THESE TERMS OF SERVICE (THE “TERMS”) ARE A LEGAL CONTRACT BETWEEN YOU AND CO2 AND ITS AFFILIATES AND SUBSIDIARIES (COLLECTIVELY REFERRED TO AS “CO2”). THE TERMS EXPLAIN HOW YOU ARE PERMITTED TO ACCESS AND USE THE CO2 WEBSITE AT https://www.co2.com (THE “CO2 WEBSITE”) AND THE SERVICES CO2 PROVIDES THROUGH THE CO2 WEBSITE AND THE APP (THE “SERVICES”).
BY USING THE CO2 WEBSITE OR THE SERVICES, YOU ARE AGREEING TO ALL THE TERMS; IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE CO2 WEBSITE, ANY SERVICES AVAILABLE THROUGH THE CO2 WEBSITE OR ANY INFORMATION CONTAINED ON THE CO2 WEBSITE.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH CO2. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
CO2 may make changes to the content and Services offered on the CO2 Website at any time. CO2 can change, update, or add or remove provisions of these Terms, at any time by posting the updated Terms on the CO2 Website. By using the CO2 Website after CO2 has updated the Terms, you are agreeing to all the updated Terms; if you do not agree with any of the updated Terms, you must stop using the CO2 Website.
2. General Use
The CO2 Website provides a climate-action platform through which you as the user can elect to receive delivery of a certificate, which represents the dollar value of climate benefit of the user (“CO2 Planet Certificate”).
By using the CO2 Website, you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old (a “Minor”), that you are using the CO2 Website with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to use the CO2 Website and agree to its Terms. If you are a parent or legal guardian of a Minor, you hereby agree to bind the Minor to these Terms and to fully indemnify and hold harmless CO2 if the Minor breaches any of these Terms. If you are not at least 13 years old, you may not use the CO2 Website at any time or in any manner or submit any information to CO2 or the CO2 Website.
CO2 provides content, work product, report, or other materials through the CO2 Website and through the Services that is copyrighted and/or trademarked work of CO2 or CO2’s third-party licensors and suppliers or other users of the CO2 Website (collectively, the “Materials”). Materials may include logos, graphics, video, images, software and other content.
Subject to the terms and conditions of these Terms, and your compliance with these Terms, CO2 hereby grants you a limited, non-exclusive and non-transferable license to use and to display the Materials and to use the CO2 Website solely for your own use. Except for the foregoing license, you have no other rights in the CO2 Website or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the CO2 Website or Materials in any manner.
If you breach any of these Terms, the above license will terminate automatically and you must immediately destroy any downloaded or printed Materials.
3. Using the CO2 Website and the Services on the CO2 Website
You may measure or estimate your current carbon footprint by providing requested Submissions (as defined in Section 10.0) (such as electronics usage) through the CO2 Website. Based on your Submissions, the CO2 Website will provide you with Materials consisting of reports that includes your estimated carbon emissions and carbon footprint. The provided Materials are intended only to be reasonable estimate.
You may calculate the value of the CO2 Planet Certificate by using one of the carbon emission reduction plans described on the CO2 Website. You understand that you will be required to execute a CO2 Planet Certificate Purchase and Sale Agreement to receive the CO2 Planet Certificate. You will receive the delivery of the CO2 Planet Certificate on your Account (defined herein), calculated based on the amount of value input for desired climate benefit. The CO2 Planet Certificate is not refundable, exchangeable or transferrable to a third party.
As part of the Services, CO2 merely provides the CO2 Website to allow users to obtain the CO2 Planet Certificate. The existence of the CO2 Website or the Services is not a solicitation of donations by CO2, and CO2 does not engage in any solicitation activities, or consult on the solicitation of contributions from the public, on behalf of any individual, entity, or organization. By using the CO2 Website or the Services, you understand and agree that CO2 shall not be responsible for the use of the payments made by you for the CO2 Planet Certificate. For purposes of clarity, CO2 Website or the Services are entirely separate and distinct from and independent of any and all other services provided by CO2 in connection with CO2 magazine subscriptions.
You may sign up for subscription (monthly or annual) to use certain Services (in connection with measuring and/or reducing carbon footprints) and Materials offered on and through the CO2 Website (a “Subscription”). Each Subscription and the rights and privileges provided through the Subscription are non-assignable and non-transferable.
All Subscription fees can be in GBP, EUR, USD, and CAD. All Subscription fees are non-refundable under any circumstances.
