Terms and Conditions
TERMS & CONDITIONS
SOMBRAS, LLC ("SOMBRAS")
Effective Date: January 2017
Last Updated Date: February 23, 2021
THESE TERMS INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE MOST DISPUTES.
THESE TERMS LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
PLEASE NOTE THAT The Terms are subject to change by SOMBRAS in its sole discretion at any time. When changes are made, SOMBRAS will make a new copy of the Terms available at the Website. We will also update the “Last Updated” date at the top of the Terms. If we make any material changes, and you have provided us with your e-mail address, we will also send an e-mail to you at the last e-mail address you provided to us. Any changes to the Terms will be effective immediately for new users of the Website and will be effective for existing users upon the earlier of thirty (30) days after posting of notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes. SOMBRAS may require you to provide consent to the updated Terms in a specified manner before further use of the Website is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website. Otherwise, your continued use of the Website constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
Use of SOMBRAS Properties. The Website and the content and information available on the Website (“SOMBRAS Properties”) are protected by copyright laws throughout the world. Subject to the Terms, SOMBRAS grants you a limited license to reproduce portions of SOMBRAS Properties for the sole purpose of using the Website for your personal purposes. Unless otherwise specified by SOMBRAS in a separate license, your right to use any SOMBRAS Properties is subject to the Terms.
- 1.1 Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit SOMBRAS Properties or any portion of SOMBRAS Properties; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other SOMBRAS Properties (including images, text, page layout or form) of SOMBRAS; (c) you shall not use any metatags or other “hidden text” using SOMBRAS’ 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 SOMBRAS Properties 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) you shall not access SOMBRAS Properties in order to build a similar or competitive website, application or service; and (g) except as expressly stated herein, no part of SOMBRAS Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update or other addition to SOMBRAS Properties shall be subject to the Terms. SOMBRAS, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of SOMBRAS Properties terminates the licenses granted by SOMBRAS pursuant to the Terms.
- 2.1 Registering Your Account. In order to access certain features of SOMBRAS Properties you will be required to become a Registered User. For purposes of the Terms, a “Registered User” is a user who creates an account with SOMBRAS (“Account”) by either registering directly with SOMBRAS through the Website or logging into the Website with the user’s social networking service account (“Third-Party Account”). By logging in with your Third-Party Account, you represent that you are entitled to disclose your Third-Party Account login information to SOMBRAS and/or grant SOMBRAS 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 SOMBRAS to pay any fees or making SOMBRAS subject to any usage limitations imposed by such third-party service providers. By granting SOMBRAS access to any Third-Party Accounts, you understand that SOMBRAS may access, make available and store (if applicable) any information, photographs, and/or other materials accessible through SOMBRAS Properties (“Content”) that you have provided to and stored in your Third-Party Account (“Third-Party Account Content”) so that it is available on and through SOMBRAS Properties via your Account. Unless otherwise specified in the Terms, all Third-Party Account Content shall be considered to be Your Content for all purposes of the Terms. Subject to the privacy settings that you have set in your Third-Party Account, personally identifiable information that you post to your Third-Party Account may be available on and through your Account on SOMBRAS Properties. Please note that if a Third-Party Account or associated service becomes unavailable or SOMBRAS' access to such Third-Party Account is terminated by the third-party service provider, then Account Content may no longer be available on and through SOMBRAS Properties. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDER ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNT IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDER, AND SOMBRAS DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDER IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNT. SOMBRAS makes no effort to review any Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and SOMBRAS is not responsible for any Third-Party Account Content.
- 2.2 Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are at least thirteen (13) years old (or such other minimum age of requirement as may be applicable in your jurisdiction) and not a person barred from using SOMBRAS Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to notify SOMBRAS immediately of any unauthorized use of your password or any other breach of security and exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or SOMBRAS has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, SOMBRAS has the right to suspend or terminate your Account and refuse any and all current or future use of SOMBRAS Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. You agree not to create an Account or use SOMBRAS Properties if you have been previously removed by SOMBRAS, or if you have been previously banned from any of SOMBRAS Properties.
