You understand and agree that (i) our electronic products and other hardware and physical products, and the firmware contained therein (collectively, “Cheerble Hardware”) and (ii) our software controlling the Cheerble Hardware (“Cheerble Software”) are not considered part of the Site. The terms and any warranties that apply to Cheerble Hardware and Cheerble Software are included with such Cheerble Hardware and Cheerble Software.
These Terms provide that all disputes between you and Cheerble will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under these Terms, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review Section 17 (“Dispute Resolution and Arbitration”) of these Terms for the details regarding your agreement to arbitrate any disputes with Cheerble.
You must be at least 15 years of age to access the Site. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 15 years of age; (b) you have not previously been suspended or removed from the Site; and (c) your access to the Site is in compliance with all applicable laws and regulations. If you are accessing the Site on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
2. Accounts and Registration
To access certain features of the Site, you may be required register for a Cheerble account. When you register for a Cheerble account, you will be required to provide us with some information about yourself, such as your email address or other contact information. You represent and warrant that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your Cheerble account and password, and you accept responsibility for all activities that occur under your Cheerble account.
3. Purchases; Additional Terms and Conditions
Purchases of goods or services, and specific sections of the Site may be subject to additional terms and conditions; all additional terms are incorporated into these Terms by reference. You agree to abide by all such other terms and conditions, including representations of having sufficient legal age to use certain portions of the Site or services. If there are any conflicts between these Terms and terms that are specific to a section of the Site or specific to a particular service offered by the Site, you agree that the latter terms will control with respect to your use of that section of the Site or those particular services.
4. User Content
4.1 User Content Generally.
Certain features of the Site may permit users to upload content to the Site, including messages, reviews, photos, video, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on the Site. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Site.
4.2 Limited License Grant to Cheerble.
By posting or publishing User Content, you grant Cheerble a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
4.3 Limited License Grant to Other Users.
By posting or sharing User Content with other users of the Site, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Site.
4.4 User Content Representations and Warranties.
You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that: a) you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Cheerble and users of the Site to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by Cheerble, the Site, and these Terms; b) your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Cheerble to violate any law or regulation.
4.5 User Content Disclaimer.
Cheerble is under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Cheerble may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when accessing the Site you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Cheerble with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Cheerble does not permit copyright-infringing activities on the Site.
4.6 Digital Millennium Copyright Act.
a). DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have a copyright-related complaint about material posted on the Site, you may contact our Designated Agent at the following address: Attn: DMCA Notice; Address: Shenzhen Cheerble Co., Ltd., 10-103, 10/F CCSS, 3331 Zhongxin Road, Nanshan District, Shenzhen 518000, China; Telephone +86-0755-33942569; Email: firstname.lastname@example.org. PLEASE NOTE THAT UNDER UNITED STATES FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES. Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must comply with elements of notification as described in 17 U.S.C. §512.b). Repeat Infringers. Cheerble will promptly terminate without notice the accounts of users that are determined by Cheerble to be “Repeat Infringers.” A Repeat Infringer is a user who has been repeatedly notified of infringing activity or has had User Content repeatedly removed from the Site.
5. Using the Site
By using the Site, and by entering into these Terms, you represent and warrant that your use of the Site complies and will comply with all applicable laws, statutes, and regulations, and that you will not use the Site except as expressly permitted under these Terms. For users located in China, you agree to comply with the “People’s Republic of China on Guarding State Secrets Law,” “Copyright Law of People’s Republic of China,” “Regulations on Protection of Computer Information System Security People’s Republic of China,” “Regulations on Computer Software Protection,” “Internet Electronic Bulletin Site Management Requirements,” “Information Network Transmission Right Protection Ordinance” and other applicable laws and regulations, the implementation approach. Cheerble reserves the right to review, remove, or disable access to User Content in violation of the applicable laws and regulations in China. Cheerble also welcomes users to report any User Content that is in violation of applicable laws or regulations.
6. Prohibited Conduct
By using the site you agree not to:
6.1 Access the Site for any illegal purpose or in violation of any local, state, national, or international law;
6.2 Conduct activities that may be harmful to others or that could damage Cheerble‘s reputation;
6.3 Violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right or violating any third party’s right to privacy;
6.4 Interfere with security-related features of the Site, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Site except to the extent that the activity is expressly permitted by applicable law;
6.5 Interfere with the operation of the Site or any user’s enjoyment of the Site, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Site; (c) attempting to collect personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Site, or violating any regulation, policy, or procedure of any such network, equipment, or server;
6.6 Perform any fraudulent activity in connection with your obtaining or accessing the Sites, including impersonating any person or entity, claiming a false affiliation, accessing any other Cheerble account without permission, or falsifying your age or date of birth;
6.7 Sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 10) or any right or ability to view, access, or use any Materials;
6.8 Bypass any security or other features of the Site designed to control the manner in which the Site is used, harvest or mine User Content from the Site, or otherwise access or access the Site in a manner inconsistent with individual human usage;
6.9 Use any robot, spambot, spider, crawler, scraper or other automated means or interface not provided by us to access the Site or to extract data;
6.10 Use, display, mirror, frame or utilize framing techniques to enclose the Site or User Content, or any portion thereof, unless and solely to the extent Cheerble makes available the means for embedding any part of the Site or the User Content;
6.11 Access, tamper with, or use non-public areas of the Site, Cheerble’s (and any of its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Cheerble’s providers;
6.12 Access the Site in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party;
6.13 Sell or otherwise transfer the access granted under these Terms or any Materials or any right or ability to view, access, or use any Material;
6.14 Attempt to do any of the acts described in this Section 6, or assist or permit any person in engaging in any of the acts described in this Section 6.
