Last Modified: May 25, 2018
Terms of Service
Thank you for using the Commaful website at www.commaful.com (“Site”), the Spellbound mobile application and/or using UsePencil, Inc.’s (“Company" or “we” or “our” or “us”) service available via such website and/or our mobile application (the “App”) that, as further described in Section 1 below, allows users (each, a “User”) to access, creating, sharing and commenting on “stories” comprised of images and textual content (“Story”, “Stories”) and performing such other activities as are enabling by the functionality therein (such service collectively with the Site, the App and any other related services the Company offers from time to time, the “Service”). These Terms of Service (“Agreement”) govern your browsing, viewing and other use of the Service. If you are viewing this on your mobile device, you can also view this Agreement via a web browser at commaful.com/terms.
BEFORE USING THE SERVICE, PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING “JOIN THE COMMUNITY” OR ANOTHER MECHANISM (“ACCEPTANCE MECHANISM”) THAT INDICATES YOU ARE ACCEPTING THIS AGREEMENT OR OTHERWISE USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING: (A) THE PROVISIONS OF SECTION 16 UNDER WHICH YOU AGREE TO ARBITRATE CERTAIN CLAIMS INSTEAD OF GOING TO COURT AND AGREE NOT TO BRING OR PARTICIPATE IN CLASS ACTIONS CLAIMS; AND (B) THE PROVISIONS OF SECTION 9, WHICH SPECIFY THE TERMS AND CONDITIONS FOR RECURRING SUBSCRIPTION CHARGES FOR CERTAIN PAID ACCOUNT TYPES. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN PLEASE DO NOT CLICK THE ACCEPTANCE MECHANISM (IN WHICH CASE YOU WILL NOT BE ABLE TO USE THE SERVICE’S FUNCTIONALITY SUCH MECHANISM ENABLES) OR OTHERWISE USE THE SERVICE.
COMPANY DOES NOT HAVE ANY OBLIGATION TO CONTROL OR MONITOR YOUR OR OTHER USERS’ MEDIA. YOU AGREE NOT TO DO ANYTHING TO CREATE A FALSE IMPRESSION THAT YOU ARE ENDORSED BY, PARTNERING WITH, OR ACTING ON BEHALF OF OR FOR THE BENEFIT OF COMPANY, INCLUDING BY INAPPROPRIATELY OR ILLEGALLY USING ANY COMPANY INTELLECTUAL PROPERTY.
IF THE INDIVIDUAL ENTERING INTO THIS AGREEMENT IS DOING SO ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT HE OR SHE HAS THE REQUISITE AUTHORITY TO BIND SUCH ENTITY, ITS AFFILIATES AND ALL USERS WHO ACCESS OUR SERVICES THROUGH SUCH ENTITY’S ACCOUNT TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY, ITS AFFILIATES AND USERS ASSOCIATED WITH IT. YOU UNDERSTAND AND AGREE THAT YOUR RELATIONSHIP WITH COMPANY IS LIMITED TO BEING A SERVICE USER, AND NOT AN EMPLOYEE, AGENT, JOINT VENTURER OR PARTNER OF COMPANY FOR ANY REASON, AND YOU ACT EXCLUSIVELY ON YOUR OWN BEHALF AND FOR YOUR OWN BENEFIT, AND NOT ON BEHALF OF OR FOR THE BENEFIT OF COMPANY.
Note regarding Children. If you live in a country in the European Region (Andorra, Austria, Azores, Belgium, Bulgaria, Canary Islands, Channel Islands, Croatia, Czech Republic, Denmark, Estonia, Finland, France, French Guiana, Germany, Greece, Guadeloupe, Hungary, Iceland, Ireland, Isle of Man, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Madeira, Malta, Martinique, Mayotte, Monaco, Netherlands, Norway, Poland, Portugal, Republic of Cyprus, Réunion, Romania, San Marino, Saint Barthélemy, Saint-Martin, Slovakia, Slovenia, Spain, Sweden, Switzerland, United Kingdom, United Kingdom sovereign bases in Cyprus (Akrotiri and Dhekelia), and Vatican City.), you must be at least 16 years old to use our Services or such greater age required in your country to register for or use our Services. If you live in any other country except those in the European Region, you must be at least 13 years old to use our Services or such greater age required in your country to register for or use our Services. In addition to being of the minimum required age to use our Services under applicable law, if you are not old enough to have authority to agree to our Terms in your country, your parent or guardian must agree to our Terms on your behalf. The Services are not for persons under the age of 13. If you are under 13 years of age, then please do not use the Services. By clicking the "I Agree" button or by otherwise using or registering an account for the Services, you represent that you are at least 13 years of age or 16 in pervious mentioned locations. Additionally, please be aware that Company has created certain areas on the Service that contain adult or mature content. You must be at least 18 years of age to access and view such areas.