- 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 SOMBRAS.
Order and Acceptance.
- 3.1 Order Acceptance Process. Each part of an order that you submit to SOMBRAS constitutes an offer to purchase merchandise. If you have placed your order through the Website, then, after SOMBRAS receives your order, you will receive an email from SOMBRAS confirming receipt of your order (usually in minutes). If you do not receive an email from SOMBRAS confirming receipt of an order that you placed, then please contact the SOMBRAS Customer Service department at http://www.sombr.as/pages/contact before you attempt to place another order for the same merchandise. Please note that SOMBRAS' confirmation of receipt of your order does not equate to SOMBRAS' acceptance of your order. SOMBRAS is not deemed to have accepted any part of your order until the requested merchandise has been shipped and SOMBRAS has sent a shipment confirmation email. Title and risk of loss pass to you upon SOMBRAS' transfer of the merchandise to the carrier.
3.2 Order Issues.
- (a) If SOMBRAS rejects your order due to an error in pricing and/or other information about the merchandise, then SOMBRAS will notify you at the email address that you have provided. Once the error has been corrected, SOMBRAS will ask you whether or not you would like to re-submit your order to purchase the relevant merchandise. If SOMBRAS has notified you that your order has been accepted by sending you a shipment confirmation email, then you will not be required to pay a price that is greater than the price that was displayed on the Website at the time at which you placed your order. If SOMBRAS has distributed merchandise that is different from the description of the relevant merchandise (as displayed on the Website at the time at which you placed your order), then you may request a return or an exchange. For additional details, please review the SOMBRAS Returns Policy available at http://www.sombr.as/pages/returns.
- (b) Although it is unlikely that SOMBRAS would refuse to accept an order, SOMBRAS reserves the right to deny any order for any reason, including where the following situations arise: (i) insufficient information or errors in billing, payment, and/or shipping information; (ii) orders that cannot be processed due to erroneous information that you have provided, which includes, but is not limited to incorrect credit card or debit card number, expiration date, security value, or other incorrect information regarding payment types; (iii) suspected fraudulent information; or (iv) delayed shipment or unavailability of merchandise.
- (c) SOMBRAS may refuse to accept any order if fraudulent activity is suspected. SOMBRAS may refuse to process any subsequent order from a customer who has a history of placing fraudulent orders.
- (d) SOMBRAS may refuse any order that is connected with a previous credit card dispute.
- 3.3 Order Cancellation. If an item of merchandise is delayed out of the SOMBRAS fulfillment center or becomes unavailable, or if there is an error on the Website pertaining to the order (e.g. an error pertaining to the price and/or description of merchandise), then SOMBRAS may cancel the order. If this occurs, then SOMBRAS will contact you so that you are aware of the situation.
- 3.4 Restrictions on Resale. In order to protect SOMBRAS' intellectual property rights, any suspected resale of merchandise for personal and/or business profit is strictly prohibited. SOMBRAS will not accept any order that is deemed to possess characteristics of reselling. SOMBRAS reserves the right to cancel any subsequent order from a customer who has been suspected of reselling.
- 4.1 Payment. All prices are quoted in the denomination stated. To make a purchase, you must provide a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”). Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not the Terms to determine your rights and liabilities. By providing SOMBRAS with your credit card number and associated payment information, you hereby authorize SOMBRAS to immediately charge your credit card for all fees and charges due and payable to SOMBRAS hereunder or credit your credit card for any refunds owed and that no additional notice or consent is required. You agree to immediately notify SOMBRAS of any change in your billing address or the credit card used for payment hereunder. SOMBRAS reserves the right at any time to change its prices and billing methods, either immediately upon posting on the SOMBRAS Properties or by e-mail delivery to you.
- 4.2 Refunds. Payments made to SOMBRAS are subject to refund in accordance with SOMBRAS' refund policy available at http://www.sombr.as/pages/returns.
