PLEASE CAREFULLY READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THESE TERMS OF SERVICE (“TERMS”). These Terms create a binding legal agreement between you, as a Researcher, and MindSwarms Inc. d/b/a Fabric (“Fabric,” “we,” “our,” or “us”) and govern your use of the Fabric website (the “Site”), the Fabric app (the “App”), and the content and functionality provided via the Site and the App (such content and functionality, together with the Site and App, collectively, the “Services”). PLEASE CAREFULLY REVIEW THESE TERMS AND THE FABRIC PRIVACY POLICY (AVAILABLE AT [https://fabric.is/privacy-policy]) BEFORE USING THE SERVICES. BY USING THE SERVICES (INCLUDING BY VISITING THE SITE, DOWNLOADING THE APP OR MAKING ANY OTHER USE OF THE SERVICES), YOU BOTH ACCEPT AND AGREE TO BE BOUND BY THESE TERMS AND ACKNOWLEDGE THAT YOU HAVE REVIEWED THE FABRIC PRIVACY POLICY. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, OR THE PRIVACY POLICY, YOU MUST NOT ACCESS OR USE THE SERVICES. PLEASE NOTE THAT SECTION 10 OF THESE TERMS CONTAIN A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS FOR RESOLVING DISPUTES WITH FABRIC AND/OR PROVIDERS.
A. Age and Agreement
IF YOU ARE UNDER 18 YEARS OF AGE YOU MUST HAVE YOUR PARENT OR LEGAL GUARDIAN’S PERMISSION TO USE THE SERVICE, AS WELL AS HAVE YOUR PARENT OR LEGAL GUARDIAN READ AND AGREE TO THESE TERMS. YOU REPRESENT, ACKNOWLEDGE AND AGREE THAT YOU ARE AT LEAST 18 YEARS OF AGE OR THAT YOU ARE THE PARENT OR LEGAL GUARDIAN OF A USER THAT IS AT LEAST 13 YEARS OF AGE, AND YOU AGREE TO THESE TERMS. If you are using the Services on behalf of a company, organization, or other entity, you further affirm that you have authority to bind that organization to these Terms, and you agree to be bound by these Terms on behalf of that organization.
B. Registration and Account
To create Research Studies on the Services, you must register and create a Fabric account through the Services. When you create an account, you agree that:
C. Password and Security
You are responsible for taking reasonable steps to maintain the confidentiality of your username and password and for all activities that occur under your account. You agree to notify us immediately of any unauthorized use of your username, password, or other account information, or any other reasonably suspected breach of security that you become aware of involving your account or the Services. Fabric will not be liable to you for any loss you may incur as a result someone else using your username, password, or account with or without your knowledge. You may also be held liable for losses incurred by Fabric or others due to any unauthorized use of your username, password, or account. Fabric reserves the right to require you to change your password if we believe that your password is no longer secure.
If you are sure that the researcher has sent email invitations out but you cannot find yours in your spam folder, contact the researcher to let them know and make sure they have the correct email address. They may ask you for an alternate email address and try to send you a new invitation.
A. Ownership.
The Services are owned and operated by Fabric. You acknowledge and agree that, excluding content or materials that are provided, displayed, transmitted, or linked by Researchers through the Services to you for purposes of conducting Research Studies, e.g., study questions, (“Researcher Content”), Fabric and/or Fabric’s third-party service providers (“Providers”) own all right, title and interest in and to the Services and any material and information generated through the use of the Services, including: (a) all information, data, software, text, displays and visual interfaces, graphics, images, video, and audio, and all other elements of the Services, and the design, selection, and arrangement thereof; and (b) all intellectual property and other legal rights (including, but not limited to, any and all copyrights, patents, patent applications, trade secrets, trademarks and other intangible rights) therein. You may not publish, reproduce, distribute, display, perform, edit, adapt, modify, or otherwise exploit any part of the Services without Fabric’s written consent. You will not earn or acquire any ownership rights in any copyrights, patents, trade secrets, trademarks or other intellectual property rights on account of these Terms or any access to or use of the Services. You agree and understand that Fabric is not obligated to provide you with access to the Services. You agree that all content provided to you through the Services is owned by Fabric, Providers and/or other third parties, including Researchers, and that you will have no ownership rights in such content. For clarity, Fabric owns and retains all of its rights in Research Data.
B. License.
Subject to your compliance with these Terms, Fabric hereby grants you a limited, personal, nonexclusive, non-transferable, non-sublicensable and revocable license to access and use the Services on your personal device(s) solely to participate in Research Studies. By downloading or using the Services, you acknowledge that: (a) the Services are licensed, not sold to you; and (b) terms and fees, such as those from your mobile carrier, may apply to the use and operation of your device in connection with your use of the Services, and that you are solely responsible for any such third party terms and fees.
C. Use Restrictions.
You may not access or use, or attempt to access or use, the Services to take any action that could harm Fabric, its Providers, or any other third party, interfere with the operation of the Services, or use the Services in a manner that violates any laws, including, without limitation:
A. Restrictions.
You remain fully responsible for any materials and content that you have submitted via the Services, including any sample videos, study applications, responses to questions and other information you provide (whether through text, video or audio) for purposes of participating in Research Studies (your “Participant Content”). Notwithstanding any of the criteria, requirements, or requests of a Research Study you may be participating in, you agree not to provide Participant Content that:
B. License to Participant Content.
As between the parties, you continue to own any Participant Content that you submit through the Services, but by submitting Participant Content, you grant us a royalty-free, irrevocable, perpetual, non-exclusive, worldwide, fully sublicensable license to reproduce, reformat, distribute, publicly perform, publicly display, and otherwise use your Participant Content (or any portion thereof) in any way that we want and in any form, media, or technology now known or later developed. You hereby waive any moral rights you may have in your Participant Content. You further represent and warrant that you have obtained the consent of all individuals who are identifiable in your Participant Content, or of the individual’s parent or legal guardian if the individual is under 18 years old, to include the individual’s likeness in your Participant Content and for us to enjoy all of the rights and privileges that you grant to us under these Terms.