The Company’s DMCA Policy, at commaful.com/dmca (the “DMCA Policy”) sets forth processes and procedures for good faith notifications of alleged copyright infringement by Media (as defined below in Section 3.1) available on the Service. The DMCA Policy, as may be updated by the Company from time to time in accordance with its terms, is hereby incorporated into this Agreement, and you hereby agree to the terms set forth therein.
The Company may post certain additional guidelines and rules from time to time (“Additional Guidelines”). The Additional Guidelines, as may be updated by the Company from time to time, are hereby incorporated into this Agreement, and you hereby agree to rules and guidelines therein.
1. How it Works. The Service allows Users to upload and input certain Media (as defined below) into the Service to create a Story, and to view, comment and share upon their own and other Users’ stories. Users may post and share Stories in such formats are the Service supports from time to time, including, without limitation, as video content which may be shared both on the Service and via other online channels, including, without limitation, using email and Third Party Services (as defined below).
2. License to Use the App. If you have downloaded the App, then, subject to your compliance with all the terms and conditions of this Agreement, the Company grants you a limited, nonexclusive, nontransferable, revocable license to install and use the App on a compatible mobile device that you own or control for your personal, non-commercial purposes, in each case in the manner enabled by the Company. If you are using the App on an Apple, Inc. (“Apple”) iOS device or if you downloaded the App on an Android device via the Google Play Store from Google, Inc. (“Google”), the foregoing license is further limited to use permitted by the Usage Rules set forth in Apple’s App Store Terms of Service, or the applicable Google terms and conditions, respectively (collectively, the “App Store Terms”). Any use of the App other than for use in compliance with applicable App Store Terms is strictly prohibited.
3.1 Media. The Service allows you and other Users to input and upload text, images, and other digital content to create Stories and to share your Stories with other Users (“Media”). Some or all of your Media may be removed at any time, for any reason or for no reason and without notice. Without limiting the foregoing, your Media may be removed if the Company determines (in its sole discretion) that its content is inappropriate or if it is the subject of flagging by other Users.
3.2 Your License to Company. You shall retain all of your ownership rights in your Media. You hereby grant the Company a non-exclusive, fully paid-up, royalty-free, irrevocable, perpetual, sublicenseable and transferable license to reproduce, use, modify and prepare derivative works of, distribute, perform, display, transmit and otherwise exploit your Media for purposes of providing the Service and for troubleshooting and improving the Service. This license expressly includes the right of other Users to embed your Stories and other Media on Third-Party Services. Media you submit to Third-Party Services (as defined in Section 7) through the Service or to the Service via such Third Party Services is subject to the terms and conditions of the applicable Third-Party Service.
3.3 You understand that all Media is provided to you through the Service only on an “as-available” basis and the Company does not guarantee that the availability of Media will be uninterrupted or bug free. You agree you are responsible for all of your Media and all activities that occur under your User account.
3.4 In connection with your Media, you agree that you will not: (i) use material that is subject to third party intellectual property or proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant the Company all of the license rights granted herein; or (ii) use material that is unlawful, defamatory, libelous, threatening, pornographic (including, without limitation, child porn or nonconsensual ("revenge") porn), obscene, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, violate any law or is otherwise inappropriate. You agree, to the extent the Service provides such functionality, accurately tag and identify the nature of your uploaded Media, including, without limitation, by selecting appropriate tags and identifiers with respect to adult or mature Media. The Company may investigate an allegation that any Media does not conform to this Agreement and may determine in good faith and in its sole discretion whether to remove such Media, which it reserves the right to do at any time. If you are a copyright holder and believe in good faith that your content has been made available through the Service without your authorization, you may follow the process outlined in the Company’s DMCA Policy to request that the Company remove such content.