7. Termination of Use; Discontinuation and Modification of the Site
If you violate any provision of these Terms, your permission from us to access the Site will terminate automatically. In addition, Cheerble may in its sole discretion terminate your Cheerble account or suspend or terminate your access to the Site at any time for any reason or no reason, with or without notice. We also reserve the right to modify or discontinue the Site or features of the Site at any time, temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Site or any suspension or termination of your access to or access to the Site. Without limiting the foregoing, you understand and agree that in any termination or suspension of your account or the Site, you will not have access to any data or content posted to the Site or otherwise contained in the Site, and we will have no responsibility to provide you access to such data or content. You may terminate your Cheerble account at any time by contacting customer service at email@example.com.
8.2 Additional Terms
Your access to the Site is subject to all additional terms, policies, rules, or guidelines applicable to the Site (the “Additional Terms”), such as the Cheerble Store’s Terms of Sale, if available. All Additional Terms are incorporated by this reference into and made a part of these Terms.
9. Modification of these Terms
We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. Modified versions of these Terms are effective upon their publication. If we make material changes to the Terms, we will attempt to provide you reasonable notice before such changes become effective. By continuing to access the Site, you agree to be bound by the updated, amended, or modified Terms. If you do not agree to be bound by the modified Terms, you must immediately cease your access to or use of the Site. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
10. Ownership; Proprietary Rights
The Site is owned and operated by Cheerble. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Site (“Materials”) provided by Cheerble are protected by intellectual property and other laws. All Materials contained in the Site are the property of Cheerble and its third-party licensors. Except as expressly authorized by Cheerble, you may not make use of the Materials. Cheerble reserves all rights to the Materials not granted expressly in these Terms.
If you choose to provide input or suggestions regarding problems with, or proposed modifications or improvements to, the Site or any of the services or products made available by Cheerble (“Feedback”), then you hereby grant Cheerble an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit such Feedback in any manner and for any purpose with no duty to make any payments to you for such exploitation.
You are responsible for your access to the Site. You will defend and indemnify Cheerble and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Cheerble Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Site; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy, right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
13. Disclaimers; No Warranties.
THE SITE, AND ALL MATERIALS AND USER CONTENT AVAILABLE THROUGH THE SITE, ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE CHEERBLE ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SITE, AND ALL MATERIALS AND USER CONTENT AVAILABLE THROUGH THE SITE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE CHEERBLE ENTITIES DO NOT WARRANT THAT THE SITE OR ANY PORTION OF THE SITE, OR ANY MATERIALS OR USER CONTENT OFFERED THROUGH THE SITE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SITE, OR ANY MATERIALS OR USER CONTENT AVAILABLE THROUGH THE SITE, WILL CREATE ANY WARRANTY REGARDING ANY OF THE CHEERBLE ENTITIES OR THE SITE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SITE, AND ANY MATERIALS OR USER CONTENT AVAILABLE THROUGH THE SITE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SITE AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY PERSONAL INJURY, DEATH, DAMAGE TO YOUR PROPERTY OR THIRD PARTY PROPERTY, OR THE LOSS OF DATA THAT RESULTS FROM YOUR USE OF OR INABILITY TO USE THE SITE.
NOTWITHSTANDING THE FOREGOING, CHEERBLE DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT CHEERBLE IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
14. Limitation of Liability
IN NO EVENT WILL THE CHEERBLE ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SITE, OR ANY MATERIALS, OR USER CONTENT AVAILABLE THROUGH THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY CHEERBLE ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 17.4(iii), THE AGGREGATE LIABILITY OF THE CHEERBLE ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SITE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 14 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
15. Governing Law
These Terms are governed by the laws of the State of California without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, then you and Cheerble agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California for the purpose of litigating any dispute. We make no representation that the Site or any Materials included in the Site are appropriate or available for use in your location.
17. Dispute Resolution and Arbitration
In the interest of resolving disputes between you and Cheerble in the most expedient and cost effective manner, you and Cheerble agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND Cheerble ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Despite the provisions of Section 17.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Any arbitration between you and Cheerble will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Cheerble.
17.4 Notice; Process
A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Cheerble’s address for Notice is: 10-103, 10/F CCSS, 3331 Zhongxin Road, Nanshan District, Shenzhen 518000, China. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Cheerble may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Cheerble must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Cheerble will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Cheerble in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
If you commence arbitration in accordance with these Terms, Cheerble will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Francisco County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Cheerble for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
17.6 No Class Actions
YOU AND Cheerble AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Cheerble agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
17.7 Modifications of This Arbitration Provision
If Cheerble makes any future change to this arbitration provision, other than a change to Cheerble’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Cheerble’s address for Notice, in which case your account with Cheerble will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
If Section 17.6 is found to be unenforceable or if the entirety of this Section 17 is found to be unenforceable, then the entirety of this Section 17 (other than, in the latter case, Section 17.6) will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 15 will govern any action arising out of or related to these Terms.
18. Consent to Electronic Communications
19. Contact Information
The Site is offered by Shenzhen Cheerble Co., Ltd. and its affiliated companies, located at 10-103, 10/F CCSS, 3331 Zhongxin Road, Nanshan District, Shenzhen 518054, China. You may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org.