Terms

Overview

This Terms of Service Agreement (“Agreement”) is a legal agreement between The San Francisco Sailing Club, Inc. d/b/a Muddy, its affiliates, or its agents (collectively, “Muddy”) and the users of the Service (“you”, “your”, or “user”) who registered. This Agreement describes the terms and conditions that apply to your use of the website located at feelmuddy.com (the “Website”), the mobile application, and the desktop application (the mobile and desktop applications are collectively the “Application”). Muddy offers a Software-as-a-Service solution that provides users the ability to manage all their webpages all in one place. The Services allows users to share their real-time activities with other authorized users, all while empowering users to experience the web together. Certain features of the Website may be subject to additional guidelines, terms, or rules, which will be posted on the Website in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into this Agreement.

Please read this agreement carefully. This website, the applications, and the information on it are controlled by Muddy. This agreement governs the use of the website and apply to all internet users visiting the website. By accessing or using the website or application in any way, including using the services or resources available or enabled via the website or application (each a “service” and collectively the “services”), by clicking on the “I accept” button, completing the registration process, and/or browsing the website or downloading Muddy's application, you represent that (1) you have read, understand, and agree to be bound by the terms of use, (2) you are of legal age to form a binding contract with Muddy, and (3) you have the authority to enter into this agreement personally or on behalf of the entity you have named as the user, and to bind that entity to the agreement. The term “you” refers to the individual or legal entity, as applicable, identified as the user when you registered on the website. If you do not agree to be bound by the terms of use, you may not access or use the services.

If you subscribe to the services for a term (the “initial term”), then the terms will be automatically renewed for additional one (1) month periods at Muddy's then-current fee for such services unless you decline to renew your subscription in accordance with section 8.6 (automatic renewal) below.

Please be aware that section 14 contains provisions governing how to resolve disputes between you and Muddy. Among other things, section 14 includes an agreement to arbitrate which requires, with limited exceptions, that all disputes between you and us shall be resolved by binding and final arbitration. Section 14 also contains a class action and jury trial waiver. Please read section 14 carefully.

Unless you opt out of the agreement to arbitrate within 30 days: (1) you will only be permitted to pursue disputes or claims and seek relief against us on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding and you waive your right to participate in a class action lawsuit or class-wide arbitration; and (2) you are waiving your right to pursue disputes or claims and seek relief in a court of law and to have a jury trial.

Any dispute, claim or request for relief relating in any way to your use of the site will be governed and interpreted by and under the laws of the state of California, consistent with the federal arbitration act, without giving effect to any principles that provide for the application of the law of any other jurisdiction. The united nations convention on contracts for the international sale of goods is expressly excluded from this agreement.

Please be aware that section 1.7 (Muddy communications) of this agreement, below, contains your opt-in consent to receive communications from us, including via e-mail and push notifications.

Please note that the agreement is subject to change by Muddy in its sole discretion at any time. When changes are made, Muddy will make a new copy of the Agreement available in the Services. We will also update the “Last Updated” date at the top of the Terms of Service Agreement. Muddy may require you to provide consent to the updated Agreement in a specified manner before further use of the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of such change(s). Please regularly check the website to view the then-current terms.

1. Use of the services & the services

1.1 How the services works

The Services offers users a solution to streamline multiple website windows all in one location. Users can add various window tabs into the Services, while also allowing users to share their real-time activity on these pages with other users.

1.2 Your use of the services

The Services and the information and content available on the Services are protected by copyright laws throughout the world. Subject to the Agreement, Muddy grants you a limited license to reproduce portions of the Services for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Muddy in a separate license, your right to use any and all the Services is subject to the Agreement.

1.3 Application license

Subject to your compliance with the Agreement, Muddy grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple Media Terms of Service, except that such App Store Sourced Application may be accessed, acquired, and used by other accounts associated with the purchaser via Apple’s Family Sharing function, volume purchasing, or Legacy Contacts function. Notwithstanding the first sentence in this section, with respect to any Application accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the Application on a shared basis within your designated family group.

