Terms
Last Updated: 2024-05-23
Welcome
Welcome to Blotter.com.
Introduction
These Terms and Conditions (“Terms and Conditions”) apply to your use of the online services (the “Services”) provided by Blotter Ltd, its subsidiaries and affiliated businesses (“Blotter,” “we,” or “us”) through its website and mobile applications (the “Platform”).
In these Terms and Conditions, the terms “User” “you” and “yours” refer to the person using the Services.
Please read these Terms and Conditions carefully.
YOU UNDERSTAND THAT BY ACCESSING OR USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE LEGALLY BOUND BY AND COMPLY WITH THESE TERMS AND CONDITIONS. IF YOU DO NOT OR CANNOT AGREE WITH ANY PART OF THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICES. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT CREATE AN ACCOUNT OR USE THE SERVICES.
PLEASE NOTE THAT SECTION 18 (LIMITATION OF LABILITY) AND SECTION 20 (GOVERNING LAW, DISPUTE RESOLUTION, ARBITRATION, VENUE, SEVERABILITY) BELOW INCLUDE PROVISIONS THAT LIMIT OUR LIABILITY TO YOU AND REQUIRE YOU TO RESOLVE ANY DISPUTE WITH US THROUGH FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS, AND NOT BY A LAWSUIT OR RESORT TO COURT PROCESS. THIS MEANS THAT (I) YOU ARE GIVING UP, AND YOU WAIVE, THE RIGHT TO HAVE ANY SUCH DISPUTE DECIDED IN A COURT OF LAW BEFORE A JURY OR A JUDGE (EXCEPT AS SET FORTH EXPRESSLY IN THE SECTION TITLED DISPUTE RESOLUTION), AND (II) THAT YOU ARE GIVING UP, AND YOU WAIVE, THE ABILITY TO PURSUE ANY SUCH DISPUTE IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION OR PROCEEDING.
About Blotter and the Services
Our Platform is a marketplace that allows third-party content creators (“Creators”) to publish articles, blogs and other content on the Platform (“Creator Content”) and accept payment from Users to view and license such Creator Content subject to these Terms and Conditions and a Content License Agreement between you and the applicable Creator. Use of our Services as a Creator is subject to these Terms and Conditions and the Creator Addendum. Creators are Users, and if you are a Creator, these Terms and Conditions apply to your use of our Services unless otherwise noted. Blotter is not a party to the contracts between a User and Creator to license and view Creator Content. We may also make available through the Services other data, information, research, e-letters, newsletters, digests, articles and blogs, news aggregate services, emails, images, graphs, videos, podcasts, webinars, conferences, books, audio (including, but not limited to, access to conference calls), software, analytic tools, and any visual, audial or digital content (“Blotter Content” and together with Creator Content and User Content (as defined below), “Content”). The Services include certain Services provided free of charge (“Free Services”) as well as Services for which you must pay a one-time fee, subscription fee, maintenance fee or other fee in order to have access, including, but not limited to, Creator Content (collectively “Premium Services”). These Terms and Conditions apply to both Free Services and Premium Services.
Changes to these Terms and Conditions and the Services.
We reserve the right, in our sole discretion, to change, modify and/or revise these Terms and Conditions (including any exhibit, policy, annex, or addendum). Any such changes are effective immediately upon our posting of the amended Terms and Conditions or other notice to you. You agree that your continued use of the Services following such posting constitutes acceptance of the Terms and Conditions as amended. If you have these Terms and Conditions cached on a browser, the applicable Terms and Conditions is the most recent version of the Terms and Conditions that appears on a non-cached browser. You should review the Terms and Conditions on our Platform frequently. We reserve the right at any time to change all or any portion of the Services, eliminate or discontinue any content or feature of the Services (including but not limited to adding or removing particular Creators), and/or cease to provide Creator Content. You acknowledge and agree that: (i) all or any part of the Services may not be accessible at any time, for any period, or for any reason; and (ii) Blotter will not be liable if for any reason all or any part of the Services are unavailable at any time or for any period. You agree that Blotter shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services.
Blotter Does Not Provide Investment Advice.