- 4.3 Taxes. SOMBRAS' fees are net of any applicable Sales Tax. If any products or Services, or payments for any products or Services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to SOMBRAS, 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 SOMBRAS for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us 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” will mean any sales or use tax, and any other tax measured by sales proceeds, that SOMBRAS is permitted to pass to its customers that is) the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
- 4.4 Discounts and Promo Codes. We may, in our sole discretion, create discounts and promotional codes that may be redeemed for credit in your Account, or other features or benefits, subject to any additional terms that we establish on a per promotional code basis (“Promo Codes”). Promo Codes may only be used once per person. Only Promo Codes sent to you through official SOMBRAS communications channels are valid. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by us; (iii) may be disabled by us at any time for any reason without liability to us; (iv) may only be used pursuant to the specific terms that we establish for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use.
- 4.5 Disputes. You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: 6 Locksley Ave., 5D, San Francisco, CA 94122.
Responsibility for Content.
- 6.1 Types of Content. You acknowledge that all Content, including SOMBRAS Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not SOMBRAS, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through SOMBRAS Properties (“Your Content”), and that you and other Users of SOMBRAS Properties, and not SOMBRAS, are similarly responsible for all Content they Make Available through SOMBRAS Properties (“User Content”).
- 6.2 No Obligation to Pre-Screen Content. You acknowledge that SOMBRAS has no obligation to pre-screen Content (including, but not limited to, User Content), although SOMBRAS reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, 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 SOMBRAS pre-screens, refuses or removes any Content, you acknowledge that SOMBRAS will do so for SOMBRAS' benefit, not yours. Without limiting the foregoing, SOMBRAS shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
- 7.1 SOMBRAS Properties. You agree that SOMBRAS and its licensors and suppliers own all rights, title and interest in SOMBRAS Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying SOMBRAS Properties.
- 7.2 Trademarks. SOMBRAS' stylized name and other related graphics, logos, service marks and trade names used on or in connection with SOMBRAS Properties are the trademarks of SOMBRAS and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in SOMBRAS Properties are the property of their respective owners.
- 7.3 Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in SOMBRAS Properties.
- 7.4 Your Content. SOMBRAS does not claim ownership of Your Content. However, when you as a user post or publish Your Content on or in SOMBRAS Properties, 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.
- 7.5 License to Your Content. Subject to any applicable account settings that you select, you grant SOMBRAS 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 SOMBRAS Properties to you and to our other users. Please remember that other users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of SOMBRAS Properties. 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 SOMBRAS, are responsible for all of Your Content that you Make Available on or in SOMBRAS Properties.
- Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to SOMBRAS (“Feedback”) is at your own risk and that SOMBRAS 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 SOMBRAS 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 SOMBRAS Properties.
- User Conduct. As a condition of use, you agree not to use SOMBRAS Properties for any purpose that is prohibited by the Terms or by applicable law. You shall not (and shall not permit any third-party) either (a) to take any action or (b) Make Available any Content on or through SOMBRAS Properties 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 without SOMBRAS' prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of SOMBRAS; (vi) interferes with or attempts to interfere with the proper functioning of SOMBRAS Properties or uses SOMBRAS Properties in any way not expressly permitted by the Terms; or (vii) to attempt or engage in, any potentially harmful acts that are directed against SOMBRAS Properties, including but not limited to violating or attempting to violate any security features of SOMBRAS Properties, introducing viruses, worms, or similar harmful code into SOMBRAS Properties, or interfering or attempting to interfere with use of SOMBRAS Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” SOMBRAS Properties.
Interactions with Other Users.
- 10.1 User Responsibility. You are solely responsible for your interactions with other users of the Services and any other parties with whom you interact through the Services; provided, however, that SOMBRAS reserves the right, but has no obligation, to intercede in such disputes. You agree that SOMBRAS will not be responsible for any liability incurred as the result of such interactions.
- 10.2 Content Provided by Other Users. SOMBRAS Properties may contain User Content provided by other users. SOMBRAS is not responsible for and does not control User Content. SOMBRAS 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 users at your own risk.
