Terms

Terms of Use

YOU ARE ENTERING INTO AN AGREEMENT WITH TAGIBLE, LLC d/b/a TAGIBLE, A COLORADO LIMITED LIABILITY COMPANY. YOU MAY HAVE REACHED THIS AGREEMENT OR THIS SITE INDIRECTLY FROM A WEBSITE NOT OWNED OR CONTROLLED BY TAGIBLE. PLEASE READ THIS DOCUMENT CAREFULLY.

Last Updated Date: January 22nd, 2014

Tagible, LLC d/b/a Tagible (“Tagible” or “we” or “our” or “us”), through our websites accessible at Tagible.com, our related domains and mobile applications, and websites and applications owned and or operated by Tagible’s third party clients (“Client Sites,” with all of the foregoing collectively being the “Site” or “Sites”), offers a proprietary online video collection, organization, and sharing platform and related services (any and all of the foregoing, the “Service”).

These Terms of Use govern your access to and use of the Service and all Collective Content (defined below), and constitute a binding legal agreement between you and Tagible.

Key Terms of Use related to Content

“Collective Content” means User Content and Tagible Content.

“Content” means links, text, graphics, images, music, audio, video, information or other materials.

“Tagible Content” means all Content that Tagible makes available through the Service, including any Content licensed from a third party, but excluding User Content.

“User” means a person that accesses or uses the Service.

“User Content” means all Content that a User posts, uploads, publishes, submits or transmits via the Service.

Certain areas of the Service, including, but not limited to, the areas of the Service through which you may purchase Tagible products, may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms of Use and terms and conditions posted for a specific area of the Service, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Service.

YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SERVICE OR BY UPLOADING OR POSTING ANY USER CONTENT ON THE SERVICE, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS OF USE, WHETHER OR NOT YOU HAVE REGISTERED ON OR THROUGH THE SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF USE, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICE OR COLLECTIVE CONTENT. If you accept or agree to these Terms of Use on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms of Use and, in such event, “you” and “your” will refer and apply to that company or other legal entity.

Eligibility

By accessing or using the Service, you represent that you are more than 18 years of age, an emancipated minor, or possess legal parental or guardian consent to use the Service, and are fully capable and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Use and to abide by and comply with these Terms of Use. In any case, you affirm that you are over 13 years of age as the Service is intended solely for persons who are 13 or older. If you are under 13 years of age, then your use of the Service is expressly prohibited.

Account Registration

In order to access certain features of the Service, you may be required to provide certain information. In other cases, you may be required to establish an account (“Account”) and become a “Registered User” of the Service and provide certain information and a username and a password. In all cases, you agree to provide accurate, current, and complete information, and at other times when you use the Service, to keep such information accurate, current, and complete. Tagible reserves the right to suspend or terminate your Account if any information provided during the registration process or at other times proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree not to disclose your password to any third party and to take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify Tagible of any unauthorized use of your Account.

Privacy

See Tagible’s Privacy Policy here for information and notices concerning Tagible’s collection and use of your personal information.

Ownership

The Service and Collective Content are protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in these Terms of Use, Tagible and its licensors exclusively own all right, title and interest in and to the Service and Collective Content, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Service or Collective Content.

Tagible Content and User Content License

Subject to your compliance with the terms and conditions of these Terms of Use, Tagible grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access, view and print any Tagible Content solely for your personal and non-commercial purposes; provided, however, any displays or print outs of the Tagible Content must be marked “© Tagible, LLC 2013-2014.  All rights reserved.” Subject to your compliance with the terms and conditions of these Terms of Use, Tagible grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access and view any User Content solely for your personal and non-commercial purposes. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Service or Collective Content, except as expressly permitted in these Terms of Use or except pursuant to Tagible’s written authorization in a separate agreement. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Tagible or its licensors, except for the licenses and rights expressly granted in these Terms of Use.