3.5 You hereby acknowledge that you may be exposed to Media from other Users that is inaccurate, offensive, obscene, indecent, or objectionable when using the Service, and further acknowledge that the Company does not have any obligation to control the Media shared by other Users and does not have any obligation to monitor such content for any purpose.
4. Representations and Warranties. You represent, warrant and covenant that, in connection with this Agreement or the Service, you will not and will not attempt to: (i) violate any laws, third party rights or our other policies, including by submitting Media in violation of the intellectual property rights of Company or a third party; (ii) offer for sale or rent any products or services; (iii) re-join or attempt to use the Service if the Company has banned or suspended you; (iv) defraud the Company or another user; or (vi) use another User’s account or allow another person to use your User account. Any illegal activities undertaken in connection with the Service may be referred to the authorities.
5. Ownership; Proprietary Rights. As between you and the Company, the Company owns all worldwide right, title and interest, including all intellectual property and other proprietary rights, in and to the Service, all content available in connection therewith (other than your Media) and all usage and other data generated or collected in connection with the use thereof (the “Company Materials”). Except for as expressly set forth herein, you agree not to license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make any unauthorized use of the Company Materials. You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, algorithm or programs underlying the Company Materials. The Company reserves the right to modify or discontinue the Service or any version(s) thereof at any time in its sole discretion, with or without notice.
6. Third Party Sites. The Service may include advertisements or other links that allow you to access web sites or other online services that are owned and operated by third parties. You acknowledge and agree that the Company is not responsible and shall have no liability for the content of such third party sites and services, products or services made available through them, or your use of or interaction with them.
7. Third-Party Services. The Service may include features or functionality that interoperate with online services operated by third parties (such services, “Third-Party Services”), pursuant to agreements between Company and the operators of such Third-Party Services (such agreements, “Third-Party Agreements” and such operators, “Operators”) or through application programming interfaces or other means of interoperability made generally available by the Operators (“Third-Party APIs”) which Company does not control. Third-Party Agreements and Third-Party APIs (and the policies, terms and rules applicable to Third-Party APIs) may be modified, suspended or terminated at any time. Company shall have no liability with respect to any such modification, suspension or termination. You are responsible for ensuring that your use of the Service in connection with any Third-Party Service complies with all agreements, policies, terms and rules applicable to such Third-Party Service.
8. Mobile Services; SMS. Use of the Service requires usage of data and messaging services provided by your wireless service carrier. In particular, we may use SMS services to provide you with notifications related to your use of the Service. You hereby consent to receiving such messages. You acknowledge and agree that you are solely responsible for data usage fees, messaging fees and any other fees that your wireless service carrier may charge in connection with your use of the Service.
9. Fees and Payments.
Unless otherwise specified upon enrollment, for subscription products or services, your payment method will be authorized for up to a month as soon as the free trial, if any, has concluded for the applicable Service account type and on a monthly basis thereafter until you cancel the subscription. You acknowledge and agree that the payment instrument provided by you will be automatically charged the fees you incur in connection with your use of the Service, and represent and warrant that you have all necessary rights relating to such payment instrument to authorize Company to make such charges. Your use of the Service may be suspended if we are unable to charge such payment instrument for any reason or if your account is otherwise past due. The fees applicable to your account may be subject to modification from time to time pursuant to notice (which may be given via e-mail) provided by us at least thirty (30) days in advance of the payment date for which the modification would be effective. You may at any time cancel your account as set forth below if you do not agree to any modified fees. All fees must be paid in U.S. dollars (or such other currency(ies) which may be accepted by Company from time to time, as indicated at the time of payment) and are non-refundable.
FOR ANY PAID SUBSCRIPTION SERVICE ACCOUNT TYPE, YOU WILL BE AUTOMATICALLY ENROLLED IN (AND CHARGED FOR) THE SUBSCRIPTION PLAN YOU SELECTED FOLLOWING THE END OF ANY APPLICABLE FREE TRIAL PERIOD. YOU MUST CANCEL PRIOR TO THE END OF YOUR FREE TRIAL IN THE MANNER SPECIFIED BELOW TO AVOID BEING CHARGED.
