may deduct, recoup or setoff fees and other amounts you owe under these Terms or invoice you for those amounts. If you fail to pay invoiced amounts when due or if JIM.com is unable to collect amounts due from you, then JIM.com may, to the extent permitted by applicable law, deduct, recoup or setoff those amounts from any funds held in your account, any amounts payable to you, or any other assets of yours in our possession. You grant us the right to recover funds from you in respect of any amounts that you are obligated to pay to us. You authorize us to administratively freeze or direct any third party bank holding the account to freeze all such accounts to allow us to protect our collection, charge and setoff rights as provided for in this section. Additionally, JIM.com may pursue any other rights or remedies available under these Terms or applicable law to collect such amounts. Your failure to fully pay amounts that you owe us on demand will be a breach of these Terms. You are liable for any of our costs and expenses associated with collection in addition to any amounts owed, including attorneys’ fees and other legal expenses, collection agency fees, and any applicable interest.
5. Security
5.1. Generally. We have implemented technical and organizational measures designed to secure your personal information from accidental destruction, loss, alteration and from unauthorized access, use, alteration, or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You provide your personal information at your own risk.
5.2. Safeguarding Passwords. You are solely responsible for safeguarding your password and for restricting access to the Services from your compatible mobile devices and computer(s). You will immediately notify us of any unauthorized use of your password or JIM.com Account or any other breach of security. You will immediately take all reasonable steps to mitigate the effects of a security breach and will cooperate with JIM.com and provide all information requested by JIM.com to remediate the breach. Any assistance provided by JIM.com in relation to a security breach does not in any way operate as acceptance or acknowledgement that JIM.com is in any way responsible or liable to you or any other party in connection with such breach.
6. Communications and Devices
6.1. Consent to Electronic Communications. You hereby confirm that you have read and agreed to JIM.com’s e-sign consent, available at https://www.jim.com/behind-the-curtain/e-sign. We may provide disclosures and notices required by law and other information about your JIM.com Account to you electronically, by posting it on our website, pushing notifications through the Services, or by emailing it to the email address listed in your JIM.com Account or that you otherwise provided to JIM.com. Electronic disclosures and notices have the same meaning and effect as if we had provided you with paper copies. Such disclosures and notices are considered received by you at the time posted to our website, if within a business day, or immediately, if emailed to you, unless we receive notice that the email was not delivered.
6.2. Communications from us. You consent to accept and receive communications from us, including e-mail, text messages, calls, and push or app notifications to the cellular telephone number you provide to us when you sign-up for a JIM.com Account or update the contact information associated with your JIM.com account. Such communications may include, but are not limited to requests for secondary authentication, receipts, reminders, notifications regarding updates to your account or account support, and marketing or promotional communications. You acknowledge that you are not required to consent to receive promotional texts or calls as a condition of using the Services. Call and text message communications may be generated by automatic telephone dialing systems. Standard message and data rates applied by your cell phone carrier may apply to the text messages we send you.
6.3. Opt-Out. You may opt-out of receiving promotional email communications, promotional phone calls or text messages from JIM.com we send to you by following the appropriate unsubscribe means provided by JIM.com. You acknowledge that opting out of receiving communications may impact your use of the Services.
6.4. Associated Costs. JIM.com may charge you for the costs associated with sending paper copies of communications. Any such charges will be reasonable and will reflect the actual costs incurred by JIM.com. These costs may include, but are not limited to, printing, postage, and handling fees. The exact amount of the charge will be disclosed to you at the time of your request for a paper copy. By requesting a paper copy, you agree to pay the associated costs, which will be billed to your account.
6.5. Compatible Mobile Devices and Third Party Carriers. We do not warrant that the Services will be compatible with your mobile device or carrier. Your use of the Services may be subject to the terms of your agreements with your mobile device manufacturer or your carrier. You may not use a modified device to use the Services if the modification is contrary to the manufacturer’s software or hardware guidelines, including disabling hardware or software controls—sometimes referred to as “jail broken.”
7. Taxes
7.1. Definition. For purposes of these Terms, “Taxes” means any and all present or future taxes, charges, fees, levies or other assessments, including, without limitation, income, telecommunications, value-added, goods (merchandise) and services tax or similar taxes, stamp tax or duty, gross receipts, excise, real or personal property, sales, withholding, social security, occupation, use, severance, environmental, license, net worth, payroll, employment, franchise, transfer and recording taxes, fees and charges, imposed by any domestic or foreign taxing authority, including any penalties, interest or additions to tax.