User Content

We may, in our sole discretion, permit Users to post, upload, publish, submit or transmit User Content on the Site, including Client Sites, or through the Service. Tagible does not claim any ownership rights in your User Content and nothing in these Terms of Use will be deemed to restrict any rights that you may have to use and exploit your User Content. By making available any User Content through the Service, including through the Service on or through Client Sites, you hereby grant to Tagible a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, download, modify, distribute, reference, store, cache, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Content on and through the Site, Client Sites, and third-party distribution channels selected by, but not necessarily affiliated with, Tagible, in any form, medium or technology now known or later developed, in whole or in part, for any purposes, including for both commercial and non-commercial purposes; you also grant Tagible the right to sublicense these rights to third parties for distribution via third party distribution channels, which may include, but is not limited to, viral distribution of your User Content or distribution, display, modification, transmission, streaming, or broadcast of your User Content on Client Sites. You agree that neither Tagible nor any third parties have any obligation to provide any compensation to you for your User Content or the licenses granted herein.

You acknowledge and agree that you are solely responsible for all User Content that you make available through the Service. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available through the Service or you have all rights, licenses, consents and releases that are necessary to grant to Tagible the rights in such User Content, as contemplated under these Terms of Use; and (ii) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or Tagible’s use of the User Content (or any portion thereof) on, through or by means of the Service or otherwise will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

Idea or Proposal Submissions

For any proposals or ideas that you submit to Tagible, in addition to any other representations or warranties in these terms of use, you represent and warrant that you have the right to disclose such ideas or proposal to Tagible and that such disclosure does not violate the rights of any other person or party. You will indemnify and hold harmless and defend Tagible from and against any claims, losses, expenses and liabilities arising from breach by you of the foregoing representation and warranty.

By submitting your idea or proposal you acknowledge and recognize that Tagible has a number of well-established product lines and is continually busy working on new products, services and technologies, and as such, Tagible may currently or in the future be internally developing proposals, ideas or information or receiving proposals, ideas or information from others that are likely to be similar to the proposals or ideas provided by you. Accordingly, nothing in this Agreement shall be construed as a representation or inference that Tagible will not independently develop or authorize the development of products, services or ideas, for itself or for others, that may compete with or be similar to the proposals or ideas you submit. Moreover, Tagible assumes no fiduciary or confidential obligation of any kind with respect to any proposals, ideas or suggestions made by you that relate to Tagible product lines or services. You understand we cannot and do not agree to treat as confidential your ideas, proposals, products, improvements or any other information you may decide to submit or disclose to us, even if the documents are marked as confidential or you indicate the confidential nature of the information, except to the extent covered by a separate written nondisclosure agreement, if any, we may choose to enter into with you. You also understand and agree that Tagible’s willingness to review any proposals or ideas is not an admission by Tagible of novelty, priority, or originality and does not impair Tagible’s right to contest existing or future patents or copyrights claiming the ideas. You agree that Tagible assumes no liability in reviewing these proposals or ideas and agree to rely solely upon such protection as may be afforded under the Patent and Copyright Statutes of the United States of America.

Access to the Service through Client Sites

Tagible regularly enters into agreements with its clients (each, a “Client”) to embed the Service into Client Sites, and from time to time, you may access the Service through or from such Client Sites.  In addition to the other terms herein which apply to you, the following paragraphs in this subsection govern your use of the Service through or from such Client Sites.

Your access to or use of the Service from or through a Client Site does not establish a relationship between you and such Client nor does it by itself establish the delivery of any service to you by such Client.

Even if your access to the Service from or through a Client Site was authorized, requested, or provided by such Client or any other third party, no relationship with any person or entity (other than Tagible) is created or implied by you accessing or using any Service from or through such Client Site. Any such relationship, and any relationships or privileges related thereto, may only be formed between you and such Client in accordance with the terms of a separate agreement between you and such Client.

You acknowledge and agree, as further set forth herein, Tagible may enter into one or more agreements with such Client and any other third party with respect to the use of your Content.