1.4 License to the software

Use of the Software is subject to any additional third-party terms, including any payment terms, made available to you in connection with such Software. These license terms may be posted at the Website page where the Software can be accessed. “Software” means Muddy's proprietary software that empowers streamlined web browsing with multiple users. You shall not access, use, download or install any Software (including without limitation any SDK, API, or API key) that is accompanied by or includes a license agreement unless you agree to the terms of such license agreement and this Agreement. At no time will Muddy provide you with any tangible copy of our Software. Muddy shall deliver access to the Software via electronic transfer and shall not use or deliver any tangible media in connection with the (a) delivery, installation, updating or problem resolution of any Software (including any new releases); or (b) delivery, correction or updating of documentation. For the purposes of this section tangible media shall include, but not be limited to, any compact disk, card, flash drive, or any other comparable physical medium. Any redistribution of the Software is prohibited except as expressly set forth in the applicable license agreement, including any redistribution or use on a service bureau basis. If there is any conflict between the Agreement and the license agreement, the license agreement shall take precedence in relation to that Software (except as provided in the following sentence). If the Software is a pre-release version, then, notwithstanding anything to the contrary included within an accompanying license agreement, you are not permitted to use or otherwise rely on the Software for any commercial or production purposes. If no license agreement accompanies use of the Software, use of the Software will be governed by the Agreement. Subject to your compliance with the Agreement, Muddy grants you a non-assignable, non-transferable, revocable non-exclusive license to use the Software for the sole purpose of enabling you to use the Services in the manner contemplated and to the extent permitted by the Agreement. Some Software may be offered under an open source license that we will make available to you. There may be provisions in the OSS licenses that expressly override some of these terms.

1.5 Use of the desktop application

Our desktop application is a Software tool that you may download to access the Services on your desktop (collectively, the “Desktop Application”). Subject to your compliance with the Agreement, we hereby grant you a non-exclusive, non-transferable, non-sublicensable, revocable license to use and display the Desktop Application for your own personal or internal business purposes. You may not use the Desktop Application for any other purpose without our prior written consent, and nothing in the Agreement shall be deemed to grant you any right, title or interest in the Desktop Application. In addition, you may not:

1. Use the Desktop Application to offer or promote, or otherwise use the Desktop Application in association with, any products or services for sale;
2. Use the Desktop Application (or any content displayed in connection with or through it) in any manner that would constitute an endorsement by us of any product, service, activity or brand contained on your website;
3. Place the Desktop Application on any website that includes content that is offensive, harassing, threatening, abusive, discriminatory, vulgar, pornographic, or otherwise inappropriate, as determined by us in our sole discretion; or
4. Use the Desktop Application in any manner that prevents the end users of your website from linking directly to the application page of our Website.

We reserve the right to discontinue providing the desktop application at any time, or to direct you to cease displaying, or otherwise using, the desktop application for any or no reason, without liability to you or any third party.

1.6 Updates

You understand that the Services are evolving. As a result, Muddy may require you to accept updates to the Services that you have installed on your computer or mobile device. You acknowledge and agree that Muddy may update the Services with or without notifying you. You may need to update third-party software from time to time in order to use the Services.

1.7 Certain restrictions

The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services, including the Website; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other the Services (including images, text, page layout or form) of Muddy; (c) you shall not use any metatags or other “hidden text” using Muddy's name or trademarks;(d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any future release, update or other addition to the Services shall be subject to the Agreement. Muddy, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any part of the Services terminates the licenses granted by Muddy pursuant to the Agreement.

1.8 Muddy communications

By entering into this Agreement or using the Services, you agree to receive communications from us, including via e-mail and push notifications. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Services, updates concerning new and existing features on the Services, communications concerning promotions run by us or our third-party partners, and news concerning the Muddy and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send.

2. Registration

2.1 Registering your account

In order to access certain features of the Services, you will have to register an account on the Service (“Registered User”). When registering for an account (“Account”), you must provide certain information about yourself as prompted by the Service. You represent and warrant that: (a) all required registration information you submit is true and accurate; and (b) you will maintain and promptly update such information to keep it true and accurate. If you provide any information that is untrue, inaccurate, not current or incomplete, or Muddy has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Muddy has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account or use the Services if you have been previously removed by Muddy, or if you have been previously banned from any of the Services. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Muddy.

2.2 No subsequent registration

If your registration(s) with, or ability to access, the Services or any other Muddy community, is discontinued by Muddy due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Services or any Muddy community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those the Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, Muddy reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.