FOR SUBSCRIPTIONS DIRECTLY ON COMMAFUL.COM, YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME BY CONTACTING US AT email@example.com. IF YOU CANCEL YOUR SUBSCRIPTION, YOU MAY STILL USE YOUR SUBSCRIPTION UNTIL THE END OF YOUR THEN-CURRENT SUBSCRIPTION MONTH. TO NOT BE CHARGED FOR YOUR SUBSCRIPTION FOR THE FOLLOWING SUBSCRIPTION MONTH, YOU MUST CANCEL YOUR SUBSCRIPTION AT LEAST THIRTY (30) DAYS PRIOR TO THAT MONTH, OR YOU WILL OTHERWISE BE CHARGED FOR THAT MONTH’S SUBSCRIPTION. ALL CANCELLATION REQUESTS RECEIVED LESS THAN THIRTY (30) DAYS BEFORE THE FOLLOWING SUBSCRIPTION MONTH WILL APPLY TO THE FOLLOWING CYCLE.
FOR SUBSCRIPTIONS ON THE SPELLBOUND APP, YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW UNLESS AUTO-RENEW IS TURNED OFF AT LEAST 24 HOURS BEFORE THE END OF THE CURRENT PERIOD. YOU CAN GO TO YOUR ITUNES ACCOUNT SETTINGS TO MANAGE YOUR SUBSCRIPTION AND TURN OFF AUTO-RENEW. YOUR ITUNES ACCOUNT WILL BE CHARGED WHEN THE PURCHASE IS CONFIRMED. TO THE EXTENT YOU ARE SIGNING UP TO TEST OUR SERVICE AS PART OF A FREE TRIAL, YOU MAY CANCEL YOUR SUBSCRIPTION PRIOR TO THE END OF THE FREE TRIAL IN ACCORDANCE WITH THE AFOREMENTIONED CANCELLATION POLICIES. IF YOU SUBSCRIBE BEFORE YOUR FREE TRIAL ENDS, THE REST OF YOUR FREE TRIAL WILL BE FORFEITED AS SOON AS YOUR PURCHASE IS CONFIRMED.
9.2 Patreon Program. From time to time we may offer functionality that allows you to contribute funding toward another User’s subscription. You agree that once you have selected the applicable User to whom you would like to contribute (the “Donee”) and approved your donation, your payment will be processed by our Payment Processor and the donated funds will not be refundable or recoupable, and you will have no claim, right or title to the donated funds. We do not make any representations about your ability to make any tax deduction or any other benefit or claim with respect to the donated funds, including, without limitation, with respect to any cancellations or terminations of the applicable User’s account. You agree that you will not receive any benefit from Company or the Donee, including, without limitation, with respect to the applicable User’s Media or the intellectual property rights therein.
10. Prohibited Uses. As a condition of your use of the Service, you will not use the Service for any purpose that is unlawful or prohibited by this Agreement. You may not use the Service in any manner that in our sole discretion could damage, disable, overburden, impair or interfere with any other party’s use of it. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service. You agree not to scrape or otherwise use automated means to access or gather information from the Service, and agree not to bypass any robot exclusion measures we may put into place. In addition, you agree not to use false or misleading information in connection with your User account, and acknowledge that we reserve the right to disable any User account with a profile which we believe (in our sole discretion) is false or misleading (including a profile that impersonates a third party).
11. Additional Terms. When you use certain features or materials on the Service, or participate in a particular promotion, event or contest through the Service, such use or participation may be subject to additional terms and conditions posted on the Service. Such additional terms and conditions are hereby incorporated within this Agreement, and you agree to comply with such additional terms and conditions with respect to such use or participation.
12. Termination. You may terminate this Agreement at any time, for any reason or for no reason, by deleting your Service account by contacting us at firstname.lastname@example.org. You agree that the Company, in its sole discretion and for any or no reason, may terminate this Agreement, your account or your use of the Service, at any time and without notice. You understand and agree that, without limitation and in accordance with the license you grant us under Section 3.2, we may continue to make use of your Media as permitted by this Agreement after termination or expiration of this Agreement. The Company may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that the Company shall not be liable to you or any third-party for any such termination. Sections 3 (solely with respect to your obligations your grants of rights therein) and 4 through 18 will survive any termination of this Agreement.