- Third-Party Websites. SOMBRAS Properties may contain links to third-party websites ( “Third-Party Websites”). When you click on a link to a third-party website, we will not warn you that you have left SOMBRAS Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites are not under the control of SOMBRAS. SOMBRAS is not responsible for any Third-Party Websites. SOMBRAS provides these Third-Party Websites only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, or their products or services. You use all links in Third-Party Websites at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any third-party websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third-party.
- Investigations. SOMBRAS may, but is not obligated to, monitor or review the Website at any time. Without limiting the foregoing, SOMBRAS shall have the right, in its sole discretion, to remove any content for any reason (or no reason), including if such content violates the Terms or any applicable law. Although SOMBRAS does not generally monitor user activity, if SOMBRAS becomes aware of any possible violations by a user of any provision of the Terms, SOMBRAS reserves the right to investigate such violations, and SOMBRAS may, at its sole discretion, immediately terminate the user’s license to use the SOMBRAS Properties, or change, alter or remove any content, in whole or in part, without prior notice.
- Indemnification. You agree to indemnify and hold the SOMBRAS Parties harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your use of, or inability to use, SOMBRAS Properties; (b) your violation of the Terms; (c) your violation of any rights of another party; or (d) your violation of any applicable laws, rules or regulations. SOMBRAS 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 SOMBRAS in asserting any available defenses. You agree that the provisions in this section will survive any termination of the Terms or your access to SOMBRAS Properties.
- Disclaimer of Warranties. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF SOMBRAS PROPERTIES IS AT YOUR SOLE RISK, AND SOMBRAS PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. SOMBRAS 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, TITLE, AND NON-INFRINGEMENT. SOMBRAS PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) SOMBRAS PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF SOMBRAS PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) ANY ERRORS IN SOMBRAS PROPERTIES WILL BE CORRECTED. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL ANY SOMBRAS PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH SOMBRAS PROPERTIES OR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT SOMBRAS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE SOMBRAS PROPERTIES OR (2) ANY OTHER MATTER RELATED TO SOMBRAS PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR AGGREGATE CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO SOMBRAS PROPERTIES SHALL IN NO EVENT EXCEED THE GREATER OF (A) THE AMOUNT RECEIVED BY SOMBRAS AS A RESULT OF YOUR USE OF SOMBRAS PROPERTIES OR (B) ONE HUNDRED DOLLARS ($100). YOU AND SOMBRAS AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, SOMBRAS PROPERTIES OR ANY CONTENT POSTED ON SOMBRAS PROPERTIES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SOMBRAS AND YOU. THE LAWS OF SOME STATES DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU AND YOU MIGHT HAVE OTHER RIGHTS.
- Procedure for Making Claims of Copyright Infringement. If you believe that your work has been copied and posted on the SOMBRAS Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on Company Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) 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 (6) 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 SOMBRAS' Copyright Agent for notice of claims of copyright infringement is as follows: 6 Locksley Ave., 5D, San Francisco, CA 94122.
Term and Termination.
- 18.1 Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use SOMBRAS Properties, unless terminated earlier in accordance with the Terms.