2.3 Your account

Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Muddy.

3. Responsibility for content

3.1 Types of Content

You acknowledge that all Content, including the Services, is the sole responsibility of the party from whom such Content originated. This means that you, and not Muddy, are entirely responsible for all Content, whether or not it is your original Content, that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Services (“Your Content”), and that you and other Registered Users of the Services, and not Muddy, are similarly responsible for all Content that you and they Make Available through the Services (“User Content”).

3.2 No Obligation to Pre-Screen Content

‍You acknowledge that Muddy has no obligation to pre-screen Content (including, but not limited to, User Content), although Muddy reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Muddy pre-screens, refuses or removes any Content, you acknowledge that Muddy will do so for Muddy's benefit, not yours. Without limiting the foregoing, Muddy shall have the right to remove any Content that violates the Agreement or is otherwise objectionable.

3.3 Storage

Unless expressly agreed to by Muddy in writing elsewhere, Muddy has no obligation to store any of Your Content that you Make Available on the Services. Muddy has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Muddy retains the right to create reasonable limits on Muddy's use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Muddy in its sole discretion.

3.4 Use of Social Networking Services

Users can drag and drop their social networking sites (“Third-Party Account”) into the Services. You represent that you are authorized to grant Muddy access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Muddy to pay any fees or making Muddy subject to any usage limitations imposed by such third-party service providers. By granting Muddy access to any Third-Party Accounts, you understand that Muddy may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Services (collectively, “Content”) that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through the Services via your Account. Unless otherwise specified in the Agreement, all SNS Content shall be considered to be Your Content (as defined in Section 3.1 (Types of Content)) for all purposes of the Agreement. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the Services. Please note that if a Third-Party Account becomes unavailable, or Muddy access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through the Services. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND MUDDY DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Muddy makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Muddy is not responsible for any SNS Content.

4. Ownership

4.1 The services

Except with respect to Your Content and User Content, you agree that Muddy and its suppliers own all rights, title and interest in the Services including but not limited to, any computer code, themes, objects, artwork, animations, sounds, moral rights, documentation, and Muddy software. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any the Services.

4.2 Trademarks

Above logo and all related graphics, logos, service marks and trade names used on or in connection with any the Services or in connection with the Services are the trademarks of Muddy and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.

4.3 Your content

Muddy does not claim ownership of Your Content. However, when you as a Registered User post or publish Your Content on or in the Services, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.

4.4 License to Your Content

Subject to any applicable account settings that you select, you grant Muddy a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing the Services to you and to our other Registered Users. Please remember that other Registered Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Services. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Muddy, are responsible for all of Your Content that you Make Available on or in the Services. You may not post or submit for print services a photograph of another person without that person’s permission.

4.5 Username

Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments, or any other area on the Services, you hereby expressly permit Muddy to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.

4.6 Feedback

You agree that submission of any ideas, suggestions, documents, and/or proposals to Muddy through its suggestion, feedback, forum, or similar pages (“Feedback”) is at your own risk and that Muddy has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Muddy a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Muddy's business.

5. User conduct

As a condition of use, you agree not to use the Services for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) Make Available any Content on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Muddy's prior written consent; (v) impersonates any person or entity, including any employee or representative of Muddy; (vi) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by this Agreement; or (vii) as otherwise defined in Section 1.6 (Certain Restrictions).

6. Investigations & enforcements

Muddy may, but is not obligated to, monitor or review the Services and Content at any time. Muddy reserves the right, in its sole discretion, to: (a) remove any of Your Content for any reason (or no reason), including if such Content violates the Agreement or any applicable law; (b) take any action with respect to any of your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for the Muddy; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services; and/or (e) terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of this Agreement.

Although Muddy does not generally monitor user activity occurring in connection with the Services or Content, if Muddy becomes aware of any possible violations by you of any provision of the Agreement, Muddy reserves the right to investigate such violations, and Muddy may, at its sole discretion, immediately terminate your license to use the Services, or change, alter or remove Your Content, in whole or in part, without prior notice to you. If, as a result of the investigation, Muddy believes that criminal activity has occurred, Muddy reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Muddy is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, including Your Content, in Muddy's possession in connection with your use of the Services, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Agreement, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Muddy, its Registered Users or the public, and all enforcement or other government officials, as Muddy in its sole discretion believes to be necessary or appropriate.