13. Disclaimers; No Warranties. THE SERVICE AND ANY MEDIA, INFORMATION OR OTHER MATERIALS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE COMPANY AND ITS LICENSORS, SERVICE PROVIDERS AND PARTNERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. THE COMPANY AND ITS LICENSORS, SERVICE PROVIDERS AND PARTNERS DO NOT WARRANT THAT THE FEATURES AND FUNCTIONALITY OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE OR THE SERVERS THAT MAKE AVAILABLE THE FEATURES AND FUNCTIONALITY THEREOF ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
14. Indemnification. You agree to indemnify and hold the Company and its affiliated companies, and each of their officers, directors and employees, harmless from any claims, losses, damages, liabilities, costs and expenses, including reasonable attorney’s fees, (any of the foregoing, a “Claim”) arising out of or relating to your use or misuse of the Service, breach of this Agreement or infringement, misappropriation or violation of the intellectual property or other rights of any other person or entity, provided that the foregoing does not obligate you to the extent the Claim arises out of the Company’s willful misconduct or gross negligence. The Company reserves the right, at our own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims.
15. Limitation of Liability and Damages. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL THE COMPANY OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES THAT ARISE OUT OF OR RELATE TO THE SERVICE, INCLUDING YOUR USE THEREOF, OR ANY OTHER INTERACTIONS WITH THE COMPANY, EVEN IF THE COMPANY OR A COMPANY AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU, IN WHICH CASE THE COMPANY’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW. IN NO EVENT SHALL THE TOTAL LIABILITY OF COMPANY OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SERVICE PROVIDERS TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICE EXCEED ONE HUNDRED U.S. DOLLARS.
16.1 Agreement to Arbitrate. This Section 16 is referred to herein as the “Arbitration Agreement.” The parties that any and all controversies, claims, or disputes between you and Company arising out of, relating to, or resulting from this Agreement, shall be subject to binding arbitration pursuant to the terms and conditions of this Arbitration Agreement, and not any court action (other than a small claims court action to the extent the claim qualifies and other than claims for injunctive or other equitable relief). The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
16.2 Class Action Waiver. THE PARTIES AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S).
16.3 Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association's ("AAA") rules and procedures (the "AAA Rules"), as modified by this Arbitration Agreement. If there is any inconsistency between the AAA Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would, including without limitation, the limitation of liability provisions in Section 15. You may visit http://www.adr.org for information on the AAA and http://www.adr.org/fileacase for information on how to file a claim against the Company.
16.4 Venue. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Company may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on each party, but subject to the arbitrator's discretion to require an in-person hearing if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by either or both parties unless the arbitrator requires otherwise.
16.5 Governing Law. The arbitrator will decide the substance of all claims in accordance with the laws of the state of California, without regard to its conflicts of laws rules, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Service users, but is bound by rulings in prior arbitrations involving you to the extent required by applicable law.
16.6 Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be governed by the AAA's Rules. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees.
16.7 Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
16.8 Severability. If a court decides that any term or provision of this Arbitration Agreement other than Section 16.2 is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court decides that any of the provisions of Section 16.2 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of this Agreement will continue to apply.
17. Miscellaneous. The Company may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time. Changes will be effective: (i) thirty (30) days after the Company provides notice of the Changes, whether such notice is provided through the Service user interface, is sent to the e-mail address associated with your account or otherwise; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first. Under this Agreement, you consent to receive communications from the Company electronically. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to this Agreement or the Service that is not subject to arbitration under Section 16 shall be filed only in the state or federal courts in California (or a small claims court of competent jurisdiction) and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. Notwithstanding the foregoing, either party may petition any court of competent jurisdiction for injunctive or other equitable relief. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by the Company without restriction. This is the entire agreement between us relating to the subject matter herein and shall not be modified except in a writing, signed by both parties, or by a change to this Agreement made by the Company as set forth herein.
18. More Information; Complaints. The services hereunder are offered by UsePencil, Inc., email: email@example.com, address: 1259 El Camino Real #158 Menlo Park, CA 94025. If you are a California resident, we are required to inform you that you may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs via mail at 1625s North Market Blvd., Suite N112, Sacramento, CA 95834 or telephone at (916) 445-1254 or (800) 952-5210. Hearing impaired users can reach the Complaint Assistance Unit at TDD (800) 326-2297 or TDD (916) 322-1700.