C. No Liability for Participant Content
You understand and agree that Fabric is not responsible and has no liability for any of your Participant Content. Fabric is not obligated to publish or use your Participant Content. Nonetheless, Fabric may monitor, review, edit, remove, delete, or disable access to your Participant Content at any time, without prior notice and in Fabric’s sole discretion, for any or no reason. Fabric reserves the right to take any action with respect to any Research Response that it deems necessary or appropriate in its sole discretion, including if Fabric believes that any Research Response violates these Terms or any applicable law, 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 Fabric.
Alternatively, you can complete your Fabric video survey on a camera and microphone-enabled laptop or desktop computer, within a web browser (we recommend Google Chrome). Follow the link in your email invitation on your web browser to start submitting video responses to the survey.
A. Dress Code. While participating in Research Studies we would like you to feel relaxed and at ease. However, when recording your responses, you are required to be fully dressed and not in any objectionable way that would be considered not socially or professionally responsible or appropriate in person.
B. Flagged Responses
You agree that any comments, suggestions or feedback you provide regarding your use of the Services (“Feedback”) will become the exclusive property of Fabric, regardless of the form or platform in which it is delivered. You further agree that Fabric and Providers may use all or part of your Feedback or any derivative thereof in any manner or media without any remuneration, compensation or credit to you, including to improve the Services and create other products and services. You hereby assign to Fabric all right, title and interest to your Feedback, including all copyrights therein.
A. PayPal Requirement.
To receive payment for completion of a Research Study, you must have a working PayPal account. Your PayPal email may differ from your contact email and can be updated on the “Your Account” page of the Site.
B. Payment Timing.
After you complete a Research Study, Fabric will pay you via PayPal the amount as specified in the Research Study and/or as agreed upon between Fabric and Researcher, provided that the Researcher does not flag your responses. Fabric will use commercially reasonable efforts to make payments within 24 business hours unless administrative or technical issues prevent us from meeting that deadline or for any other reasonable delay in payment. Please note that Fabric is unable to resend or reroute a payment to another account after it has been made. Fabric will not be held liable for any errors caused by PayPal’s payment processing. For the avoidance of doubt, Researchers are solely responsible for any compensation owed to you. As such, Fabric will have no obligation to distribute any payments to you until Fabric first receives the outstanding amount from Researchers. C. Taxes You are responsible for any and all taxes associated with any payments you receive from us. To comply with US tax law, Fabric may require you to provide IRS form W-9 before releasing payment.
A. Confidential Information.
“Confidential Information” means all information and materials concerning a Researcher’s or our business, plans, customers, technology and products that are marked as confidential or should be reasonably understood to be confidential, based on the nature of the information or the circumstances of its disclosure. All Research Studies and their related materials are Confidential Information. This includes, but is not limited to, the study title, study questions that you respond to, linked or embedded materials such as audio, images, video, or web pages provided as part of a study, and any concepts related to those materials.
B. Non Disclosure.
You may only use the Confidential Information for the express purpose for which it was disclosed to you. You agree to use at least reasonable care to protect the confidentiality of all Confidential Information and not to disclose it to anyone other than Researcher or Fabric. Except as expressly authorized by Fabric, you agree not to copy, print, store, forward, or otherwise collect any Confidential Information either for yourself or on behalf of another. Your confidentiality obligations shall survive the completion of the Research Study that you participate in.
The Services may contain links to third party content and integrations with third party platforms, like social media sites. Fabric does not control, endorse, sponsor, recommend, or otherwise accept responsibility for any loss or damage that may arise from your use of such third party content and integrations. These links and integrations are provided only as a convenience, and Fabric does not make any representations or warranties with respect to third party links and integrations. Use of any linked third party content and integrations is at your own risk and subject to the terms of use for such third party content.
A. Discontinuation of Services.
Fabric reserves the right to permanently or temporarily amend or discontinue the Services at any time, in our sole discretion, without notice to you. To the fullest extent permitted under applicable law, Fabric will not be liable for any change to or any discontinuation of the Services, provided that if Fabric ceases to operate the Services and terminates your access to the Services accordingly, you will be entitled to any outstanding payments due to you as a Participant.
B. Termination for Convenience.
You may close your account and discontinue your participation in and access to the Services at any time. Fabric may immediately terminate these Terms with you and suspend or terminate your access to the Services for any or no reason at any time without notice, including but not limited to, if you fail to comply with any provision of these Terms or any other applicable law. Upon termination of your access to the Services, or termination of this contract, Fabric may at our option delete any data associated with your account. These Terms will remain in full force and effect notwithstanding any termination of your use of the Services.
