Last Updated: Thu, Sep 8, 2022
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, automatic renewals, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO THE ANYCREEK SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE ANYCREEK SERVICES IN ANY MANNER. If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at:
Phone: +1 329 231 0293
Address: 6445 Massey Lane, Memphis, TN 38120
The AnyCreek Service offers an online platform for users (“Users”) to publish, offer, search for, and book guide services. Users who publish and offer guide services are “Guides” and Users who search for, book, or use services are “Clients.” Guides offer activities, guided trips, excursions, and other services (“Guide Services,” and each Guide Service offering, a “Listing”).
You may be required to sign up for an account, select a password and user name (“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 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.
As the provider of the AnyCreek Service, AnyCreek does not own, control, offer or manage any Listings or Guide Services. AnyCreek is not a party to the contracts entered into directly between Guides and Clients, nor is AnyCreek is acting as an agent in any capacity for any User, except as specified in Section 3.8.
If you are a Guide, you are responsible for understanding and complying with all laws, rules, regulations and contracts with third parties that apply to your Guide Services.
Your use of the AnyCreek Services may also be subject to additional policies, rules and/or conditions AnyCreek may publilsh from time to time, as applicable (“Additional Terms”), which are incorporated herein by reference, and you understand and agree that by using the AnyCreek Services, you agree to also comply with these Additional Terms.
1.1 Independence of Guides. Your relationship with AnyCreek is that of an independent individual or entity and not an employee, agent, joint venturer, or partner of AnyCreek, except that AnyCreek acts as a payment collection agent as described in Section 3.8. AnyCreek does not direct or control your Guide Service, and you agree that you have complete discretion whether and when to provide Guide Services, and at what price and on what terms to offer them.
1.2. Your Guide Service Listing.
1.2.1. Listing a Guide Service.
To list a Guide Service, you must create a Listing and submit the Guide Service to AnyCreek. When listing a Guide Service you must, where applicable, fully educate and inform Clients about (i) any risks inherent or incidental to the Guide Service, (ii) any requirements for participation, such as the minimum age or level of fitness, and (iii) anything else they may need to know to safely participate in the Guide Service (including how to dress, equipment, special certifications or licenses, etc.). AnyCreek reserves the right to decide, in its sole discretion, whether a submitted Guide Service will be published on the AnyCreek Service. You are responsible for setting your price and establishing rules and requirements for your Listing. You must describe any and all fees and charges in your Listing description.
Once your Guide Service is published on the AnyCreek Service, you will have the ability to add dates and times when you offer your Guide Service through the AnyCreek Service. By publishing the availability of your Guide Service on the AnyCreek Service, you agree that people who book through AnyCreek can reserve that the Guide Service for that time period.
1.2.2. Equipment. You are responsible for providing all equipment, including supplies, vehicles, and other materials (“Equipment”) necessary to host your Guide Service. You are solely responsible for ensuring that the Equipment used in your Guide Service is in good working order and conforms to all laws pertaining to safety, equipment, inspection, and operational capability. Except as otherwise required by law, you assume all risk of damage or loss to your Equipment.
1.2.3 Additional Guide Responsibilities. You are responsible for (i) complying with all laws, rules and regulations that may apply to you or your Guide Service, (ii) obtaining any required licenses, permits, or registrations prior to providing your Guide Service; and (iii) ensuring that your Listing of a Guide Service will not breach any agreement you may have with any third party. You are responsible and liable for your own acts and omissions and are also responsible for the acts and omissions of anyone you allow to participate in providing your Guide Services. You agree to obtain and maintain appropriate insurance for you, your entity, and/or your Guide Service for any and all activities that take place as part your Guide Service.
1.2.4 Your Assumption of Risk. You acknowledge that providing Guide Services carries inherent risks and agree that you assume the entire risk arising out of your access to and use of the AnyCreek Service, offering Guide Services, or any interaction you have with other Users whether in person or online. You agree that you have had the opportunity to investigate the AnyCreek Service and any laws, rules, regulations, or obligations that may be applicable to your Listings or Guide Services and that you are not relying upon any statement of law made by AnyCreek.