7.2. Taxes on Services. Notwithstanding the foregoing, JIM.com may charge applicable Taxes on Services, as required by law, which you agree to pay upon demand, unless you provide JIM.com with timely appropriate, complete, and accurate information and documentation satisfying the legal and Tax requirements of the relevant governmental or Tax authority to establish that the otherwise applicable Tax is not required to be charged by JIM.com. You agree to fully indemnify, defend and hold JIM.com harmless against any Tax imposed by a Tax authority for failure to apply correct Taxes if such failure is a result of your failure to provide JIM.com with the correct evidence to support your exemption from such Taxes, as applicable.
7.3. Tax Information. JIM.com may be obligated under applicable laws to report certain information to tax and revenue authorities (“Tax Information”) and/or you with respect to your use of the Services. Upon request, you shall provide JIM.com with the necessary information to complete any applicable Tax Information reporting and recertify such information from time to time, as may be required by applicable law, or otherwise in connection with any Tax audit or examination. If you use our Services you agree that we may report to the applicable Tax and revenue authorities the required Tax Information (including the total number and amount of payments you received during the relevant reporting period). We also may, but are not obligated to, send to you the Tax Information reported.
7.4. Deductions. If applicable, JIM.com shall be entitled to deduct from any payments to you the amount of any applicable withholding Taxes with respect to amounts payable, or any other Taxes, in each case required to be withheld by JIM.com to the extent that JIM.com remits to the appropriate Tax authority on your behalf such Taxes. Any amounts so deducted or withheld shall be treated as having been paid for all purposes of these Terms and JIM.com will not be obliged to increase or gross-up any payment on account of any withholding of Tax.
8. Modification; Termination; Suspension
8.1. Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described herein.
8.2. Termination. If you violate any provision of these Terms, then your authorization to access the Service and these Terms automatically terminate. JIM.com may terminate these Terms, your use of (or access to) the Services (including your JIM.com Account) at any time for any reason. Any termination of these Terms does not relieve you of obligations to pay fees or costs accrued prior to the termination, chargebacks and related costs, and any other amounts owed to us as provided in these Terms. You may also terminate these Terms applicable to your JIM.com Account by deactivating your JIM.com Account at any time.
8.3. Modification of Terms. We may, from time to time, change these Terms (including any Service Terms). Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will be effective 10 days after posting or notice to you of the revisions unless otherwise stated. If you do not agree to the modified Terms, then you should discontinue your use of the Service.
8.4. Modification of Services. We may add or remove, suspend, stop, delete, discontinue or impose conditions on Services or any feature or aspect of a Service. We will take reasonable steps to notify you of termination or these other types of Service changes by email or at the next time you attempt to access your JIM.com Account.
8.5. Suspension. JIM.com may immediately suspend providing any or all Services to you if: (a) JIM.com believes it will violate any applicable law, Network Rule, or requirement of a governmental authority; (b) a governmental authority or a bank with which JIM.com partners to provide the Services; (c) you do not respond in a timely manner to JIM.com’s request for Account Information; (d) you breach these Terms or any other agreement between us; (e) you become insolvent, make a general assignment of your property for the benefit of your creditors or are declared bankrupt, an order of receivership or liquidation is rendered against you or if you attempt to rely on any law governing insolvency, bankruptcy or arrangement with creditors; (f) JIM.com believes that you are engaged in a business, trading practice or other activity that presents an unacceptable risk to JIM.com; or (g) JIM.com believes that your use of the Services (i) is or may be harmful to JIM.com or any third party; (ii) presents an unacceptable level of credit risk; (iii) increases, or may increase, the rate of fraud that JIM.com observes; (iv) degrades, or may degrade, the security, stability or reliability of the Services or any third party’s system (e.g., your involvement in a distributed denial of service attack); (v) enables or facilitates, or may enable or facilitate, illegal or prohibited transactions; or (vi) is or may be unlawful.