A. Disclaimer of Warranties.
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES (INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, AND NON-INFRINGEMENT). WE MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. WE MAKE NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. YOU ACKNOWLEDGE THAT ACCESS TO DATA (INCLUDING, BUT NOT LIMITED TO, DOCUMENTS, PHOTOGRAPHS, AND VIDEO FILES) STORED BY YOU OR OTHERS ON THE SERVICES IS NOT GUARANTEED AND THAT WE WILL NOT BE RESPONSIBLE TO YOU FOR ANY LOSS OF DATA CAUSED BY THE SERVICES OR ITS UNAVAILABILITY. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING THEREFROM. WE MAKE NO WARRANTY AS TO THE PERFORMANCE OF ANY THIRD PARTIES INCLUDING, WITHOUT LIMITATION PAYMENT PROCESSORS OR RESEARCHERS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. FABRIC DOES NOT REVIEW THE LEGITIMACY OF RESEARCHERS OR THE RESEARCH STUDIES PROVIDED BY RESEARCHERS. AS A RESULT, FABRIC HAS NO CONTROL OVER THE QUALITY, SAFETY OR LEGALITY OF RESEARCHER CONTENT, INCLUDING THE QUESTIONS ASKED IN THE RESEARCH STUDIES, OR IN THE SCREENING OF RESEARCHER CONTENT. FABRIC IS NOT RESPONSIBLE FOR THE ACTIONS OF ANY RESEARCHER.
B. Limitations of Liability.
YOU AGREE THAT TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL WE OR OUR OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, AGENTS, OR LICENSORS BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, GOODWILL, LOST PROFITS OR LOST DATA, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY REMEDY OF ITS ESSENTIAL PURPOSE) FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, RESULTING FROM YOUR USE OF THE SERVICES (OR ANY PERSON USING YOUR ACCOUNT) AND (B) AGGREGATE DAMAGES EXCEEDING THE AMOUNT PAID BY YOU TO FABRIC FOR THE SERVICES IN THE TWELVE MONTHS PRECEDING SUCH LOSSES. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
C. Exclusions and Limitations.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that the Fabric may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Fabric’s liability will be the minimum permitted under such applicable law.
D. Indemnification.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that the Fabric may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Fabric’s liability will be the minimum permitted under such applicable law.
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT AFFECTS YOUR RIGHTS. BY AGREEING TO BINDING ARBITRATION, YOU WAIVE YOUR RIGHT TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE YOUR CASE.
In order to expedite and control the cost of disputes, Fabric and you agree that any legal or equitable claim, dispute, action or proceeding arising from or related to your use of the Services or these Terms (“Dispute”) will be resolved by arbitration if the parties are unable to reach agreement through negotiation of the dispute. This applies to all Disputes, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, even if the Dispute arises after the termination of these Terms. Arbitration is a less formal proceeding than a lawsuit in a court, does not involve a judge or jury, and may allow for less discovery than in a court. An arbitration is conducted by a neutral arbitrator. An arbitrator can award the same types of relief that a court can, such as damages, but a decision from an arbitrator can be subject to very limited review by a court. YOU UNDERSTAND AND AGREE THAT YOU AND FABRIC ARE HEREBY WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO JOIN AND PARTICIPATE IN A CLASS ACTION, TO THE FULLEST EXTENT PERMITTED UNDER THE LAW.
A. Exceptions to Arbitration Agreement.
Despite this arbitration agreement, both you and Fabric will still be able to: (a) bring an individual action in small claims court; (b) bring an individual action seeking injunctive relief in a court of law; (c) bring suit regarding intellectual property infringement; and (d) bring issues to the attention of federal, state, or local agencies, which may result in legal action.
B. Opt-Out of Arbitration Agreement.
You have the right to opt out of this agreement to arbitrate by contacting [legal@fabric.is] within thirty (30) days of first accepting these Terms. In your request, please state that you decline the arbitration agreement in this Section, and provide your full name and the e-mail address you used to register for the Services. There is no penalty for opting out of this arbitration agreement.
C. Notice of Dispute.
In the event of a Dispute, you or Fabric must give the other a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the Dispute, and a proposed solution, including any relief sought (a “Notice of Dispute”). You must send any Notice of Dispute by certified U.S. Mail or Federal Express (signature required) to Fabric at 1501 Mariposa St, Suite 326, SF CA 94107, and also via e-mail to support@fabric.is. Fabric will send any Notice of Dispute to you by certified U.S. Mail or Federal Express (signature required) to your address if we have it, or otherwise to your e-mail address. You and Fabric will attempt to resolve any Dispute through informal negotiation within thirty (30) days from the date the Notice of Dispute is sent. After thirty (30) days, you or Fabric may commence arbitration.
D. Binding Arbitration and Governing Law.
To the fullest extent permitted under law, any arbitration between you and Fabric will be settled under the Federal Arbitration Act, and will administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules in effect at the time the Dispute is filed (the “AAA Rules”), as modified by these Terms. Information about AAA and the AAA Rules and filing process is available at http://www.adr.org/ or by contacting Fabric. YOU ARE GIVING UP THE RIGHT TO LITIGATE (OR PARTICIPATE IN AS A PARTY OR CLASS MEMBER) ALL DISPUTES IN COURT BEFORE A JUDGE OR JURY. INSTEAD, ALL DISPUTES WILL BE RESOLVED BEFORE A NEUTRAL ARBITRATOR, WHOSE DECISION WILL BE FINAL EXCEPT FOR A LIMITED RIGHT OF APPEAL UNDER THE FEDERAL ARBITRATION ACT.