1.3. Contracting with Clients. When you accept a booking request, or receive a booking confirmation through the AnyCreek Service, you are entering into a contract directly with the Client, and are responsible for delivering your Guide Service under the terms and at the price specified in your Listing. You are also agreeing to pay applicable fees to AnyCreek for each booking. AnyCreek will deduct amounts you owe from your payout unless we and you agree to a different method. Any terms, policies or conditions that you include in any supplemental contract with Clients must: (i) be consistent with these Terms and the information provided in your Listing, and (ii) be prominently disclosed in your Listing description.
1.4 Cancellations, Refunds, and Booking Modifications. Your cancellation and refund policy must be set forth on the applicable Listing. Clients and Guides are responsible for any booking modifications they agree to make via the AnyCreek Service or direct AnyCreek customer service to make on their behalf (“Booking Modifications”), and agree to pay any additional amounts, fees, or taxes associated with any Booking Modification.
1.5. Taxes. 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 AnyCreek Service (“Taxes”), provided that AnyCreek may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit.
2.1. Booking on AnyCreek.
When you book a Guide Service on a Listing, you are agreeing to pay all charges for your booking including the Listing price, applicable fees and any other items identified during checkout (collectively, “Total Price”). You are also agreeing that AnyCreek may charge the Payment Method (as defined herein) used to book the Listing. When you receive the booking confirmation, a contract for Guide Services (a “Booking”) is formed directly between you and the Guide. In addition to these Terms, you will be subject to, and responsible for complying with, all terms of the Booking, including without limitation, the cancellation policy and any other rules, standards, policies, or requirements identified in the Listing. It is your responsibility to read and understand these rules, standards, policies, and requirements prior to booking a Listing.
A Guide Service Booking entitles you to participate in, attend, or use that Guide Service. You are responsible for confirming that you, and anyone you invite, meet any age, skill, or other requirements. You are responsible for informing the Guide of any medical or physical conditions, or other circumstances that may impact your ability to participate, attend, or use the Guide Service. You may only allow the number of people noted in the Booking to join a Guide Service.
2.2. Cancellations, Refunds, and Booking Modifications. A Guide’s cancellation and refund policy is set forth on the applicable Listing. Clients and Guides are responsible for any Booking Modifications they agree to make via the AnyCreek Service or direct AnyCreek customer service to make on their behalf, and agree to pay any additional amounts, fees, or taxes associated with any Booking Modification.
2.3. Client Responsibility.
You are responsible and liable for your own acts and omissions and are also responsible for the acts and omissions of anyone you invite to join any Guide Service. If you are booking a Guide Service for an additional guest who is a minor or if you bring a minor to a Guide Service, you must be legally authorized to act on behalf of the minor and you are solely responsible for the supervision of that minor.
You acknowledge that many activities carry inherent risks and agree that, to the maximum extent permitted by applicable law, you assume the entire risk arising out of your access to and use of the AnyCreek Service and any Content (as defined in Section 3.1), including your use of any Guide Service or any other interaction you have with other Users whether in person or online. This means it is your responsibility to investigate a Guide Service to determine whether it is suitable for you. For example, Guide Services may carry risk of illness, bodily injury, disability, or death, and you freely and willfully assume those risks by choosing to participate in those Guide Services.
3.1. Content on AnyCreek
The materials displayed or performed or available on or through the AnyCreek Service, including, but not limited to, text, graphics, data, articles, photos, images, illustrations 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 AnyCreek"s) rights.
Subject to these Terms, we grant each User of the AnyCreek Service a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the AnyCreek Service. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the AnyCreek Service is expressly prohibited without prior written permission from us. You understand that AnyCreek owns the AnyCreek Service. 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 AnyCreek Service.
3.2 Responsibility for What You See on the AnyCreek Service
Any information or Content publicly posted or privately transmitted through the AnyCreek Service is the sole responsibility of the person from whom such Content originated, and you access all such information and Content at your own risk, and we aren’t liable for any errors or omissions in that information or Content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the AnyCreek Service. We can’t guarantee the identity of any users with whom you interact in using the AnyCreek Service and are not responsible for which users gain access to the AnyCreek Service.