8.6. Effect of Termination. If these Terms or your JIM.com Account is terminated or suspended for any reason: (a) the license and any other rights granted under these Terms will end, (b) you agree to immediately terminate and cease use of all Services, and (c) we will not be liable to you or any third party for compensation, reimbursement, or damages for any termination or suspension of the Services, or for deletion of your information or account data.
8.7. Survival. In addition to any payment obligations under these Terms, the following sections of these Terms survive and remain in effect in accordance with their terms upon termination: 2.4 (Your Name), 2.5 (Identity Verification), 2.8 (Disclaimer; Termination), 2.9 (Representations and Warranties), 3 (Ownership; Proprietary Rights), 4 (Fees and Payment), 5 (Security), 7 (Taxes), 8.6(Effect of Termination), 8.7 (Survival), 9 (Indemnity), 11 (No Other Warranties), 12 (Limitation of Liability and Damages), 13 (Third Party Products), 14 (Third Party Service and Links to Other Web Sites), 15 (Dispute Resolution and Arbitration), and 16 (Miscellaneous).
9. Indemnity
You will indemnify, defend, and hold us, our processors and our respective employees, directors, agents, affiliates and representatives, harmless from and against any and all third-party claims and the related costs, losses, damages, judgments, Tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of or in connection with: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in these Terms; (b) your wrongful or improper use of the Services; (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (d) your violation of any law, rule or regulation of the United States or any other country; (e) any inaccuracy in any Tax Information provided hereunder; (f) any third-party claims made by your customer regarding JIM.com’s processing of your customer information in connection with providing you with the Services; (g) any third party’s access or use of the Services with your unique name, password or other appropriate security code; and (h) your failure to comply with the Network Rules or the NACHA Rules, (collectively, the “Indemnified Claims”).
10. Representations and Warranties
You represent and warrant to us that: (a) you have the right, power, and authority to enter into and perform under these Terms; (b) any information you provide in connection with the Services, including but not limited to your business name, accurately and truthfully represents your business or personal identity under which you sell merchandise and services; (c) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to you and/or your business; (d) you will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; (e) your use of the Services will be in compliance with these Terms; (f) you have provided all notices and obtained all rights and consents necessary for you to provide data to us and for us to process such data in accordance with these Terms and the Privacy Policy and (g) you will use the Services only for business purposes and not for personal, household, or family use.
11. No Other Warranties
11.1. THE USE OF “JIM.COM” IN SECTIONS 11 AND 12 MEANS JIM.COM, ITS PROCESSORS, ITS SUPPLIERS, AND ITS LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES).
11.2. THE SERVICES AND ALL MATERIALS AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER IT IS EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, JIM.COM SPECIFICALLY DISCLAIMS (A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. JIM.COM DOES NOT WARRANT, REPRESENT OR GUARANTEE IN ANY WAY THAT THE SERVICE OR ANY MATERIALS AVAILABLE THROUGH THE SERVICE ARE ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, ERROR-FREE, WITHOUT DEFECT OR SECURE; THAT ANY DEFECTS OR ERRORS IN THE SERVICES WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
11.3. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR JIM.COM OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY OF JIM.COM OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY THIRD PARTY, INCLUDING ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA. JIM.COM DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY OR LIABILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY. JIM.COM DOES NOT HAVE CONTROL OF, OR LIABILITY FOR, MERCHANDISE OR SERVICES THAT ARE PAID FOR USING THE SERVICES.
12. Limitations of Liability and Damages
12.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL JIM.COM BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE. IN ALL CASES, JIM.COM WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
12.2. UNDER NO CIRCUMSTANCES WILL JIM.COM BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR JIM.COM ACCOUNT, OR THE INFORMATION CONTAINED THEREIN.
12.3. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS SET FORTH IN SECTION 15.7(B), THE TOTAL AGGREGATE LIABILITY OF JIM.COM IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY, AND (B) $500.