E. Class Action Waiver.
TO THE FULLEST EXTENT OF THE LAW, YOU AND FABRIC AGREE THAT ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS, AND NEITHER YOU NOR FABRIC WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
F. Arbitration Procedures.
Any arbitration hearing will take place in San Francisco, California, in a location that you and Fabric agree upon. If your claim is for $10,000 or less, however, it is your choice whether the arbitration is conducted: (a) by an in-person hearing under the AAA Rules in the county (or parish) of your home address; (b) by a telephonic hearing, where the parties do not appear in person; or (c) by the submission of documents only, without an in-person or telephonic hearing. Regardless of how the arbitration is conducted, the arbitrator must issue a reasoned written description that explains the essential findings and conclusions on which the decision and any award are based. The arbitrator may award the same damages to you individually as a court could. The arbitrator may award declaratory or injunctive relief only to you individually, and only to the extent required to satisfy your individual claim. The parties must not disclose the amount of any settlement offer made by you or Fabric to the arbitrator during the arbitration, until the arbitrator has made a final decision and award, if any. If the arbitrator finds in your favor, Fabric will pay you the highest of: (a) the amount the arbitrator awards you, if any; (b) the last written settlement amount Fabric regarding the Dispute before the arbitrator’s final decision and award; or (c) $1,000.
G. Arbitration Fees.
Whoever files the arbitration pays the initial filing fee, unless your claim is for $10,000 or less, in which case Fabric will reimburse you for your payment of the initial filing fee. If your claim is for more than $10,000, the payment of any fees will be decided by the AAA Rules. At any time during the arbitration, the arbitrator may make rulings and resolve any disputes about the payment or reimbursement of fees or expenses; either party may also request a ruling on these issues within 14 days of the arbitrator’s ruling on the merits. If the arbitrator finds that the substance of your claim or your request for relief is frivolous or brought for an improper purpose (under the standard set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. If that happens, you agree to reimburse Fabric for any amounts previously disbursed that are otherwise your obligation to pay under the AAA Rules.
H. Filing Period.
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY DISPUTE UNDER THESE TERMS MUST BE FILED WITHIN ONE (1) YEAR IN AN ARBITRATION PROCEEDING. The one-year period begins when the events giving rise to the Dispute first occur. If a claim is not submitted within one year, it is permanently barred. This period can only be extended by the written consent of both parties. No statutes or provisions of law that would toll or otherwise affect the time in which a party may bring a claim shall operate to extend the period limited in this Section, and any such statutes and provisions are hereby waived, to the fullest extent permitted by law.
I. Modifications.
You have the right to reject any changes to this arbitration provision, except for a change to Fabric’s contact information. You may reject a change by sending us written notice within 30 days. This will result in your account on the Services being immediately terminated. Note that this arbitration provision, as it was prior to the rejected changes, will remain in effect.
J. Enforceability.
If the waiver of class actions above is found unenforceable, or this entire section is found unenforceable, then this entire section will be null and void. If that happens, you and Fabric agree that the section below on exclusive jurisdiction and governing law will govern any Dispute.
A. Entire Agreement; Researcher Content Terms.
These Terms, and any additional terms that Fabric expressly designates as binding on you, constitute the entire and exclusive agreement between the parties regarding the Services and supersedes any prior agreements. FOR THE AVOIDANCE OF DOUBT, ANY PURPORTED REPRESENTATIONS, WARRANTIES, COVENANTS, RIGHTS, OBLIGATIONS, OR ANY OTHER PURPORTED BINDING LEGAL TERMS EXPRESSED IN RESEARCHER CONTENT WILL NOT CONSTITUTE ANY PART OF THESE TERMS. TO THE EXTENT ANY SUCH TERMS ARE ENFORCEABLE, YOU AGREE THAT FABRIC WILL NOT BE CONSIDERED A PARTY TO THOSE TERMS AND THAT FABRIC WILL HAVE NO LIABILITY OR OBLIGATION ARISING FROM OR IN CONNECTION WITH THOSE TERMS.
B. Modifications; Waiver.
Fabric may change these Terms from time to time without prior notice. The most recent version of these Terms will be posted at [https://www.fabric.is/user_terms]. Your continued use of the Services following any such changes will indicate your agreement to such changes. Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
C. Governing Law.
These Terms shall be governed by, and construed and interpreted in accordance with, the laws of the State of California (without giving effect to conflict of law principles). To the extent a lawsuit or court proceeding is permitted under these Terms, you and Fabric agree that any dispute will be litigated in the state or federal courts located in San Francisco, California, and both of us submit to the personal and exclusive jurisdiction of those courts. By using the Services, you waive any claims that may arise under the laws of other states, countries, territories, or jurisdictions.
D. Assignment.
You may not assign or transfer any of your rights or obligations under these Terms, by operation of law or otherwise, without our prior written consent. Fabric may assign, subcontract, or delegate these Terms, in whole or in part, at any time, without notice. Subject to the foregoing, these Terms will be binding on each party’s permitted successors and assigns.
E. Severability.
If any provision of these Terms is found by an arbitrator or court of competent jurisdiction to be invalid, you nevertheless agree that the arbitrator or court should endeavor to give effect to your and our intentions as reflected in the provision, and that the other provisions of these Terms remain in full force and effect.
PLEASE CAREFULLY READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THESE TERMS OF SERVICE (“TERMS”). These Terms create a binding legal agreement between you, as a Researcher, and MindSwarms Inc. d/b/a Fabric (“Fabric,” “we,” “our,” or “us”) and govern your use of the Fabric website (the “Site”), the Fabric app (the “App”), and the content and functionality provided via the Site and the App (such content and functionality, together with the Site and App, collectively, the “Services”). PLEASE CAREFULLY REVIEW THESE TERMS AND THE FABRIC PRIVACY POLICY (AVAILABLE AT [https://www.fabric.is/privacy-policy]) BEFORE USING THE SERVICES. BY USING THE SERVICES (INCLUDING BY VISITING THE SITE, DOWNLOADING THE APP OR MAKING ANY OTHER USE OF THE SERVICES), YOU BOTH ACCEPT AND AGREE TO BE BOUND BY THESE TERMS AND ACKNOWLEDGE THAT YOU HAVE REVIEWED THE FABRIC PRIVACY POLICY. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, OR THE PRIVACY POLICY, YOU MUST NOT ACCESS OR USE THE SERVICES. PLEASE NOTE THAT SECTION 10 OF THESE TERMS CONTAIN A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS FOR RESOLVING DISPUTES WITH FABRIC AND/OR PROVIDERS.