7. Interactions with other users

7.1 User responsibility

You are solely responsible for your interactions with other Registered Users and any other parties with whom you interact, whether or not they are a Registered User; provided, however, that Muddy reserves the right, but has no obligation, to intercede in such disputes. You agree that Muddy will not be responsible for any liability incurred as the result of such interactions. You agree that you are solely responsible for your conduct in connection with the Service. You agree that you will abide by this Agreement and will not (and will not attempt to): (a) use the Services to send messages containing harassment, violence, threats, hate speech, suicide or self-harm, bullying, abuse, spam, illegal activity, obscenity, pornography, defamation, libel, and/or fraud; or (b) upload content that promotes suicide or self-harm, incites hate or violence against others, degrades or doxes another individual, depicts minors in sexually suggestive situations, or is otherwise illegal in the United States.

7.2 Content provided by other users

The Services may contain User Content provided by other Registered Users. Muddy is not responsible for and does not control User Content. Muddy has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to, User Content. You use all User Content and interact with other Registered Users at your own risk.

8. Fees & purchase terms

8.1 General purpose of agreement: sale of service, not software

The purpose of the Agreement is for you to secure access to the Services. All fees set forth within and paid by you under the Agreement shall be considered solely in furtherance of this purpose. In no way are these fees paid considered payment for the sale, license, or use of Muddy's Software, and, furthermore, any use of Muddy's Software by you in furtherance of the Agreement will be considered merely in support of the purpose of the Agreement.

8.2 Payment

You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide Muddy with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account of a payment provider (“Payment Provider”), or purchase order information, as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities. By providing Muddy with your credit card number or PayPal account and associated payment information, you agree that Muddy is authorized to immediately invoice your Account for all fees and charges due and payable to Muddy hereunder and that no additional notice or consent is required. You agree to immediately notify Muddy of any change in your billing address or the credit card or PayPal account used for payment hereunder. Muddy reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Services or by e-mail delivery to you.

8.3 Service subscription fees

You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you create your Account and select your annual package (each, a “Service Commencement Date”). Except as set forth in the Agreement, all fees for the Services are non-refundable. No contract will exist between you and Muddy for the Services until Muddy accepts your order by a confirmatory e-mail or other appropriate means of communication.

8.4 Taxes

The payments required under Section 8.3 (Service Subscription Fees) of this Agreement do not include any Sales Tax that may be due in connection with the services provided under this Agreement. If Muddy determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, Muddy shall collect such Sales Tax in addition to the payments required under Section 8.3 (Service Subscription Fees) of this Agreement. If any services, or payments for any services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Muddy, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Muddy for any liability or expense Muddy may incur in connection with such Sales Taxes. Upon Muddy's request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.

8.5 Withholding taxes

You agree to make all payments of fees to Muddy free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Muddy will be your sole responsibility, and you will provide Muddy with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.

8.6 Automatic renewal

Your subscription will continue indefinitely until terminated in accordance with the Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for additional one (1) month terms. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least ten (10) days prior to the Renewal Commencement Date (or in the event that you receive a notice from Muddy that your subscription will be automatically renewed, you will have ten (10) days from the date of the Muddy notice), by logging into and going to the “Change/Cancel Membership” page of your “Account Settings” page. If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please contact Muddy at team@feelmuddy.com, a letter sent to 2309 Bryant Street San Francisco, CA 94110, text/call (415-707-7245), or log in and go to the “Change/Cancel Membership” page on your “Account Settings” page. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; 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. By subscribing, you authorize Muddy to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Muddy does not receive payment from your Payment Provider, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that Muddy may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).

8.7 Free trials and other promotions

Any free trial or other promotion that provides Registered User level access to the Services must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable subscription fee. If you are inadvertently charged for a subscription, please contact Muddy to have the charges reversed.

9. Indemnification

You agree to indemnify and hold Muddy, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Muddy Party” and collectively, the “Muddy Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any part of the Services; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Registered Users; or (e) your violation of any applicable laws, rules or regulations. Muddy reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Muddy in asserting any available defenses. This provision does not require you to indemnify any of the Muddy Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Services.

10. Disclaimer of warranties & conditions

10.1 As is

YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. MUDDY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE.