The fee that CO2 will charge you for your Subscription will be the price posted on the CO2 Website on the date that you sign up for the Subscription. CO2 reserves the right to change prices for Subscriptions at any time, and does not provide price protection or refunds in the event of promotions or price decreases.
You may pay for your Subscription fee with credit and debit card payments (Visa, MasterCard, American Express, and Discover) or through PayPal (each a “Payment Method”). CO2 will charge your Payment Method for your first Subscription fee on the date that CO2 processes your order for your Subscription. Once your Payment Method is charged the first Subscription fee, you will receive a confirmation e-mail notifying you of your ability to access those Subscription-only portions of, and Materials on, the CO2 Website.
By providing a Payment Method, you expressly authorizes CO2 and/or CO2’s third party payment processor such as Stripe (“Payment Processor”) to charge the applicable fees on said Payment Method. You acknowledge and agree that CO2 exchanges information with Payment Processors in order to facilitate provision of the Services.
IMPORTANT NOTICE: CO2 WILL AUTOMATICALLY RENEW YOUR SUBSCRIPTION AT THE END OF EACH SUBSCRIPTION PERIOD AND, AS AUTHORIZED BY YOU DURING THE SUBSCRIPTION SIGN-UP PROCESS, CO2 WILL CHARGE YOUR PAYMENT METHOD WITH THE APPLICABLE SUBSCRIPTION FEE (UNLESS YOU CANCEL PRIOR TO THE END OF THE SUBSCRIPTION PERIOD). YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY CO2 THROUGH THE CO2 WEBSITE PROVIDED THAT ANY SUBSCRIPTION FEES CHARGED PRIOR TO THE EFFECTIVE DATE OF CANCELLATION WILL NOT BE REFUNDED, IN WHOLE OR IN PART. YOU WILL NOT BE ELIGIBLE FOR A PRO-RATED REFUND OF ANY PORTION OF THE SUBSCRIPTION FEES PAID FOR ANY UNUSED DAYS OF THE THEN-CURRENT SUBSCRIPTION PERIOD. IF YOU CANCEL YOUR SUBSCRIPTION, YOU WILL ENJOY YOUR SUBSCRIPTION BENEFITS UNTIL THE EXPIRATION OF THE THEN-CURRENT SUBSCRIPTION PERIOD FOR WHICH YOU HAVE PAID, AND YOUR SUBSCRIPTION BENEFITS WILL EXPIRE AT THE END OF THE THEN-CURRENT SUBSCRIPTION PERIOD.
CANCELLATION TERMS: YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY CO2 BY GOING TO THE CO2 WEBSITE, EXCEPT THAT YOU WILL BE CHARGED SUBSCRIPTION FEES UNTIL THE EXPIRATION OF YOUR THEN-CURRENT SUBSCRIPTION PERIOD AND SUBSCRIPTION FEES WILL NOT BE REFUNDED, IN WHOLE OR IN PART, SUBJECT TO APPLICABLE LAW. YOU WILL NOT BE ELIGIBLE FOR A PRO-RATED REFUND OF ANY PORTION OF THE SUBSCRIPTION FEES PAID FOR ANY UNUSED DAYS OF THE THEN-CURRENT SUBSCRIPTION PERIOD. CO2 MAY REQUIRE A REASONABLE AMOUNT OF CO2 TO PROCESS YOUR SUBSCRIPTION CANCELLATION REQUEST. IF YOU CANCEL YOUR SUBSCRIPTION, YOU WILL USE YOUR SUBSCRIPTION SERVICES UNTIL THE EXPIRATION OF THE THEN-CURRENT SUBSCRIPTION PERIOD FOR WHICH YOU HAVE PAID, AND YOUR SUBSCRIPTION SERVICES WILL EXPIRE AT THE END OF THE THEN-CURRENT SUBSCRIPTION PERIOD. YOU MAY CANCEL YOUR CO2 PLANET CERTIFICATE PURCHASE IN ACCORDANCE WITH THE C02 PLANET CERTIFICATE PURCHASE AND SALE AGREEMENT.
You will be liable for paying any and all applicable sales and use taxes for the purchase of your Subscription based on the mailing address that you provide when you sign up for the Subscription, and you authorize CO2 to charge your Payment Method for any such applicable taxes. You will be liable for paying any and all applicable taxes for the purchase of the CO2 Planet Certificate in accordance with the CO2 Planet Certificate Purchase and Sale Agreement.