You are responsible for all Content you contribute, in any manner, to the AnyCreek Service, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it.
The AnyCreek Service may contain links or connections to third-party websites or services that are not owned or controlled by AnyCreek. When you access third-party websites or use third-party services, you accept that there are risks in doing so, and that AnyCreek is not responsible for such risks.
Your interactions with organizations and/or individuals found on or through the AnyCreek Service, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that AnyCreek shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between participants on this site or AnyCreek Service, or between Users and any third party, you agree that AnyCreek is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release AnyCreek, 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 AnyCreek Service. You shall and hereby do waive California Civil Code Section 1542 or 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.”
3.4. Messaging. As part of the AnyCreek Service, you may receive communications through the AnyCreek Service, including messages that AnyCreek sends you (for example, via email or SMS). When signing up for the AnyCreek Service, you will receive a welcome message and instructions on how to stop receiving messages. By signing up for the AnyCreek Service and providing us with your wireless number, you confirm that you want AnyCreek to send you information that we think may be of interest to you, which may include AnyCreek using automated dialing technology to text you at the wireless number you provided, and you agree to receive communications from AnyCreek, and you represent and warrant that each person you register for the AnyCreek Service or for whom you provide a wireless phone number has consented to receive communications from AnyCreek. You agree to indemnify and hold AnyCreek 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 your breach of the foregoing.
3.5. Changes to the AnyCreek Service. We’re always trying to improve the AnyCreek Service, so it may change over time. We may suspend or discontinue any part of the AnyCreek Service, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the AnyCreek Service. We’ll try to give you notice when we make a material change that would adversely affect you, but this isn’t always practical. We reserve the right to remove any Content from the AnyCreek Service 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.
3.6. Payments on the AnyCreek Service.
3.6.1. Fees. AnyCreek may charge fees (and applicable Taxes) to Users for their use of the AnyCreek Service. More information about when service fees apply and how they are calculated can be found on our fees page. Except as otherwise provided on the AnyCreek Service, service fees are nonrefundable. AnyCreek reserves the right to change the service fees at any time, and will provide Users notice of any fee changes before they become effective. Fee changes will not affect bookings made prior to the effective date of the fee change. If you disagree with a fee change you may terminate this agreement at any time pursuant to the terms herein.
3.6.3. Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE THROUGH YOUR ACCOUNT SETTINGS. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE (OR AN APPICABLE GUIDE) MAY TERMINATE ANY GUIDE SERVICES.
3.7. Payment for Guide Services.
3.7.1. Payment Collection. AnyCreek generally collects the payment for a booking at the time the Client’s booking request is accepted by the Guide, unless noted otherwise. In order for a Guide to receive a payment (“Guide Payment”) a Guide must have a valid Payment Method linked to your account.
3.7.2. Timing of Guide Payment. Subject to and conditional upon successful receipt of the payments from Client, AnyCreek will generally initiate Guide Payments to your selected Payment Method at the time specified via the AnyCreek Service. The time it takes to receive Guide Payments once released by AnyCreek may depend upon the Payment Method you select.
3.7.3. Guide Payment. The Guide Payment paid to Guides for a booking will be the Total Price less applicable fees (which may include AnyCreek fees.) and applicable taxes. In the event of cancellation of a confirmed booking, AnyCreek will remit the amount you are due (if any) as provided in the Terms and applicable cancellation policy. AnyCreek may temporarily place a hold, suspend, or cancel any Guide Payment for purposes of preventing unlawful activity or fraud, risk assessment, security, or completing an investigation; or if we are unable to verify your identity, or to obtain or verify requested information.
3.8 Appointment of AnyCreek as Limited Payment Collection Agent for Guides.
3.8.1 Each Guide hereby appoints AnyCreek as the Guide’s payment collection agent solely for the limited purpose of accepting and processing funds from Clients purchasing Guide Services on the Guide’s behalf.