This Section 10 (Disclaimer of Warranties and Conditions) does not affect in any way our return policy or limited warranty for goods purchased on the Website.

1. MUDDY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.

1. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
2. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. MUDDY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
3. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MUDDY OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
4. FROM TIME TO TIME, MUDDY MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT MUDDY'S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.

10.2 No liability for conduct of third parties

YOU ACKNOWLEDGE AND AGREE THAT MUDDY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD MUDDY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.

10.3 No liability for conduct of other users

YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES. YOU UNDERSTAND THAT MUDDY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICES. MUDDY MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. MUDDY MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE SERVICES.

10.4 Third-party materials

As a part of the Services, you may have access to materials that are hosted by another party. You agree that it is impossible for Muddy to monitor such materials and that you access these materials at your own risk.

11. Limitation of liability

11.1 Disclaimer of certain damages

YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL MUDDY PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT MUDDY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE THE SERVICES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (e) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A MUDDY PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A MUDDY PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A MUDDY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.

11.2 Cap on liability

TO THE FULLEST EXTENT PROVIDED BY LAW, MUDDY PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO MUDDY BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (b) $100; OR (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A MUDDY PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A MUDDY PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A MUDDY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.

11.3 User content

EXCEPT FOR MUDDY'S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE MUDDY'S PRIVACY POLICY, MUDDY ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.

11.4 Exclusion of damages

CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

11.5 Basis of the bargain

THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MUDDY AND YOU.

11.6 Procedure for making claims of copyright infringement

It is Muddy's policy to terminate membership privileges of any Registered User who repeatedly infringes copyright upon prompt notification to Muddy by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Muddy Copyright Agent for notice of claims of copyright infringement is as follows: Muddy Compliance (Attn: Compliance Team), 2309 Bryant Street, San Francisco, CA 94110.

12. Term & termination

12.1 Term

The Agreement commences on the earlier date of (a) when you accepted them (as described in the preamble above) or (b) the date you first used the Services, and will remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Agreement.

12.2 Termination of services by Muddy

‍You will have fourteen (14) days from the Service Commencement Date, or any Renewal Commencement Date, for any Services hereunder, to cancel such Service, in which case Muddy will refund your Service Subscription Fee, if already paid pursuant to Section 8.2 (Payment) or 8.3 (Service Subscription Fees), for the applicable Service. Except as set forth above, the Service Subscription Fee for any Service shall be non-refundable. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Agreement, or if Muddy is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), Muddy has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Muddy sole discretion and that Muddy shall not be liable to you or any third party for any termination of your Account.

12.3 Termination of services by you

‍If you want to terminate the Services provided by Muddy, you may do so by (a) notifying Muddy at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Muddy's address set forth below. THE SERVICES WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 8.6 (AUTOMATIC RENEWAL).

12.4 Effect of termination

Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Muddy will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.

13. International users

‍The Services can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Muddy intends to announce such Services or Content in your country. The Services are controlled and offered by Muddy from its facilities in the United States of America. Muddy makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.

14. Arbitration agreement

14.1 Applicability of arbitration agreement

Subject to the terms of this Arbitration Agreement, you and Muddy agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Services or of the Website, any communications you receive, any products sold or distributed through the Website, the Services, or the Terms and prior versions of the Terms, including claims and disputes that arose between us before the effective date of these Terms (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and Muddy may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Muddy may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Terms as well as claims that may arise after the termination of these Terms.

14.2 Informal dispute resolution

There might be instances when a Dispute arises between you and Muddy. If that occurs, Muddy is committed to working with you to reach a reasonable resolution. You and Muddy agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Muddy therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.

The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Muddy that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to team@feelmuddy.com or regular mail to our offices located at 2309 Bryant Street San Francisco, CA 94110. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e-mail address of your counsel, if any; and (3) a description of your Dispute.

The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.

14.3 Waiver of jury trial

YOU AND MUDDY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Muddy are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

14.4 Waiver of class and other non-individualized relief

YOU AND MUDDY AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 14.9, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the Subsection 14.9 entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Muddy agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of California. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Muddy from participating in a class-wide settlement of claims.

14.5 Rules and forum

The Terms evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Muddy agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/ Consumer%20Rules.pdf. A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e-mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.

If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.