CO2 reserves the right to modify fees at any time (but not the price in effect for your then-current Subscription period), upon advance notice to you. If you have not cancelled your Subscription or turned off the auto-renew function within the specified time after receiving notice of a price change, your Subscription will auto-renew at the price indicated in your notice.
In order to use the Services and Materials offered on and through the CO2 Website, you must register for an account (“Account”) and receive a password, which will require you to submit certain information such as your name and email address through the account registration page on the CO2 Website. Once you have submitted your Account registration information, the CO2 Website administrator shall have the right to approve or reject the requested registration, in the administrator’s sole discretion. If your account is approved by the administrator, you will be sent an e-mail that contains a password that will allow you to log-on to the CO2 Website using that password for the first time you log into your account on the CO2 Website (“Account”) to complete the account registration process.
You are responsible for maintaining the confidentiality of your Account password, and you are responsible for all activities that occur using your passwords. You agree not to share your passwords, let others access or use your passwords or do anything else that might jeopardize the security of your passwords. You agree to notify CO2 if any of your passwords on the CO2 Website is lost, stolen, if you are aware of any unauthorized use of your passwords on the CO2 Website or if you know of any other breach of security in relation to the CO2 Website.
All the information that you provide when registering for an Account and otherwise through the CO2 Website must be accurate, complete and up to date. You may change, correct or remove any information from your Account by either logging into your Account directly and making the desired changes or contacting CO2 using the contact information set forth these Terms requesting that CO2 makes the change. For purposes of clarity, except for the CO2 Website and the Services hereunder, you will not have access to or use of, through your Account, any other website, platform or services offered by CO2 including but not limited to any website, platform, or services in connection with CO2 magazine.
6. Electronic Communications
By using the CO2 Website and/or the Services provided on or through the CO2 Website, you consent to receiving electronic communications from CO2. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the CO2 Website and/or the Services provided on or through the CO2 Website. These electronic communications are part of your relationship with CO2. You agree that any notices, agreements, disclosures or other communications that CO2 sends you electronically will satisfy any legal communication requirements, including that such communications be in writing.
8. Links to Third-Party Sites
You are responsible for the information, data, opinions, messages, comments, photos, videos, graphics, sounds and other content or material that you submit, upload, post or otherwise make available on or through the CO2 Website (each a “Submission”) and through the Services available in connection with the CO2 Website. You may not upload, post or otherwise make available on the CO2 Website any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right owned by a third-party, and the burden of determining whether any material is protected by any such right is on you. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, violation of contract, privacy or publicity rights or any other harm resulting from any Submission that you make. You have full responsibility for each Submission you make, including its legality, accuracy, reliability and appropriateness.
You agree to pay for all royalties, fees, damages and any other monies owing any person by reason of any Submissions posted by you to or through the CO2 Website.
When you provide Submissions you agree that those Submissions shall not be in violation of the “Unauthorized Activities” paragraph below. Those prohibitions do not require CO2 to monitor, police or remove any Submissions or other information submitted by you or any other user.
10. Unauthorized Activities
When using the CO2 Website and/or the services, you agree not to:
- Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
- Use racially, ethnically, or otherwise offensive language.
- Discuss or incite illegal activity.
- Use explicit/obscene language or solicit/post sexually explicit images (actual or simulated).
- Post anything that exploits children or minors or that depicts cruelty to animals.
- Post any copyrighted or trademarked materials without the express permission from the owner.
- Disseminate any unsolicited or unauthorized advertising, promotional materials, ‘junk mail’, ‘spam’, ‘chain letters’, ‘pyramid schemes’, or any other form of such solicitation.
- Use any robot, spider, scraper or other automated means to access the CO2 Website.
- Take any action that imposes an unreasonable or disproportionately large load on CO2’s infrastructure.
- Alter the opinions or comments posted by others on the CO2 Website.
- Post anything clearly false or misleading.
- Post anything unrelated to CO2’s business, products or services.
- Post anything contrary to CO2’s public image, goodwill or reputation, provided that the foregoing will not apply to you if applicable law prohibits such limitations and restrictions.