3.8.2 Each Guide agrees that payment made by a Client through AnyCreek, shall be considered the same as a payment made directly to the Guide, and the Guide will provide the Guide Service booked by the Client in the agreed-upon manner as if the Guide has received the payment directly from the Client. Each Guide agrees that AnyCreek may refund the Client in accordance with the Terms. Each Guide understands that AnyCreek’s obligation to pay the Guide is subject to and conditional upon successful receipt of the associated payments from Client. AnyCreek guarantees payments to Guide(s) only for such amounts that have been successfully received by AnyCreek from Clients in accordance with these Terms. In accepting appointment as the limited payment collection agent of the Guide, AnyCreek assumes no liability for any acts or omissions of the Guide.
3.8.3 Each Client acknowledges and agrees that, notwithstanding the fact that AnyCreek is not a party to the agreement between you and the applicable Guide, AnyCreek acts as each Guide’s payment collection agent for the limited purpose of accepting payments from you on behalf of the Guide. Upon a Client’s payment of the funds to AnyCreek, the Client’s payment obligation to the Guide for the agreed upon amount is satisfied, and AnyCreek is responsible for remitting the funds successfully received to the Guide. In the event that AnyCreek does not remit any such amounts, the Guide will have recourse only against AnyCreek and not the Client directly.
3.9. AnyCreek Service Restrictions.
You represent, warrant, and agree that you will not provide or contribute anything, including any Content (as that term is defined herein), to the AnyCreek Service, or otherwise use or interact with the AnyCreek Service, in a manner that:
A violation of any of the foregoing is grounds for termination of your right to use or access the AnyCreek Service.
3.10. Termination, Suspension and other Measures.
3.10.1 Term. The agreement between you and AnyCreek reflected by these Terms is effective when you access the AnyCreek Service (for example to create an account) and remains in effect until either you or we terminate the agreement in accordance with these Terms.
You may terminate this agreement at any time by sending us an email or by removing your Guide Services from the AnyCreek Service. AnyCreek may terminate this agreement immediately and without notice and stop providing access to the AnyCreek Service if you materially breach Terms or any applicable policies, you violate applicable laws, or we reasonably believe termination is advisable to protect AnyCreek, its Users or third parties.
If a Listing has been inactive for 180 or more days, we may remove it from AnyCreek. If your account has been inactive for more than two years, we may terminate your account without prior notice.
3.10.3 User Violations. If (i) you breach these Terms or applicable policies, (ii) you violate applicable laws, regulations, or third-party rights, (iii) AnyCreek believes it is reasonably necessary to protect AnyCreek, its Users, or third parties, or (iv) AnyCreek determines it is reasonably necessary to comply with applicable law, or the order or request of a court, law enforcement, or other administrative agency or governmental body; AnyCreek may, with or without prior notice:
Where otherwise appropriate, as AnyCreek determines in its sole discretion, you will be given notice of any intended measure by AnyCreek and an opportunity to resolve the issue. You may appeal actions taken by us under this Section by contacting customer service. If a Booking is cancelled under this Section, the amount paid to the Guide will be reduced by the amount we refund or otherwise provide to the Client, and by any other costs we incur as a result of the cancellation.
3.10.4 Effect of Termination. If you are a Guide and terminate your AnyCreek account, any confirmed bookings will be automatically cancelled and your Clients will receive a full refund. If you terminate your account as a Client, any confirmed bookings will be automatically cancelled and any refund will depend upon the terms of the Booking’s cancellation policy. When this agreement has been terminated, you are not entitled to a restoration of your account or any of your Content. If your access to or use of the AnyCreek Service has been limited, or your AnyCreek account has been suspended, or this agreement has been terminated by us, you may not register a new account or access or use the AnyCreek Service through an account of another User. 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.
We are constantly trying to improve the AnyCreek Service, so these Terms may need to change along with it. We reserve the right to change the Terms at any time, but if we do, we will place a notice on our site, 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 AnyCreek Service. If you use the AnyCreek Service 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.