Unless you and Muddy otherwise agree, or the Batch Arbitration process discussed in Subsection 14.9 is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules.

You and Muddy agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.

14.6 Arbitrator

The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Subsection 14.9 is triggered, the AAA will appoint the arbitrator for each batch.

14.7 Authority of arbitrator

The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.

14.8 Attorneys’ fees and costs

The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Muddy need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.

14.9 Batch arbitration

To increase the efficiency of administration and resolution of arbitrations, you and Muddy agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Muddy by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).

All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Muddy.

You and Muddy agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.

This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.

14.10 30-Day right to opt out

You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: 2309 Bryant Street San Francisco, CA 94110, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Muddy account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

14.11 Invalidity, expiration

Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Muddy as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.

14.12 Modification

Notwithstanding any provision in these Terms to the contrary, we agree that if Muddy makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Muddy at 2309 Bryant Street San Francisco, CA 94110, your continued use of the Website and/or Services, including the acceptance of products and services offered on the Website following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of these Terms and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services or of the Website, any communications you receive, any products sold or distributed through the Website, the Services, or these Terms, the provisions of this Arbitration Agreement as of the date you first accepted the Terms (or accepted any subsequent changes to these Terms) remain in full force and effect. Muddy will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of these Terms.

15. Third-party services

15.1 Third-party service provider

‍The Muddy uses Stripe, Inc. and its affiliates as the third party service provider for payment services (e.g., card acceptance, merchant settlement, and related services) (a “Third Party Service Provider”). By buying any of the subscription plans and/or other Service offerings, you agree to be bound by Stripe’s Privacy Policy (currently accessible at https://stripe.com/us/privacy) and its Terms of Service (currently accessible at https://stripe.com/us/terms) and hereby consent and authorize the Muddy and Stripe to share any information and payment instructions you provide with one or more Third Party Service Provider(s) to the minimum extent required to complete your transactions.

15.2 Third-party websites and applications

The Services may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”). When you click on a link to a Third-Party Website or Third-Party Application, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites and Third-Party Applications are not under the control of Muddy. Muddy is not responsible for any Third-Party Websites or Third-Party Applications. Muddy provides these Third-Party Websites and Third-Party Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Applications, or any product or service provided in connection therewith. You use all links in Third-Party Websites and Third-Party Applications at your own risk. When you leave our Website, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.

15.3 Accessing and downloading the application from the Apple App Store

‍The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:

1. You acknowledge and agree that (i) the Agreement is concluded between you and Muddy only, and not Apple, and (ii) Muddy, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
2. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
3. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Muddy and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Muddy.
4. You and Muddy acknowledge that, as between Muddy and Apple, Apple is not responsible for addressing any claims you have or of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
5. You and Muddy acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Muddy and Apple, Muddy, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
6. You and Muddy acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
7. Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.

16. General provisions

16.1 Electronic communications

‍The communications between you and Muddy may take place via electronic means, whether you visit the Services or send Muddy e-mails, or whether Muddy posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Muddy in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Muddy provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).

16.2 Assignment

‍The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Muddy's prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

16.3 Force majeure

‍Muddy shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

16.4 Questions, complaints, claims

‍If you have any questions, complaints or claims with respect to the Services, please contact us at: team@feelmuddy.com, a letter sent to 2309 Bryant Street San Francisco, CA 94110, or text/call (415-707-7245). We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.

16.5 Exclusive venue

‍To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Muddy agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in San Francisco County, California.

16.6 Governing law

‍THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.

16.7 Choice of language

‍It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.

16.8 Notice

‍Where Muddy requires that you provide an e-mail address, you are responsible for providing Muddy with your most current e-mail address. In the event that the last e-mail address you provided to Muddy is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Muddy's dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Muddy at the following address: team@feelmuddy.com, or a letter sent to 2309 Bryant Street San Francisco, CA 94110. Such notice shall be deemed given when received by Muddy by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

16.9 Waiver

‍Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

16.10 Severability

‍If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.‍

16.11 Export control

You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Muddy are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Muddy products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

16.12 Release

‍If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “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.”  The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Muddy Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.

16.13 Consumer complaints

‍In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.

16.14 Entire agreement

‍The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

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If you have any questions or suggestions, reach us at team@feelmuddy.com.