This list of prohibitions provides examples and is not complete or exclusive. CO2 reserves the right to (a) terminate access to your Account, your ability to post to the CO2 Website (or use the Services) and (b) refuse, delete or remove any Submissions; with or without cause and with or without notice, for any reason or no reason, or for any action that CO2 determines is inappropriate or disruptive to the CO2 Website or to any other user of the CO2 Website and/or Services. CO2 may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at CO2’s discretion, CO2 will cooperate with law enforcement agencies in any investigation of alleged illegal activity on the CO2 Website or on the Internet.
Unauthorized use of any Materials or Third-Party Content contained on the CO2 Website may violate certain laws and regulations.
You agree to indemnify and hold CO2 and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees and costs of defense) CO2 or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third-party that your use of the CO2 Website or the use of the CO2 Website by any person using your user name and/or password (including without limitation, your participation in the posting areas or, your Submissions) violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third-party.
11. Proprietary Rights
“CO2” is a trademark of CO2 in the United States. Other trademarks, names and logos on the CO2 Website are the property of their respective owners.
Unless otherwise specified in these Terms, all information and screens appearing on the CO2 Website, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of CO2. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
The App software that is provided to you through the CO2 Website and Services and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, if you are a government entity, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
12. Intellectual Property Infringement
CO2 respects the intellectual property rights of others, and CO2 asks you to do the same. CO2 may, in appropriate circumstances and at its discretion, terminate service and/or access to the CO2 Website for users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on the CO2 Website, please provide CO2’s designated agent the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at the CO2 Website, and information reasonably sufficient to permit CO2 to locate the material.
- Information reasonably sufficient to permit CO2 to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
CO2’s agent for notice of claims of copyright or trademark infringement on the CO2 Website can be reached as follows:
Attn: DCMA Agent
Address: CO2 c/o TIME USA LLC, 1095 Sixth Avenue, New York, NY 10036
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
12.1. Submitting a DMCA Counter-Notification
CO2 will notify you that CO2 has removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a valid DMCA take-down notice that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to CO2’s designated agent that includes all of the following information:
Your physical or electronic signature;
Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which CO2 may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
12.2. Termination of Repeat Infringers
CO2 reserves the right, in its sole discretion, to terminate the account or access of any user of the CO2 Website and/or Services who is the subject or repeated DMCA or other infringement notifications.
13. Dispute between Users
Your interactions with individuals and/or organizations found on or through the CO2 Website or the Services, including the performance of any services by such parties and any other terms, conditions, warranties or representations associated with such transactions or dealings, are solely between you and such individual or organization. You should take reasonable precautions and make whatever investigation or inquiries you deem necessary or appropriate before proceeding with any online or offline transaction with any third party, and other individuals or entities with whom you may interact as a result of your use of the CO2 Website or the Services.
You understand that deciding whether to use the Services or to use information found on the CO2 Website, is your own decision for which you alone are responsible. You understand that we do not and cannot make representations as to the suitability of any individual you may decide to interact with on or through the CO2 Website and/or the accuracy or suitability of any advice, information, or recommendations made by any individual.
IF THERE IS A DISPUTE BETWEEN USERS OF THE CO2 WEBSITE, SERVICES, OR BETWEEN ANY USER OF THE CO2 WEBSITE OR SERVICES AND ANY THIRD PARTY, YOU ACKNOWLEDGE AND AGREE THAT CO2 IS UNDER NO OBLIGATION TO BECOME INVOLVED. IN THE EVENT THAT A DISPUTE ARISES BETWEEN YOU AND ANY THIRD PARTY, YOU HEREBY RELEASE CO2, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, MANAGERS, MEMBERS, DIRECTORS, EMPLOYEES, ATTORNEYS, AGENTS, AND SUCCESSORS IN RIGHTS FROM ANY CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, FORESEEABLE OR UNFORESEEABLE, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATED TO SUCH DISPUTES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE CO2 OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
14. Disclaimer of Warranties
Your use of the CO2 Website and/or the Services is at your own risk. The Materials have not been verified or authenticated in whole or in part by CO2, and they may include inaccuracies or typographical or other errors. CO2 does not warrant the accuracy of timeliness of the Materials provided through the CO2 Website or the Services. CO2 has no liability for any errors or omissions in the Materials, whether provided by CO2, its licensors or suppliers or other users.