A. Age and Agreement IF YOU ARE UNDER 18 YEARS OF AGE YOU MUST HAVE YOUR PARENT OR LEGAL GUARDIAN’S PERMISSION TO USE THE SERVICE, AS WELL AS HAVE YOUR PARENT OR LEGAL GUARDIAN READ AND AGREE TO THESE TERMS. YOU REPRESENT, ACKNOWLEDGE AND AGREE THAT YOU ARE AT LEAST 18 YEARS OF AGE OR THAT YOU ARE THE PARENT OR LEGAL GUARDIAN OF A USER THAT IS AT LEAST 13 YEARS OF AGE, AND YOU AGREE TO THESE TERMS. If you are using the Services on behalf of a company, organization, or other entity, you further affirm that you have authority to bind that organization to these Terms, and you agree to be bound by these Terms on behalf of that organization.
B. Registration and Account To create Research Studies on the Services, you must register and create a Fabric account through the Services. When you create an account, you agree that:
C. Password and Security You are responsible for taking reasonable steps to maintain the confidentiality of your username and password and for all activities that occur under your account. You agree to notify us immediately of any unauthorized use of your username, password, or other account information, or any other reasonably suspected breach of security that you become aware of involving your account or the Services. Fabric will not be liable to you for any loss you may incur as a result someone else using your username, password, or account with or without your knowledge. You may also be held liable for losses incurred by Fabric or others due to any unauthorized use of your username, password, or account. Fabric reserves the right to require you to change your password if we believe that your password is no longer secure.
A. Ownership.
The Services are owned and operated by Fabric. You acknowledge and agree that, excluding content or materials that you provide, display, transmit, or link through the Services to Participants for purposes of using the Services, e.g., any questions, descriptions, third-party links, etc. that you provide as part of a Research Study (“Researcher Content”), Fabric and/or Fabric’s third-party service providers (“Providers”) own all right, title and interest in and to the Services and any material and information generated through the use of the Services, including: (a) all information, data, software, text, displays and visual interfaces, graphics, images, video, and audio, and all other elements of the Services, and the design, selection, and arrangement thereof; and (b) all intellectual property and other legal rights (including, but not limited to, any and all copyrights, patents, patent applications, trade secrets, trademarks and other intangible rights) therein. You may not publish, reproduce, distribute, display, perform, edit, adapt, modify, or otherwise exploit any part of the Services without Fabric’s written consent. You will not earn or acquire any ownership rights in any copyrights, patents, trade secrets, trademarks or other intellectual property rights on account of these Terms or any access to or use of the Services. You agree and understand that Fabric is not obligated to provide you with access to the Services. You agree that all content provided to you through the Services is owned by Fabric, Providers and/or other third parties and that you will have no ownership rights in such content. For clarity, Fabric owns and retains all of its rights in Research Data.
B. License to Services.
Subject to your compliance with these Terms, Fabric hereby grants you a limited, personal, nonexclusive, non-transferable, non-sublicensable and revocable license to access and use the Services solely to conduct and administer Research Studies for yourself or on behalf of a client. By downloading or using the Services, you acknowledge that: (a) the Services are licensed, not sold to you; and (b) terms and fees, such as those from your mobile carrier, may apply to the use and operation of your device in connection with your use of the Services, and that you are solely responsible for any such third party terms and fees.
C. License to Research Data.
Subject to your compliance with these Terms and any other applicable legal or regulatory requirements, Fabric grants you a worldwide, non-exclusive, license under our right, title, and interest in both the Participant Content and the Research Data generated in connection with your Research Study to access, use, view, print, store, manipulate, analyze, and reformat solely for your or a client’s internal market research purposes. Such license shall be sublicensable to your affiliates and/or third parties solely to the extent necessary for them to provide services directly related to your or a client’s internal market research purposes. FOR THE AVOIDANCE OF DOUBT, OTHER THAN AS PERMITTED THROUGH THE INTENDED FUNCTIONALITY OF THE SERVICES, YOU ARE NOT GRANTED THE RIGHT TO USE THE PARTICIPANT CONTENT OR THE RESEARCH DATA TO CONTACT THE PARTICIPANT FOR ANY PURPOSE, OR TO PUBLISH OR TO PUBLICLY MAKE AVAILABLE THE PARTICIPANT CONTENT OR RESEARCH DATA.
D. Restrictions.
You may not access or use or attempt to access or use the Services to take any action that could harm Fabric, our Providers, or any other third party, interfere with the operation of the Services, or use the Services in a manner that violates any laws, including, without limitation:
A. Restrictions.
You represent, warrant, and covenant that you will not submit any Researcher Content or administer any Research Studies, which:
B. License to Researcher Content.
As between the parties, you continue to own any Researcher Content that you submit through the Services, but by submitting Researcher Content, you grant us a royalty-free, irrevocable, perpetual, non-exclusive, worldwide, fully sublicensable license to reproduce, reformat, distribute, publicly perform, publicly display, and otherwise use your Researcher Content (or any portion thereof) for purposes of (1) providing access and use of the Services under these Terms and (2) as necessary or useful for Fabric to enforce these Terms and exercise its rights under this Agreement. You further represent and warrant that you have obtained the consent of all individuals who are identifiable in your Researcher Content, or of the individual’s parent or legal guardian if the individual is under 18 years old, to include the individual’s likeness in your Researcher Content and for us to enjoy all of the rights and privileges that you grant to us under these Terms.