Digital Millennium Copyrights Act (DMCA)

Tagible complies with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended).  All notifications of claimed copyright infringement should be emailed to Tagible’s “Copyright Agent” at [email protected] (subject line: DMCA Takedown Request). You may also contact us by mail at the following address:  

Tagible, LLC
Attn: Legal

2508 W Baneberry Lane,

Highlands Ranch, CO 80129

Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:

  1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
  2. a description of the copyrighted work or other intellectual property that you claim has been infringed;
  3. a description of the material you claim is infringing and where it is located on the Service;
  4. your address, telephone number, and email address;
  5. a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
  6. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

DMCA Counter Notices

If material you have posted to any Site or Service has been removed or disabled, you may file a counter notice pursuant to 17 U.S.C. §512 (g). To be effective, the counter notice must be a written communication sent to the designated agent address listed above that includes the following:

  1. a physical or electronic signature of the User who posted such material;
  2. 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;
  3. a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
  4. your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located or, if your address is outside of the United States, for any judicial district in which Tagible may be found, and that you will accept service of process from the person who provided notification under subsection 17 U.S.C. §512 (c)(1)(C) or an agent of such person.

If a counter notice is received by the Copyright Agent, Tagible will send a copy of the counter notice to the original complaining party informing that person that Tagible may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider or User, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter notice, at our sole discretion.

Repeat Infringer Policy: In accordance with the DMCA and other applicable law, Tagible has adopted a policy of terminating, in appropriate circumstances and at Tagible’s sole discretion, Users who are deemed to be repeat infringers. Tagible may also at its sole discretion limit access to the Service and/or terminate the memberships of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

General Prohibitions

You agree not to do any of the following:

  • Post, upload, publish, submit or transmit any Content (including any links thereto) that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances.
  • Use, display, mirror or frame the Service, or any individual element within the Service, Tagible’s name, any Tagible trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Tagible’s express written consent;
  • Access, tamper with, or use non-public areas of the Service, Tagible’s computer systems, or the technical delivery systems of Tagible’s providers;
  • Attempt to probe, scan, or test the vulnerability of any Tagible system or network or breach any security or authentication measures;
  • Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Tagible or any of Tagible’s providers or any other third party (including another user) to protect the Service or Collective Content;
  • Attempt to access or search the Service or Collective Content or download Content or Collective Content from the Service through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Tagible or other generally available third party web browsers;
  • Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
  • Use any meta tags or other hidden text or metadata utilizing a Tagible trademark, logo URL or product name without Tagible’s express written consent;
  • Use the Service or Collective Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms of Use;
  • Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Service or Collective Content to send altered, deceptive or false source-identifying information;
  • Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Service or Collective Content;
  • Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Service;
  • Collect or store any personally identifiable information from the Service from other users of the Service without their express permission;
  • Impersonate or misrepresent your affiliation with any person or entity;
  • Violate any applicable law or regulation; or
  • Encourage or enable any other individual to do any of the foregoing.

Tagible will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Tagible may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms of Use. You acknowledge that Tagible has no obligation to monitor your access to or use of the Service or Collective Content or to review or edit any Collective Content, but has the right to do so for the purpose of operating the Service, to ensure your compliance with these Terms of Use, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Tagible reserves the right, at any time and without prior notice, to remove or disable access to any Content, including, any Collective Content, that Tagible, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms of Use or otherwise harmful to the Service.

Links and Client Sites

The Service contains links to other websites and online resources and may be embedded in Client Sites, and you understand that by using the Service and accessing third party links and Client Sites, you may be exposed to content that is offensive, harmful, inaccurate or otherwise inappropriate. You understand and agree that Tagible is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Tagible of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.

Feedback

If you choose to provide feedback, comments and suggestions for improvements to the Service or otherwise (in written or oral form) (“Feedback”), you acknowledge and agree that all Feedback will be the sole and exclusive property of Tagible and you hereby irrevocably assign to Tagible and agree to irrevocably assign to Tagible all of your right, title, and interest in and to all Feedback, including any intellectual property rights therein.

