Effective date: 06/16/2022
Welcome to Sidebar. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (the “Services”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at:
Phone: +1 619-259-0502
Address: 1127 Virginia Way, La Jolla, CA 92037
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 OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
Will these Terms ever change?
We are constantly trying to improve our Services, so these Terms may need to change along with our Services. We reserve the right to change the Terms at any time, but if we do, we will place a notice on our site located at https://www.teamsidebar.com/, send you an email, and/or notify you by some other means.
If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
What about my privacy?
Children’s Online Privacy Protection Act
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 16 years of age. We do not knowingly collect or solicit personally identifiable information from children under 16 years of age; if you are a child under 16 years of age, please do not attempt to register for or otherwise use the Services or send us any personal information. If we learn we have collected personal information from a child under 16 years of age, we will delete that information as quickly as possible. If you believe that a child under 16 years of age may have provided us personal information, please contact us at firstname.lastname@example.org.
What are the basics of using Sidebar?
You may be required to register for an account, select a password and user name (“Sidebar User ID”), and provide us with certain information or data, such as your contact information and information regarding your employment, your employment-related needs and your career goals. You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your Sidebar User ID a name that you do not have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
You represent and warrant that you are an individual of legal age to form a binding contract.
You will only use the Services for your own, personal use, and not on behalf of or for the benefit of any third party. You will comply with all laws that apply to you, your use of the Services, and your actions and omissions that relate to the Services. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law.
You will not share your Sidebar User ID, account or password with anyone, and you must protect the security of your Sidebar User ID, account, password and any other access tools or credentials. You’re responsible for any activity associated with your Sidebar User ID and account.
Connecting Members through Facilitators
Sidebar provides a platform that enables members to meet with other members for the purpose of engaging in discussions, providing feedback and otherwise assisting one another in achieving their employment and career-related goals. To foster productive and supportive meetings between members, Sidebar engages meeting facilitators (“Facilitators”) who attend members group meetings.
Sidebar uses reasonable efforts to vet each potential Facilitator, including checking each Facilitator's background, experience, and qualifications, before engaging such Facilitator. However, Facilitators are not engaged to provide career coaching services or other advice, and Sidebar is not responsible for any advice, feedback or other information that may be provided by Facilitators in connection with a member meeting or otherwise. Facilitators are employees of Sidebar and not employees, partners, representatives, agents, joint venturers, or independent contractors of members.
In addition, please know that members are not employees, partners, representatives, agents, joint venturers, or independent contractors of Sidebar, and Sidebar does not supervise, direct, control or monitor members. Sidebar expressly disclaims any responsibility and liability for members, including any advice, feedback or other information that may be provided by members. In the event a member relies on any advice, feedback or other information provided by another member, the relying member does so at their own risk.
Members and Facilitators must not enter into separate agreements outside of Sidebar relating to the Services (“Outside Agreements”). If you do enter into any Outside Agreement, we may terminate your Sidebar account, and you acknowledge that Sidebar is not a party to and isn’t responsible for enforcing any Outside Agreement.
Confidentiality of Member Information
Disclosure of Restricted Information or Employer Trade Secrets
In connection with your use of the Services, you may choose to share certain information with other members or a Facilitator, including information related to your job, your colleagues or your employer (such information, “Member Information”). You acknowledge and agree that Sidebar does not require you to share any such Member Information, even if such Member Information is requested by another member or a Facilitator. You are solely responsible for choosing what Member Information to share and represent that you have all necessary rights to share any Member Information that you choose to share with a Facilitator or with other members. You are also responsible for complying with all applicable laws and legal obligations with respect to any Member Information you choose to share, including your obligations under applicable privacy laws and your confidentiality obligations to your employer. While Sidebar does not control the Member Information that you choose to share, including during small group, one-on-one, or other meetings with other members and/or a Facilitator, we recommend that you use anonymized Member Information and generalized information relating to your employer and/or colleagues where possible and to avoid disclosing any information that is not necessary to disclose in connection with your use and enjoyment of the Services. In particular, we recommend that you refrain from sharing any information related to your company’s business, including technical information, product roadmap information, finances, or marketing strategy. This includes the names and any information related to any individuals, projects, clients, business opportunities, or other personal, financial, or proprietary information you have learned or gained access to in connection with your employment. If you share any Member Information through the Services in a manner that violates your legal obligations (including your obligations under applicable privacy laws and your confidentiality obligations to your employer), Sidebar has the right to temporarily or permanently suspend your use of the Services. Notwithstanding the foregoing, Sidebar has no obligation to monitor the Member Information shared by its members and is not responsible for any member’s violation of their legal obligations in connection with the sharing of Member Information. In addition, Sidebar disclaims any and all responsibility or liability for any member’s unauthorized use or disclosure of another member’s Member Information.