C. No Liability for Researcher Content
You understand and agree that Fabric is not responsible and has no liability for any of your Researcher Content. You will remain fully responsible for all of your Researcher Content. Nonetheless, Fabric may monitor, review, edit, remove, delete, or disable access to your Researcher Content at any time, without prior notice and in Fabric’s sole discretion, for any or no reason. Fabric reserves the right to take any action with respect to any Researcher Content that it deems necessary or appropriate in its sole discretion, including if Fabric believes that any Researcher Content violates these Terms or any applicable law, 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 Fabric. If you believe in good faith that removal of certain Researcher Content would amount to a complete denial, rather than a mere diminishment, of your ability to conduct certain Research Studies through the Services, your sole remedy is a pro-rated refund of any fees you have paid to use the Services for the affected Research Studies.
A. Technical Requirements.
You will need a high-speed Internet connection, speakers, a modern web browser, and the latest version Adobe Flash Player software to use the Services.
B. FABRIC DOES NOT SCREEN PARTICIPANTS OR THE INFORMATION PROVIDED BY PARTICIPANTS. AS A RESULT, WE HAVE NO CONTROL OVER AND ASSUME NO LIABILITY FOR THE QUALITY, SAFETY OR LEGALITY OF ANY OF THE INFORMATION PROVIDED, INCLUDING THE ANSWERS TO RESEARCH STUDY QUESTIONS.
C. No Additional Participant Terms.
All respondents in any Research Study are Participants, regardless of how they came to the Services, and must agree to Fabric’s Participant Terms of Service. While using the Services, you may not ask or attempt to ask Participants to agree to any terms in addition to the Participant Terms of Service without our prior written consent. Notwithstanding any purported acceptance, by any method or manner, of such terms by Participants, no additional terms will be legally binding on either Fabric or any Participants.
D. Disclosure of Information to Participants.
Fabric makes no guarantee that information disclosed by you to Participants though the Research Studies will be kept confidential by their Participants. As such, you acknowledge and agree that Fabric is not responsible for and assumes no liability for Participants’ disclosure of information disclosed to them during their participation in your Research Studies.
A. You agree that any comments, suggestions or feedback you provide regarding your use of the Services (“Feedback”) will become the exclusive property of Fabric, regardless of the form or platform in which it is delivered. You further agree that Fabric and Providers may use all or part of your Feedback or any derivative thereof in any manner or media without any remuneration, compensation or credit to you, including to improve the Services and create other products and services. You hereby assign to Fabric all right, title and interest to your Feedback, including all copyrights therein.
A. Fees.
You are responsible for paying any applicable fees listed on the Services at the time of purchase (“Service Fees”). All fees are non-refundable, to the fullest extent under the law. Service Fees may be recurring. If such Service Fees are specified to be recurring on the Services, you agree that Fabric may charge such Service Fees on a periodic basis to the payment method you specify at the time of your initial purchase (your “Payment Method”). By using a Payment Method to pay Service Fees, you are expressly agreeing that Fabric is authorized to charge to the Payment Method the Service Fees and any other fees for additional services you may purchase, together with any applicable taxes. If the Payment Method is a credit card, you acknowledge that we may seek pre-authorization of your credit card account prior to your purchase to verify that the card is valid and has the necessary funds or credit to complete the purchase. You acknowledge and agree that any fees for the Services may increase at any time. Additional fees may apply for new features or additions to the Service that may be made available from time to time, in which case Fabric will provide you with notice in advance of charging the additional fees. In the event Fabric charges additional fees in connection with the Services, you will have an opportunity to review and accept the additional fees that you will be charged, prior to being charged. If you do not accept any such additional fees, Fabric may discontinue your access to the Services. You acknowledge and agree that Fabric may use third party payment processors to process Service Fees on our behalf, and that Fabric will not be held liable for any errors caused by such third party payment processors.
B. Participant Compensation.
You will be solely responsible for any compensation you agree to provide to any Participant for any Research Study. Unless specified otherwise in writing, Fabric shall charge to your Payment Method the compensation to be paid to Participants. Subsequently, Fabric will pay the Participants on your behalf. If you agreed to pay Participants directly and fail to do so, and then Fabric compensates the Participants on your behalf, you agree to reimburse Fabric an amount equal to one hundred percent (100%) of the undisputed Participants’ compensation, plus a fifteen percent (15%) handling fee. At all times, you shall act in good faith and engage in fair dealing with Participants, including by paying Participants (or reimbursing Fabric for) any undisputed compensation on a timely basis.
A. You will be solely responsible for any compensation you agree to provide to any Participant for any Research Study. Unless specified otherwise in writing, Fabric shall charge to your Payment Method the compensation to be paid to Participants. Subsequently, Fabric will pay the Participants on your behalf. If you agreed to pay Participants directly and fail to do so, and then Fabric compensates the Participants on your behalf, you agree to reimburse Fabric an amount equal to one hundred percent (100%) of the undisputed Participants’ compensation, plus a fifteen percent (15%) handling fee. At all times, you shall act in good faith and engage in fair dealing with Participants, including by paying Participants (or reimbursing Fabric for) any undisputed compensation on a timely basis.