Sweepstakes and Contests

Tagible may operate sweepstakes, contests and similar promotions (collectively, “Promotions”) through the Service. You should carefully review the rules (e.g., the “Official Rules”) of each Promotion in which you participate through the Service, as they may contain additional important information about Tagible’s rights to and ownership of the submissions you make as part of the Promotions and as a result of your participation in such Promotions. To the extent that the terms and conditions of such Official Rules conflict with these Terms of Use, the terms and conditions of such Official Rules will control.

Modification

Tagible reserves the right, at its sole discretion, to modify, discontinue or terminate the Service or to modify these Terms of Use, at any time and without prior notice. If we modify these Terms of Use, we will post the modification on the Site, Client Sites, or via the Service or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of these Terms of Use. By continuing to access or use the Service after we have posted a modification on the Site , Client Sites, or via the Service or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms of Use. If the modified Terms of Use are not acceptable to you, your only recourse is to cease using the Service.

Termination and Account Cancellation

If you breach any of these Terms of Use, Tagible will have the right to suspend or disable your Account or terminate these Terms of Use, at its sole discretion and without prior notice to you. Tagible reserves the right to revoke your access to and use of the Service and Content at any time, with or without cause. You may cancel your Account at any time by sending an email to [email protected]

Disclaimers

THE SERVICE AND COLLECTIVE CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, TAGIBLE EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. TAGIBLE MAKES NO WARRANTY THAT THE SERVICE OR COLLECTIVE CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. TAGIBLE MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES OR CONTENT PURCHASED OR OBTAINED THROUGH THE SERVICE OR CLIENT SITES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY COLLECTIVE CONTENT OBTAINED THROUGH THE SERVICE OR CLIENT SITES.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM TAGIBLE OR THROUGH THE SERVICE OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICE.

Indemnity

You agree to defend, indemnify, and hold Tagible, its subsidiaries and affiliates, and their officers, directors, employees and agents, and all Clients of Tagible whose Client Sites you use to access the Service or upload or post User Content to the Service, and their subsidiaries and affiliates, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Service or Collective Content, or your violation of these Terms of Use.

Limitation and Liability

YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICE AND COLLECTIVE CONTENT REMAINS WITH YOU. NEITHER TAGIBLE NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICE OR COLLECTIVE CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT TAGIBLE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

IN NO EVENT WILL TAGIBLE’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE OR FROM THE USE OF OR INABILITY TO USE THE SERVICE OR COLLECTIVE CONTENT EXCEED ONE HUNDRED DOLLARS ($100). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TAGIBLE AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

Proprietary Rights Notices

All trademarks, service marks, logos, trade names and any other proprietary designations of Tagible used herein are trademarks or registered trademarks of Tagible. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.

Controlling Law and Jurisdiction

These Terms of Use and any action related thereto will be governed by the laws of the State of Colorado without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights will be the state and federal courts located in the City and County of Denver and each of the parties hereto waives any objection to jurisdiction and venue in such courts.

Entire Agreement

These Terms of Use constitute the entire and exclusive understanding and agreement between Tagible and you regarding the Service and Collective Content, and these Terms of Use supersede and replace any and all prior oral or written understandings or agreements between Tagible and you regarding the Service and Collective Content.

Assignment

You may not assign or transfer these Terms of Use, by operation of law or otherwise, without Tagible’s prior written consent. Any attempt by you to assign or transfer these Terms of Use, without such consent, will be null and of no effect. Tagible may assign or transfer these Terms of Use, at its sole discretion, without restriction. Subject to the foregoing, these Terms of Use will bind and inure to the benefit of the parties, their successors and permitted assigns.