Confidentiality of Information Shared by Other Members
You hereby acknowledge that Member Information shared by other members may include sensitive, private, or personal information that may cause harm, including loss of reputation, career opportunity, or personal goodwill if such information is shared with any third party. You hereby agree and represent that you will not share, disclose, or otherwise make public any Member Information of another member obtained by you while using the Services and that you will not use any such Member Information except in connection with the Services. You further acknowledge and agree that any unauthorized use or disclosure of such Member Information would be a material breach of these Terms and may result in claims being brought against you by Sidebar, the disclosing member or their employer.
What about other people I may know that use Sidebar?
To improve your use and enjoyment of the Services, Sidebar may collect information relating to your personal and professional contacts. This includes your connections on social network platforms that you provide Sidebar credentials to access and contacts stored on devices that you use to access the Services, including any contact information stored in connection with your employer and employment. By using the Services, you agree to allow Sidebar to automatically collect information related to your personal and professional contacts from any social network you grant Sidebar permission to access and from any device you use to access the Services. As with your Member Information, you have the responsibility to ensure that you do not share any contact information in a means that would violate any confidentiality, employment, or proprietary-information-related agreement with your employer.
What about messaging?
As part of the Services, you may receive communications through the Services, including messages that Sidebar sends you (for example, via email or SMS). When signing up for the Services, you will receive a welcome message and instructions on how to stop receiving messages. By signing up for the Services and providing us with your wireless number, you confirm that you want Sidebar to send you information that we think may be of interest to you, which may include Sidebar using automated dialing technology to text you at the wireless number you provided, and you agree to receive communications from Sidebar, and you represent and warrant that each person you register for the Services or for whom you provide a wireless phone number has consented to receive communications from Sidebar. You agree to indemnify and hold Sidebar 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.
Are there restrictions in how I can use the Services?
You represent, warrant, and agree that you will not provide or contribute anything, including any Member Information, to the Services, or otherwise use or interact with the Services, in a manner that:
- infringes or violates the intellectual property rights or any other rights of anyone else (including Sidebar and your employer);
- violates the confidentiality or privacy rights of others (including any confidentiality obligations you have to your employer);
- violates any agreement with your employer (including any agreements related to trade secrets, intellectual property, finances, employment, or business operations);
- violates any law or regulation, including, without limitation, any applicable export control laws, privacy laws or any other purpose not reasonably intended by Sidebar;
- is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
- jeopardizes the security of your Sidebar User ID, account or anyone else’s (such as allowing someone else to log in to the Services as you);
- attempts, in any manner, to obtain the password, account, or other security information from any other user;
- violates the security of any computer network, or cracks any passwords or security encryption codes;
- runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
- “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
- copies or stores any significant portion of the Content; or
- decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
Are there any terms specific to me as a Facilitator?
No Facilitator may collect any information from or relating to members, whether via the Services or otherwise, beyond what is necessary to facilitate the Services for the applicable member from or about whom such Member Information was collected. Facilitators shall not retain any information about a member following such time as when such information is no longer necessary to facilitate the Services for the applicable member. Facilitators must collect, use, maintain, and transmit all member information in compliance with all applicable laws.
What are my rights in the Services?
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, Member Information 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 Sidebar's) rights.
Subject to these Terms, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Services is expressly prohibited without prior written permission from us. You understand that Sidebar owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services. The Services may allow you to copy or download certain Content, but please remember that even where these functionalities exist, all the restrictions in this section still apply.
Who is responsible for what I see and do on the Services?
Any information or Content transmitted through the Services 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 Services. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.
The Services may contain links or connections to third-party websites or services that are not owned or controlled by Sidebar. When you access third-party websites or use third-party services, you accept that there are risks in doing so, and that Sidebar is not responsible for such risks.
If there is a dispute between members, or between members and any third party (including a member’s employer), you agree that Sidebar is under no obligation to become involved. In the event that you have a dispute with one or more other members, you release Sidebar, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. You shall and hereby do waive California Civil Code Section 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.”
Will Sidebar ever change the Services?
We’re always trying to improve our Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical. We reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
Do the Services cost anything?
We will charge a subscription fee in connection with your use of the Services, which such fee may be paid by you or your employer. If you are paying for the Services directly (“Member Paid Services”), any payment terms presented to you in the process of using or signing up for the Services are deemed part of these Terms. Note that if you elect to receive text messages through the Services, data and message rates may apply. Any and all such charges, fees or costs are your sole responsibility. You should consult with your wireless carrier to determine what rates, charges, fees or costs may apply to your use of the Services.
- Payment Method. The terms of your payment for Member Paid Services 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.
- Recurring Billing. Some of the Member Paid Services will involve recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Member Paid Services have a recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, GO TO ACCOUNT SETTINGS AT https://www.teamsidebar.com/account/billing.
- Current Information Required. 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 AT ACCOUNT SETTINGS AT https://www.teamsidebar.com/account/billing. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF MEMBER PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR MEMBER PAID SERVICES AS SET FORTH ABOVE.