A. Discontinuation of Services.
Fabric reserves the right to permanently or temporarily amend or discontinue the Services at any time, in our sole discretion, without notice to you. To the fullest extent permitted under applicable law, Fabric will not be liable for any change to or any discontinuation of the Services, provided that if Fabric ceases to operate the Services and terminates your access to the Services accordingly, you will be entitled to a pro-rated refund of any prepaid fees that you have paid for use of the Service.
B. Termination for Convenience.
You may close your account and discontinue your participation in and access to the Services at any time. Fabric may immediately terminate these Terms with you and suspend or terminate your access to the Services for any or no reason at any time without notice, including but not limited to, if you fail to comply with any provision of these Terms or any other applicable law. Upon termination of your access to the Services, or termination of this contract, Fabric may at our option delete any data associated with your account. These Terms will remain in full force and effect notwithstanding any termination of your use of the Services.
A. Disclaimer of Warranties.
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES (INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, AND NON-INFRINGEMENT). WE MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. WE MAKE NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. YOU ACKNOWLEDGE THAT ACCESS TO DATA (INCLUDING, BUT NOT LIMITED TO, DOCUMENTS, PHOTOGRAPHS, AND VIDEO FILES) STORED BY YOU OR OTHERS ON THE SERVICES IS NOT GUARANTEED AND THAT WE WILL NOT BE RESPONSIBLE TO YOU FOR ANY LOSS OF DATA CAUSED BY THE SERVICES OR ITS UNAVAILABILITY. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING THEREFROM. WE MAKE NO WARRANTY AS TO THE PERFORMANCE OF ANY THIRD PARTIES INCLUDING, WITHOUT LIMITATION PAYMENT PROCESSORS OR THE PARTICIPANTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. WE DO NOT REVIEW THE LEGITIMACY OF PARTICIPANTS OR THE PARTICIPANT CONTENT PROVIDED BY PARTICIPANTS. AS A RESULT, WE HAVE NO CONTROL OVER THE QUALITY, SAFETY OR LEGALITY OF THE PARTICIPANT CONTENT, INCLUDING THE RESPONSES PROVIDED BY PARTICIPANTS, OR IN THE SCREENING OF PARTICIPANT CONTENT. WE ARE NOT RESPONSIBLE FOR THE ACTIONS OF ANY PARTICIPANTS.
B. Limitations of Liability.
YOU AGREE THAT TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL WE OR OUR OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, AGENTS, OR LICENSORS BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, GOODWILL, LOST PROFITS OR LOST DATA, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY REMEDY OF ITS ESSENTIAL PURPOSE) FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, RESULTING FROM YOUR USE OF THE SERVICES (OR ANY PERSON USING YOUR ACCOUNT) AND (B) AGGREGATE DAMAGES EXCEEDING THE AMOUNT PAID BY YOU TO FABRIC FOR THE SERVICES IN THE TWELVE MONTHS PRECEDING SUCH LOSSES. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
C. Exclusions and Limitations.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that the Fabric may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Fabric’s liability will be the minimum permitted under such applicable law.
D. Indemnification.
You agree to indemnify, defend, and hold us and our and our affiliates’ officers, directors, employees, consultants and agents harmless from and against any and all claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees) that such parties may incur as a result of or arising from your (or anyone using your account’s) breach of these Terms or your use of the Services.
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT AFFECTS YOUR RIGHTS. BY AGREEING TO BINDING ARBITRATION, YOU WAIVE YOUR RIGHT TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE YOUR CASE.
In order to expedite and control the cost of disputes, Fabric and you agree that any legal or equitable claim, dispute, action or proceeding arising from or related to your use of the Services or these Terms (“Dispute”) will be resolved by arbitration if the parties are unable to reach agreement through negotiation of the dispute. This applies to all Disputes, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, even if the Dispute arises after the termination of these Terms. Arbitration is a less formal proceeding than a lawsuit in a court, does not involve a judge or jury, and may allow for less discovery than in a court. An arbitration is conducted by a neutral arbitrator. An arbitrator can award the same types of relief that a court can, such as damages, but a decision from an arbitrator can be subject to very limited review by a court. YOU UNDERSTAND AND AGREE THAT YOU AND FABRIC ARE HEREBY WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO JOIN AND PARTICIPATE IN A CLASS ACTION, TO THE FULLEST EXTENT PERMITTED UNDER THE LAW.
A. Exceptions to Arbitration Agreement.
Despite this arbitration agreement, both you and Fabric will still be able to: (a) bring an individual action in small claims court; (b) bring an individual action seeking injunctive relief in a court of law; (c) bring suit regarding intellectual property infringement; and (d) bring issues to the attention of federal, state, or local agencies, which may result in legal action.
B. Opt-Out of Arbitration Agreement.
You have the right to opt out of this agreement to arbitrate by contacting [legal@fabric.is] within thirty (30) days of first accepting these Terms. In your request, please state that you decline the arbitration agreement in this Section, and provide your full name and the e-mail address you used to register for the Services. There is no penalty for opting out of this arbitration agreement.
C. Notice of Dispute.
In the event of a Dispute, you or Fabric must give the other a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the Dispute, and a proposed solution, including any relief sought (a “Notice of Dispute”). You must send any Notice of Dispute by certified U.S. Mail or Federal Express (signature required) to Fabric at 1501 Mariposa St, Suite 326, SF CA 94107, and also via e-mail to support@fabric.is. Fabric will send any Notice of Dispute to you by certified U.S. Mail or Federal Express (signature required) to your address if we have it, or otherwise to your e-mail address. You and Fabric will attempt to resolve any Dispute through informal negotiation within thirty (30) days from the date the Notice of Dispute is sent. After thirty (30) days, you or Fabric may commence arbitration.