- 18.2 Termination. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Terms, if we are required to do so by law (e.g., where the provision of any of SOMBRAS Properties is, or becomes, unlawful), or if we choose to discontinue SOMBRAS Properties (in part or in whole), we have the right to, immediately and without notice, suspend or terminate any SOMBRAS Properties provided to you. If we become aware of any possible violations by you of the Terms, we reserve the right to investigate such violations. In the event that we determine, in our sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated inappropriate conduct, we reserve the right to (i) warn you via e-mail (to any e-mail address you have provided to us) that you have violated the Terms; (ii) notify and/or send any content you have provided to us to and/or fully cooperate with the proper law enforcement authorities for further action; and/or (iii) pursue any other action which we deem to be appropriate. If, as a result of the investigation, we believe that illegal activity has occurred, we reserve the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. We are entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in SOMBRAS Properties in our possession in connection with your use of SOMBRAS Properties, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Terms; (iii) respond to your requests for customer service; or (iv) protect the rights, property or personal safety of SOMBRAS, its users or the public, and to comply with the requests of all law enforcement or other government officials, as we in our sole discretion believe to be necessary or appropriate. We reserve the right, in our sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you. You agree that all terminations shall be made in our sole discretion and that we shall not be liable to you or any third-party for enforcing this provision. If you want to terminate the Services provided by SOMBRAS, you may do so by (a) notifying SOMBRAS at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to 6 Locksley Ave., 5D, San Francisco, CA 94122. 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. SOMBRAS will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
- International Users. This Website can be accessed from countries around the world and may contain references to SOMBRAS Properties and other content that are not available in your country. These references do not imply that SOMBRAS intends to introduce such SOMBRAS Properties or content in your country. SOMBRAS Properties are controlled and offered by SOMBRAS from its facilities in the United States of America. SOMBRAS makes no representations that SOMBRAS Properties are appropriate or available for use in other locations. Those who access or use SOMBRAS Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.
20.1 Dispute Resolution. Please read this Arbitration Agreement carefully. It is part of your contract with SOMBRAS and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
- (a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by SOMBRAS that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and SOMBRAS, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
- (b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to SOMBRAS should be sent to: 6 Locksley Ave., 5D, San Francisco, CA 94122. After the Notice is received, you and SOMBRAS may attempt to resolve the claim or dispute informally. If you and SOMBRAS do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
- (c) Arbitration Rules. Arbitration shall be initiated through JAMS, an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If JAMS is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearing. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that SOMBRAS made to you prior to the initiation of arbitration, SOMBRAS will pay you the greater of the award or $2,500. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
- (d) Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
- (e) Time Limits. If you or SOMBRAS pursues arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the JAMS rules for the pertinent claim.
- (f) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and SOMBRAS, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the JAMS rules, and the Terms. 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 arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and SOMBRAS.
- (g) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court.
- (h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
- (i) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
- (j) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
- (k) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
- (l) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with SOMBRAS.
- (m) Small Claims Court. Notwithstanding the foregoing, either you or SOMBRAS may bring an individual action in small claims court.
- (n) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
- (o) Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
- (p) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within New York County, New York, for such purpose.
- 20.1 Dispute Resolution. Please read this Arbitration Agreement carefully. It is part of your contract with SOMBRAS and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
- 21.1 Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of New York, 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 these Terms.
- 21.2 Electronic Communications. The communications between you and SOMBRAS use electronic means, whether you visit SOMBRAS Properties or send SOMBRAS e-mails, or whether SOMBRAS posts notices on SOMBRAS Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from SOMBRAS in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that SOMBRAS 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.
- 21.3 Release. You hereby release SOMBRAS Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from third-party websites or your use of SOMBRAS Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor.”
- 21.4 Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without SOMBRAS' prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
- 21.5 Force Majeure. SOMBRAS 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.
- 21.6 Compliance. If you believe that SOMBRAS has not adhered to the Terms, please contact SOMBRAS by emailing us at firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
- 21.7 Notice. Where SOMBRAS requires that you provide an e-mail address, you are responsible for providing SOMBRAS with your most current e-mail address. In the event that the last e-mail address you provided to SOMBRAS is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, SOMBRAS' dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to SOMBRAS at the following address: SOMBRAS, LLC, 6 Locksley Ave., 5D, San Francisco, CA 94122. Such notice shall be deemed given when received by SOMBRAS by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
- 21.8 Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- 21.9 Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- 21.10 Export Control. You may not use, export, import, or transfer SOMBRAS Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained SOMBRAS Properties, and any other applicable laws. In particular, but without limitation, SOMBRAS Properties 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 SOMBRAS Properties, 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 SOMBRAS Properties 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 SOMBRAS 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 any products, services or technology provided by SOMBRAS, either directly or indirectly, to any country in violation of such laws and regulations.
- 21.11 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 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
- 21.12 Entire Agreement. The Terms are 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.
End of Terms