- Change in Amount Authorized. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
- Auto-Renewal for Member Paid Services. Unless you opt out of auto-renewal, which can be done through your account settings at https://www.teamsidebar.com/account/billing, any Member Paid Services you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. To change or resign your Member Paid Services at any time, go to account settings at https://www.teamsidebar.com/account/billing. If you terminate a Member Paid Service, you may use your subscription until the end of your then-current term, and your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. IF YOU DO NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING MONTHLY BASIS, YOU MUST CANCEL THE APPLICABLE MEMBER PAID SERVICE THROUGH YOUR ACCOUNT SETTINGS AT https://www.teamsidebar.com/account/billing OR TERMINATE YOUR SIDEBAR ACCOUNT BEFORE THE END OF THE RECURRING TERM. MEMBER PAID SERVICES CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, SIDEBAR WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID.
- Reaffirmation of Authorization. Your non-termination or continued use of a Member Paid Service reaffirms that we are authorized to charge your Payment Method for that Member Paid Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Member Paid Service.
- Free Trials and Other Promotions. Any free trial or other promotion that provides access to a Member Paid Service must be used within the specified time of the trial. You must stop using a Member Paid Service before the end of the trial period in order to avoid being charged for that Member Paid Service. If you cancel prior to the end of the trial period and are inadvertently charged for a Member Paid Service, please contact us at email@example.com.
- Employer Paid Services. Some Services may be paid for by your employer (“Employer Paid Services”). The payment terms for Employer Paid Services will be governed by the agreement between Sidebar and your employer. Your use of the Employer Paid Services may be discontinued if your employer stops paying for such Employer Paid Services or if your employment relationship with your employer is terminated.
What if I want to stop using the Services?
Sidebar is also free to terminate (or suspend access to) your use of the Services or your account for any reason in our discretion, including your breach of these Terms. Sidebar has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms; for example, a member who believes that a Facilitator or another member may be in breach of these Terms is not able to enforce these Terms against that Facilitator or other member.
Account termination may result in destruction of any Member Information or other Content associated with your account, so keep that in mind before you decide to terminate your account.
If you have deleted your account by mistake, contact us immediately at firstname.lastname@example.org – we will try to help, but unfortunately, we can’t promise that we can recover or restore anything.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the arbitration agreement.
What about Mobile Applications?
You acknowledge and agree that the availability of our mobile application is dependent on the third party stores from which you download the application, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). Each App Store may have its own terms and conditions to which you must agree before downloading mobile applications from such store, including the specific terms relating to Apple App Store set forth below. You agree to comply with, and your license to use our application is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, these Terms, the more restrictive or conflicting terms and conditions in these Terms apply.
I use the Sidebar App available via the Apple App Store – should I know anything about that?
These Terms apply to your use of all the Services, including our iOS applications (the “Application”) available via the Apple, Inc. (“Apple”) App Store, but the following additional terms also apply to the Application:
- Both you and Sidebar acknowledge that the Terms are concluded between you and Sidebar only, and not with Apple, and that Apple is not responsible for the Application or the Content;
- The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
- You will only use the Application in connection with an Apple device that you own or control;
- You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
- In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
- You acknowledge and agree that Sidebar, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
- You acknowledge and agree that, in the event of any third-party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Sidebar, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
- You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
- Both you and Sidebar acknowledge and agree that, in your use of the Application, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and
- Both you and Sidebar acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple 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.
What else do I need to know?
Warranty Disclaimer. Sidebar 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 (Sidebar and all such parties together, the “Sidebar Parties”) make no representations or warranties concerning the Services, including without limitation regarding any Content contained in or accessed through the Services (including any advice or feedback provided by other members or a Facilitator), and the Sidebar Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Services. The Sidebar Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services. THE SERVICES AND CONTENT ARE PROVIDED BY SIDEBAR (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 SERVICES 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.
Limitation of 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 SIDEBAR 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 SIDEBAR 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.
Indemnity. You agree to indemnify and hold the Sidebar Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. 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).
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Sidebar's prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of California, without regard to the conflicts of laws provisions thereof.
Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Sidebar and limits the manner in which you can seek relief from Sidebar. Both you and Sidebar acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Sidebar'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 Diego County, 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. Sidebar will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. Sidebar 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 Sidebar may assert claims, if they qualify, in small claims court in San Diego County, California or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
(d) Waiver of Jury Trial. YOU AND SIDEBAR WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Sidebar 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 Sidebar over whether to vacate or enforce an arbitration award, YOU AND SIDEBAR 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 CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Sidebar 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: 1127 Virginia Way, La Jolla, CA 92037 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 Sidebar 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 Sidebar agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, San Diego County, 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 Sidebar.
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the Sidebar 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 Sidebar agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Sidebar, 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 Sidebar, and you do not have any authority of any kind to bind Sidebar in any respect whatsoever.
Except as expressly set forth in the sections above regarding the Apple Application and the arbitration agreement, you and Sidebar agree there are no third-party beneficiaries intended under these Terms.