Notices

Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms of Use, will be in writing and given by Tagible (i) via email (in each case to the address that you provide) or (ii) by posting to the Service. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

Dispute Resolution

You agree that all disputes, claims, or controversies arising out of or relating to the Terms of Use or the Service that are not resolved by mutual agreement may be resolved by binding arbitration to be conducted before the American Arbitration Association (“AAA”), or its successor. Unless otherwise agreed by the parties, arbitration will be held in Denver, Colorado before a single arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree within 7 days of delivery of the Demand for Arbitration, a single arbitrator will be appointed by the AAA. The arbitration will be conducted in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as specifically modified by these Terms of Use; provided that the arbitrator shall make a decision based upon the evidence presented and the laws of the State of Colorado (The AAA Rules are available at www.adr.org/arb_med or by calling AAA at 1-800-778-7879). The Federal Arbitration Act will govern the interpretation and enforcement of this section. The arbitration must commence within forty-five (45) days of the date on which a written demand for arbitration is filed by either party, and the arbitration will be conducted exclusively in the English language at a site specified by Tagible in Denver, Colorado. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at http://www.adr.org/aaa/faces/services/fileacase/forms and a separate form for California residents at http://www.adr.org/aaa/faces/services/fileacase/forms.) The arbitrator’s decision and award will be made and delivered within sixty (60) days of the conclusion of the arbitration and within six (6) months of the selection of the arbitrator. The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory, direct damages set forth in the Terms of Use and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under the Terms of Use, and each party hereby irrevocably waives any claim to such damages. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing party) against any party to a proceeding. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys’ fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm, including, but not limited to, the actual or threatened infringement, misappropriation or violation of such party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.

You acknowledge and agree that you and Tagible are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding, and you also agree not to participate in claims brought in a private attorney general or representative capacity. Further, unless both you and Tagible otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, Tagible shall have the sole authority to declare and deem void the entirety of this “Arbitration” section. Except as provided in the preceding sentence, this “Arbitration” section will survive any termination of these Terms of Use.

You may opt out of this agreement to arbitrate. If you do so, neither you nor Tagible can require the other to participate in an Arbitration proceeding. To opt out, you must notify Tagible in writing within 30 days of the date that you first became subject to this Arbitration provision. You must use this address to opt out:

Tagible, LLC
ATTN: Legal – Arbitration Opt Out
2508 W Baneberry Lane

Highlands Ranch, CO 80129

You must include your name and residence address, and a clear statement that you want to opt out of this arbitration agreement.

In the event you opt out of this Arbitration provision or Tagible declares and deems this Arbitration provision void as set forth above, you and Tagible agree that all matters arising from or relating to the use and operation of the Service will be governed by the substantive laws of the State of Colorado, without regard to its conflicts of laws principles and that all claims you may have arising from or relating to the operation, use or other exploitation of the Service will be heard and resolved in the federal and state courts located in the City and County of Denver, Colorado.  You consent to the personal jurisdiction of such courts over you, stipulate to the fairness and convenience of proceeding in such courts, and covenant not to assert any object to proceeding in such courts.

Changes. Notwithstanding the provisions of the “Modification” section above, if Tagible changes this “Dispute Resolution” section after the date you first accepted these Terms of Use (or accepted any subsequent changes to these Terms of Use), you may reject any such change by sending us written notice (including by email to [email protected]) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of Tagible’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Tagible in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms of Use (or accepted any subsequent changes to these Terms of Use).

Export Laws

If you choose to gain access to the Service from locations other than Colorado, you will be responsible for compliance with all local laws of any such other location, and in no event will you use the Service or Collective Content on the Site in violation of U.S. export laws or regulations.

Headings Provided for Convenience Only

The titles and section headings in these Terms of Use are provided for convenience only and have no substantive meaning or effect.

General

The failure of Tagible to enforce any right or provision of these Terms of Use will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Tagible. Except as expressly set forth in these Terms of Use, the exercise by either party of any of its remedies under these Terms of Use will be without prejudice to its other remedies under these Terms of Use or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms of Use invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms of Use will remain in full force and effect.

Notice for California Users

Under California Civil Code Section 1789.3, Users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

Contacting Tagible

If you have any questions about these Terms of Use, please contact Tagible at [email protected]