Updated January 3, 2017
Blackfynn Inc. (“Blackfynn,” “we,” “us,” or “our”) welcomes you. We invite you to access and use our website located at www.blackfynn.com (the “Site”) subject to the following terms and conditions (the “Agreement”).
To use the Blackfynn Platform you must become a Subscriber and agree to the Terms of Subscription Agreement which details the terms of access to and usage of the Platform by Subscribers.
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
1. USE OF SITE
We provide access to the Site as described in this Agreement.
Visitors. Visitors, as the term implies, are people who do not register with us, but want to explore the Site. No login is required for Visitors. Visitors can: (i) view all publicly-accessible content, and (ii) contact us.
Subscribers. Subscribers can do all the things that Visitors can do, and: (i) access and use our Platform; (ii) access exclusive content available only to Subscribers; and (iii) create, access, manage, and update their own accounts on the Platform. Login is required for all Subscribers to access Platform functions.
We are under no obligation to accept any individual as a Subscriber, and may accept or reject any Subscriber in our sole and complete discretion.
The Site is available to individuals 18 years or older. If you are under 18, please do not use the Site. By accessing and using the Site, you represent and warrant that you are at least 18.
3. COMMUNITY GUIDELINES
By visiting the Site, you hereby agree to comply with our community guidelines and that:
You will not use the Site for any unlawful purpose;
You will not access or use the Site to collect any market research for a competing business;
You will not use automated means, including spiders, robots, crawlers, data mining tools, or the like to download or scrape data from the Site, except for Internet search engines (e.g., Google) and non-commercial public archives (e.g., archive.org) that comply with our robots.txt file;
You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure;
You will not interfere with or attempt to interrupt the proper operation of the Site through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Site through hacking, password or data mining, or any other means; and
You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features (e.g., report abuse button) on the Site.
We reserve the right, in our sole and absolute discretion, to deny you access to the Site, or any portion of the Site, without notice and without liability to you, if you fail to adhere to these guidelines.
4. INTELLECTUAL PROPERTY
The Site contains materials, such as software, text, graphics, images, sound recordings, audiovisual works, and other material provided by or on behalf of Blackfynn (collectively referred to as the “Content”). The Content may be owned by us or by third parties. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use the Content except as permitted under this Agreement. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited.
If you violate any part of this Agreement, your permission to access and/or use the Content and the Site automatically terminates.
The trademarks, service marks, and logos of Blackfynn (“Blackfynn Trademarks”) used and displayed on the Site are registered and unregistered trademarks or service marks of Blackfynn. Other company, product, and service names located on the Site may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with Blackfynn Trademarks, the “Trademarks”). Nothing on the Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Blackfynn Trademarks inures to our benefit.
Elements of the Site are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including but not limited to the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
5. COMMUNICATIONS TO US
Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails you send to us, including but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including, but not limited to, the development, production and marketing of products and services that incorporate such information, without compensation or attribution to you.
6. NO WARRANTIES; LIMITATION OF LIABILITY
THE SITE AND THE CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. NONE OF BLACKFYNN, ITS AFFILIATES, SUBSIDIARIES, OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (COLLECTIVELY THE “BLACKFYNN PARTIES”) GUARANTEE THE ACCURACY, COMPLETENESS, TIMELINESS, RELIABILITY, SUITABILITY OR USEFULNESS OF ANY PORTION OF THE SITE OR THE SERVICES. NONE OF BLACKFYNN PARTIES WARRANT THAT USAGE OF THE SITE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SITE, ITS SERVER(S) OR ANY FILES AVAILABLE FOR DOWNLOADING THROUGH THIS SITEARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL ELEMENTS. YOU EXPRESSLY AGREE THAT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THIS SITE, AND THE ACCURACY, TIMELINESS OR COMPLETENESS OF THE CONTENT IS ASSUMED SOLELY BY YOU. NONE OF BLACKFYNN PARTIES MAKE ANY, AND HEREBY SPECIFICALLY DISCLAIM ANY AND ALL, REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, AND WARRANTIES, EXPRESS OR IMPLIED, REGARDING THIS SITE AND THE SERVICES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SITE AND/OR THE SERVICES IS TO STOP USING THE SITE AND/OR THE SERVICES.
IN NO EVENT SHALL ANY OF THE BLACKFYNN PARTIES BE LIABLE FOR SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, REVENUES OR SAVINGS, EVEN IF A BLACKFYNN PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF THE BLACKFYNN PARTIES FOR DIRECT DAMAGES ARISING UNDER THIS AGREEMENT OR RELATING THERETO, EXCEED ONE HUNDRED DOLLARS ($100). BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR NEGLIGENCE, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES, IN SUCH JURISDICTIONS THE BLACKFYNN PARTIES’ LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
YOU ACKNOWLEDGE THAT THE SITE MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. WE ARE NOT RESPONSIBLE FOR ANY TYPOGRAPHICAL, TECHNICAL, OR OTHER ERRORS ON THE SITE. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE SITE AT ANY TIME, WITHOUT NOTICE.
7. EXTERNAL SITES
The Site may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
You will defend, indemnify, and hold harmless Blackfynn, our affiliates, and our and their respective officers, directors, managers, employees, and agents from any and all liabilities, costs, damages, and expenses (including reasonable attorneys’ fees) in connection with any action, claim, or proceeding (each, a “Claim”) arising from your breach of this Agreement or your access to, use or misuse of the Site, or the Content. We shall promptly notify you of any Claim; provide you, at your expense, with reasonable cooperation in the defense of the Claim; and provide you with sole control over the defense and negotiations for a settlement or compromise. Notwithstanding the foregoing, we reserve the right to assume the exclusive defense and control of any Claim that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
9. COMPLIANCE WITH APPLICABLE LAWS
The Site is based in the United States. We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Site, or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
10. TERMINATION OF THE AGREEMENT
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Site at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Site at any time without prior notice or liability.
12. BINDING ARBITRATION
In the event of a dispute arising under or relating to this Agreement or any other products or services provided by us (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before one neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by the Judicial Arbitration and Mediation Services (“JAMS”) pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website http://www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. Nothing in this Agreement will prevent Blackfynn from seeking injunctive relief in any court of competent jurisdiction as necessary to protect Blackfynn’s proprietary interests.
13. CLASS ACTION WAIVER
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
This Agreement is governed by the internal substantive laws of the State of Commonwealth of Pennsylvania, without respect to its conflict of laws provisions. If this Agreement is terminated in accordance with the Termination provision above, such termination shall not affect the validity of the following provisions of this Agreement, which shall remain in full force and effect: “Intellectual Property,” “Communications with Us,” “No Warranties; Limitation of Liability,” “Indemnification,” “Termination of the Agreement,” “Binding Arbitration,” “Class Action Waiver,” and “Miscellaneous.”
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.