3.12. AnyCreek’s Control.
AnyCreek offers the use of a platform that enables Users to publish, offer, search for, and book Guide Services. We do not and cannot control the conduct of Clients and Guides. You acknowledge that AnyCreek has the right, but does not have any obligation, to monitor the use of the AnyCreek Service and verify information provided by our Users. Users agree to cooperate with and assist AnyCreek in good faith, and to provide AnyCreek with such information and take such actions as may be reasonably requested by AnyCreek with respect to any investigation undertaken by AnyCreek regarding the use or abuse of the AnyCreek Service. AnyCreek is not acting as an agent for any User except for where AnyCreek acts as a collection agent as provided in the Payments Terms.
3.13. User Accounts.
You must register User ID to access and use many features of the AnyCreek Service, and must keep your account information accurate.
Additionally, you may be able to access certain parts or features of the AnyCreek Service by using your account credentials from other services (each, a “Third Party Account”), such as those offered by Google, Facebook, Twitter, Amazon, Instagram, and YouTube. By using the AnyCreek Service through a Third Party Account, you permit us to access certain information from such account for use by the AnyCreek Service. You are ultimately in control of how much information is accessible to us and may exercise such control by adjusting your privacy settings on your Third Party Account.
You represent and warrant that you are an individual of legal age to form a binding contract. You will only use the AnyCreek Service for your own internal, personal use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the AnyCreek Service is prohibited by applicable laws, then you aren’t authorized to use the AnyCreek Service. We can’t and won’t be responsible for your using the AnyCreek Service in a way that breaks the law.
You will not share your User ID, account or password with anyone, and you must protect the security of your User ID, account, password and any other access tools or credentials. You’re responsible for any activity associated with your User ID and account.
3.14. Disclaimer of Warranties.
AnyCreek 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 (AnyCreek and all such parties together, the “AnyCreek Parties”) make no representations or warranties concerning the AnyCreek Service, including without limitation regarding any Content contained in or accessed through the AnyCreek Service, and the AnyCreek Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the AnyCreek Service 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 AnyCreek Service. The AnyCreek Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the AnyCreek Service. Without limiting the foregoing, (i) we do not endorse or warrant the existence, conduct, performance, safety, quality, legality or suitability of any Client, Guide, Guide Service, Listing, Booking, or third party; and (ii) we do not warrant the performance or non-interruption of the AnyCreek Service. THE SERVICES AND CONTENT ARE PROVIDED BY ANYCREEK (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, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE ANYCREEK PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
3.15. Limitations on Liability.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE ANYCREEK PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE-HUNDRED ($100) DOLLARS OR (II) THE AMOUNTS PAID AND/OR PAYABLE BY YOU TO ANYCREEK IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
You agree to indemnify and hold the AnyCreek 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 AnyCreek Service (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
3.17. 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 California, without regard to the conflicts of laws provisions thereof.
3.18. Arbitration Agreement.
Please read the following arbitration agreement carefully because it requires you to arbitrate certain disputes and claims with AnyCreek and limits the manner in which you can seek relief from AnyCreek. Both you and AnyCreek acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, AnyCreek"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 San Francisco, California. 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. AnyCreek will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. AnyCreek 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 AnyCreek may assert claims, if they qualify, in small claims court in 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 ANYCREEK WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and AnyCreek 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 AnyCreek over whether to vacate or enforce an arbitration award, YOU AND ANYCREEK 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 SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor AnyCreek 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: [MAILING ADDRESS] 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 AnyCreek 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 AnyCreek agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, San Francisco, California, 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 AnyCreek.
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 AnyCreek Service, provided that the AnyCreek 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 AnyCreek agree that these Terms are the complete and exclusive statement of the mutual understanding between you and AnyCreek, 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 AnyCreek, and you do not have any authority of any kind to bind AnyCreek in any respect whatsoever.
Except as expressly set forth in the sections above regarding the arbitration agreement, you and AnyCreek agree there are no third-party beneficiaries intended under these Terms.