D. Binding Arbitration and Governing Law.
To the fullest extent permitted under law, any arbitration between you and Fabric will be settled under the Federal Arbitration Act, and will administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules in effect at the time the Dispute is filed (the “AAA Rules”), as modified by these Terms. Information about AAA and the AAA Rules and filing process is available at http://www.adr.org/ or by contacting Fabric. YOU ARE GIVING UP THE RIGHT TO LITIGATE (OR PARTICIPATE IN AS A PARTY OR CLASS MEMBER) ALL DISPUTES IN COURT BEFORE A JUDGE OR JURY. INSTEAD, ALL DISPUTES WILL BE RESOLVED BEFORE A NEUTRAL ARBITRATOR, WHOSE DECISION WILL BE FINAL EXCEPT FOR A LIMITED RIGHT OF APPEAL UNDER THE FEDERAL ARBITRATION ACT.
E. Class Action Waiver.
TO THE FULLEST EXTENT OF THE LAW, YOU AND FABRIC AGREE THAT ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS, AND NEITHER YOU NOR FABRIC WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
F. Arbitration Procedures.
Any arbitration hearing will take place in San Francisco, California, in a location that you and Fabric agree upon. If your claim is for $10,000 or less, however, it is your choice whether the arbitration is conducted: (a) by an in-person hearing under the AAA Rules in the county (or parish) of your home address; (b) by a telephonic hearing, where the parties do not appear in person; or (c) by the submission of documents only, without an in-person or telephonic hearing. Regardless of how the arbitration is conducted, the arbitrator must issue a reasoned written description that explains the essential findings and conclusions on which the decision and any award are based. The arbitrator may award the same damages to you individually as a court could. The arbitrator may award declaratory or injunctive relief only to you individually, and only to the extent required to satisfy your individual claim. The parties must not disclose the amount of any settlement offer made by you or Fabric to the arbitrator during the arbitration, until the arbitrator has made a final decision and award, if any. If the arbitrator finds in your favor, Fabric will pay you the highest of: (a) the amount the arbitrator awards you, if any; (b) the last written settlement amount Fabric regarding the Dispute before the arbitrator’s final decision and award; or (c) $1,000.
G. Arbitration Fees.
Whoever files the arbitration pays the initial filing fee, unless your claim is for $10,000 or less, in which case Fabric will reimburse you for your payment of the initial filing fee. If your claim is for more than $10,000, the payment of any fees will be decided by the AAA Rules. At any time during the arbitration, the arbitrator may make rulings and resolve any disputes about the payment or reimbursement of fees or expenses; either party may also request a ruling on these issues within 14 days of the arbitrator’s ruling on the merits. If the arbitrator finds that the substance of your claim or your request for relief is frivolous or brought for an improper purpose (under the standard set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. If that happens, you agree to reimburse Fabric for any amounts previously disbursed that are otherwise your obligation to pay under the AAA Rules.
H. Filing Period.
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY DISPUTE UNDER THESE TERMS MUST BE FILED WITHIN ONE (1) YEAR IN AN ARBITRATION PROCEEDING. The one-year period begins when the events giving rise to the Dispute first occur. If a claim is not submitted within one year, it is permanently barred. This period can only be extended by the written consent of both parties. No statutes or provisions of law that would toll or otherwise affect the time in which a party may bring a claim shall operate to extend the period limited in this Section, and any such statutes and provisions are hereby waived, to the fullest extent permitted by law.
I. Modifications.
You have the right to reject any changes to this arbitration provision, except for a change to Fabric’s contact information. You may reject a change by sending us written notice within 30 days. This will result in your account on the Services being immediately terminated. Note that this arbitration provision, as it was prior to the rejected changes, will remain in effect.
J. Enforceability.
If the waiver of class actions above is found unenforceable, or this entire section is found unenforceable, then this entire section will be null and void. If that happens, you and Fabric agree that the section below on exclusive jurisdiction and governing law will govern any Dispute.
A. Entire Agreement; Modifications; Waiver.
These Terms, together with any additional terms to which you agree when using the Services, constitute the entire and exclusive agreement between the parties regarding the Services, and supersedes any prior agreements. We may change these Terms from time to time without prior notice. The most recent version of these Terms will be posted at [https://www.fabric.is/user_terms]. Your continued use of the Services following any such changes will indicate your agreement to such changes. Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
B. Governing Law.
These Terms shall be governed by, and construed and interpreted in accordance with, the laws of the State of California (without giving effect to conflict of law principles). To the extent a lawsuit or court proceeding is permitted under these Terms, you and Fabric agree that any dispute will be litigated in the state or federal courts located in San Francisco, California, and both of us submit to the personal and exclusive jurisdiction of those courts. By using the Services, you waive any claims that may arise under the laws of other states, countries, territories, or jurisdictions.
C. Assignment.
You may not assign or transfer any of your rights or obligations under these Terms, by operation of law or otherwise, without our prior written consent. We may assign, subcontract, or delegate these Terms or our rights or obligations under these Terms, in whole or in part, at any time, without notice. Subject to the foregoing, these Terms will be binding on each party’s permitted successors and assigns.
D. Severability.
If any provision of these Terms is found by an arbitrator or court of competent jurisdiction to be invalid, you nevertheless agree that the arbitrator or court should endeavor to give effect to the your and our intentions as reflected in the provision, and that the other provisions of these Terms remain in full force and effect.
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