ANY WARRANTIES MADE BY CO2 ARE FOR THE BENEFIT OF THE USER OF THE CO2 WEBSITE ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY. ANY MATERIALS PROVIDED THROUGH THE CO2 WEBSITE ARE LICENSED AND NOT SOLD. CO2, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THE CO2 WEBSITE, THE SERVICES, OR ANY MATERIALS RELATING TO THE QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED, PROVIDED, OR PRESENTED THROUGH THE CO2 WEBSITE OR THE SERVICES, INCLUDING WITHOUT LIMITATION THE MATERIALS. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CO2 WEBSITE, THE SERVICES, AND MATERIALS, AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THE CO2 WEBSITE IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. CO2 DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.
15. Limitation of Liability
CO2 SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THIS SITE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CO2 BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF CO2 KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE. CO2’S AGGREGATE AND CUMULATIVE LIABLITY UNDER THESE TERMS IS LIMITED TO THE TOTAL AMOUNTS THAT YOU HAVE PAID TO CO2 PURSUANT TO THE CO2 WEBSITE.
16. Local Laws; Legal Compliance
CO2 controls and operates the CO2 Website and performs the Services from its headquarters in the United States of America and the Materials may not be appropriate or available for use in other locations. You and CO2 each agree to abide by and comply with all relevant anti-money laundering laws and regulations, including without limitation the Bank Secrecy Act, as amended, and the USA Patriot Act of 2001. If you use the CO2 Website or the Services outside the United States of America, you are responsible for following applicable local laws.
If you send or transmit any communications, comments, questions, suggestions, or related materials to CO2, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the CO2 Website, any Services offered through the CO2 Website or Materials, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. Except as prohibited by applicable law, you hereby assign all right, title, and interest in, and CO2 is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. Where the foregoing assignment is prohibited by law, you hereby grant CO2 an exclusive, transferable, worldwide, royalty-free, fully paid up license (including the right to sublicense) to use and exploit all Feedback as CO2 may determine in its sole discretion. Notwithstanding the foregoing, you understand and agree that CO2 is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
18. Dispute Resolution and Arbitration; Class Action Waiver
Please read the following (this “Provision”) carefully. It affects your rights.
This Provision facilitates the prompt and efficient resolution of any disputes that may arise between you and CO2. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.
This Provision provides that all Disputes between you and CO2 shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into these Terms constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow these Terms and can award the same damages and relief as a court (including attorney’s fees).
For the purpose of this Provision, “CO2” means CO2 and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and CO2 regarding, arising out of or relating to any aspect of your relationship with CO2, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable cause of action or claim for relief, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as CO2’s licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
18.1. Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give CO2 an opportunity to resolve the Dispute. You must commence this process by sending written notification to CO2, at TIME USA LLC, 1095 Sixth Avenue, New York, NY 10036, United States and email@example.com. That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If CO2 does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
18.2. Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or CO2 may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS (the “Opt-Out Deadline”). You may opt out of this Provision by sending written notification to CO2, at TIME USA LLC, 1095 Sixth Avenue, New York, NY 10036, United States and firstname.lastname@example.org. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with CO2 through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with CO2. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
18.3. Arbitration Procedures
If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or CO2 may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration only, and shall in no event be commenced as a class arbitration or a consolidated or representative action or arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action or representative action procedures or rules apply to the arbitration.
Because the CO2 Website and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or CO2 must initiate arbitration in New York, New York.
Payment of Arbitration Fees and Costs – CO2 will pay all arbitration filing fees and AAA or JAMS hearing fees and any arbitrator’s hearing fees, costs and expenses upon your written request to the arbitrator given at or before the first evidentiary hearing in the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with CO2 as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
18.4. Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, representative action, or private attorney general action) unless both you and CO2 specifically agree to do so in writing following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the CO2 Website can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
18.5. Jury Waiver
You understand and agree that by entering into these Terms you and CO2 are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and CO2 might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.
This Provision shall survive the termination of your service with CO2 or its affiliates. Notwithstanding any provision in these Terms to the contrary, we agree that if CO2 makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require CO2 to adhere to the present language in this Provision if a dispute between you and CO2 arises.
You agree that these Terms and all documents and notices relating thereto will be drafted in the English language.
CO2 prefers to advise you if it feel you are not complying with these Terms and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by CO2, may result in immediate termination of your access to the CO2 Website without prior notice to you. The Federal Arbitration Act, New York state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to these Terms. Except for Disputes subject to arbitration as described above, any disputes relating to these Terms or the CO2 Website will be heard in the courts located in New York City in the State of New York. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. CO2’s failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and CO2 and supersede all prior or contemporaneous negotiations, discussions or agreements between you and CO2 about the CO2 Website. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.