12.4. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF JIM.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
13. Third Party Products.
All third party hardware and other products included, sold or used with the Services are provided solely according to the warranty and other terms specified by the manufacturer or provider, who is solely responsible for service and support for its product. For service, support, or warranty assistance, you should contact the manufacturer directly. JIM.COM MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD PARTY PRODUCTS, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
14. Third Party Services and Links to Other Websites
You may be offered services, products and promotions provided by third parties and not by JIM.com, including, but not limited to, third party developers who use JIM.com’s services (“Third Party Services”). If you decide to use Third Party Services, you will be responsible for reviewing and understanding the terms and conditions for such Third Party Services. We are not responsible or liable for the performance of any Third Party Services. Further, you agree to resolve any disagreement between you and a third party regarding the terms and conditions of any Third Party Services with that third party directly in accordance with the terms and conditions of that relationship, and not JIM.com. The Services may contain links to third party websites. The inclusion of any website link does not imply an approval, endorsement, or recommendation by JIM.com. Such third party websites are not governed by these Terms. You access any such website at your own risk. We expressly disclaim any liability for these websites. Your browsing and interaction on a third party website, including those that have a link in the Services is subject to that website’s own terms, rules and policies.
15. Dispute Resolution and Arbitration
15.1. Generally. Except as described in Section 15.2 and 15.3, you and JIM.com agree that every dispute arising in connection with these Terms, the Service, or communications from us (each, a “Dispute”) will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND JIM.COM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
15.2. Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
15.3. Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 15) within 30 days after the date that you agree to these Terms by sending a letter to JIM.com, Attention: Legal Department – Arbitration Opt-Out, CloudWalk, Inc., 440 N. Wolfe Road Sunnyvale, CA 94085 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once JIM.com receives your Opt-Out Notice, this Section 15 will be void and any action arising out of these Terms will be resolved as set forth in Section 16.3. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
15.4. Arbitrator. This arbitration agreement, and any arbitration between us, is subject the Federal Arbitration Act and will be administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules (or, if deemed by the AAA to be applicable, the Consumer Arbitration Rules) (the “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling AAA at +1-800-778-7879 or by contacting JIM.com.
15.5. Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). JIM.com’s address for Notice of Arbitration is: CloudWalk Inc., 440 N. Wolfe Road Sunnyvale, CA 94085. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or JIM.com may commence an arbitration proceeding. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules and the other party may seek reimbursement for any fees paid to AAA.
15.6. Arbitration Proceedings. Any arbitration hearing will take place in Santa Clara County, California, or if the AAA determines that the Consumer Arbitration Rules apply, then the county and state of your residence unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your residence. During the arbitration, the amount of any settlement offer made by you or JIM.com must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
15.7. Arbitration Relief. Except as provided in Section 15.8, the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by JIM.com before an arbitrator was selected, JIM.com will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator’s award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator’s award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator’s application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.
15.8. No Class Actions. YOU AND JIM.COM AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and JIM.com agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
15.9. Modifications to this Arbitration Provision. If JIM.com makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to JIM.com’s address for Notice of Arbitration, in which case your account with JIM.com will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
15.10. Enforceability. If Section 15.8 or the entirety of this Section 15 is found to be unenforceable, or if JIM.com receives an Opt-Out Notice from you, then the entirety of this Section 15 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 16.3 will govern any action arising out of or related to these Terms.
16. Miscellaneous
16.1. General Terms. These Terms together with the Privacy Policy, the Service Terms, and any applicable additional terms, are a complete statement of the agreement between you and JIM.com regarding the Services. In the event of a conflict between these Terms and any other JIM.com agreement, these Terms will prevail and control the subject matter of such conflict. We may assign these Terms and all rights granted under these Terms at any time without notice or consent. Unless expressly authorized by JIM.com, these Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you and any attempted transfer or assignment will be null and void. If any provision of these Terms is invalid or unenforceable under applicable law, then it will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. These Terms do not limit any rights that we may have under trade secret, copyright, patent, or other laws. No waiver of any term of these Terms will be deemed a further or continuing waiver of such term or any other term.
16.2. Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”), including but not limited to the Service Terms. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
16.3. Governing Law. These Terms and any Dispute will be governed by the Federal Arbitration Act, as set forth above, and by California law and/or applicable federal law, without regard to its choice of law or conflicts of law principles.
16.4. Privacy Policy. Please read the Privacy Policy carefully for information relating to our collection, use, disclosure, and other processing of your personal information. The Privacy Policy is incorporated into and made part of these Terms.
16.5. Third-Party Beneficiaries. No provision in these Terms is intended or shall create any rights with respect to the subject matter of these Terms in any third party.
16.6. Notice to California Residents. If you are a California resident, then under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
16.7. No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.