You acknowledge the following: Blotter is a publisher of financial information, not an investment adviser. We rely upon the “publisher’s exclusion” from the definition of investment adviser under Section 202(a)(11)(D) of the Investment Advisers Act of 1940 and corresponding state securities laws. We do not provide personalized or individualized investment advice. Any information provided as part of the Services is impersonal and not specific to any person’s investment needs. You acknowledge and agree that no Content published or otherwise provided as part of any Service constitutes a personalized recommendation or advice regarding the suitability of, or advisability of investing in, purchasing or selling any particular investment, security, portfolio, commodity, transaction or investment strategy. To the extent that any of the Content may be deemed to be investment advice or recommendations in connection with a particular security, such information is impersonal and not tailored to the investment needs of any specific person. None of our personnel, including, but not limited to, editorial staff, employees or independent contractors (collectively, “Our Personnel”), will provide you with personalized advice regarding the value or suitability of, or advisability of investing in, purchasing or selling, any particular investment, security, portfolio, commodity, transaction, investment strategy or any other matter. From time to time the Services provide the opinion and commentary of Our Personnel, as well as opinion and commentary of third parties that are not controlled by Blotter, including Creators (collectively, “Third-Party Contributors”). The Services and/or Content are not to be used or construed as a recommendation or offer to buy or sell, or a solicitation of an offer to buy or sell, any security, company, financial product or instrument, or to participate in any particular investment strategy, by Blotter or any third party. The Services and all Content are for informational purposes only and are not intended to provide you with tax, legal, investment or accounting advice. Blotter shall not be liable for any investment decisions based upon or results obtained from the Services and/or Content. Trading in investments involves risk and volatility, and any of the investments discussed in the Services may lose their value after purchase. Past investment results are not necessarily indicative of future performance. From time to time, one or more Third-Party Contributors or their affiliates may have a position in the investment or securities written about in the Services. In cases where the position is held at the time of publication, Third-Party Contributors may make a related disclosure; however, Blotter has no duty or obligation to investigate or determine whether Third-Party Contributors or their affiliates hold a position in an investment or security written about in the Services or to ensure that Third-Party Contributors make any such disclosure. In addition, Third-Party Contributors may be subject to certain restrictions on trading for their own account. In addition, certain of Our Personnel and other persons from our affiliates may, from time to time, have positions in, or buy or sell, the investments, securities or derivatives thereof that are referenced in the Content and may take positions inconsistent with the views expressed therein. Where Services and/or Content provided by Blotter consists of pricing or performance data, such data has been obtained from third-party sources reasonably believed to be reliable. However, the accuracy, completeness or timeliness of any such data or data calculations are not guaranteed by Blotter or any other third party. You acknowledge and agree that we do not have control over the quality, accuracy, completeness, veracity or legality of Content provided by Third-Party Contributors. When U.S., international and/or other similar exchanges are open, any quotes that we may provide through our Platforms are delayed. When such exchanges are not open, quotes are only current as of the close of the last day of trading. You acknowledge and agree that Blotter shall not be liable to you or any third party for any damage or loss resulting from your reliance or trading on the quotes, information or data contained or referenced in the Content or Services. To the extent any of the Services involve a model portfolio of investments, such portfolio provides investment ideas and/or provides information regarding investments, and is chosen by Our Representatives or Outside Contributors in accordance with our or their stated investment strategy and is for informational purposes only. Your actual results may differ from results reported for the portfolio for many reasons, including, but not limited to, trading commissions or pricing differences due to timing of a purchase or sale of an investment in the portfolio. The information, research and opinions and other Content that Blotter provides as part of the Services are obtained or derived from sources believed to be reliable, but we cannot guarantee their accuracy and completeness nor the opinions based thereon. You should not rely solely upon such information, research and opinions for purposes of transacting securities or other investments, and you are encouraged to conduct your own research and due diligence, and to seek the advice of a qualified investment professional before you make any investment. None of the information provided as part of our Services constitutes, or is intended to constitute, a recommendation by us of any particular security or other investment or trading strategy or a determination by us that any security or other investment or trading strategy is suitable for any specific person. Investing in securities or other investments is speculative in nature and involves substantial risk of loss of the money invested.
You must be eligible to use our Services.
You may not use the Services if you are under 13 or if you are between the ages of 13 and 16 and live in a jurisdiction where parental consent would be required for us to process your personal information. We reserve the right to refuse access by users under certain ages, as set in our sole discretion from time to time. If you are under 18 years of age (or the age of legal majority where you live), you may use our Services only with the permission of a parent or legal guardian who agrees to be bound by these Terms and Conditions. If you are a parent or legal guardian of a User under the age of 18 (or the age of legal majority where you live), you agree to be fully responsible for the acts or omissions of such User, including any breach of these Terms and Conditions, and for determining the suitability of the Services for such user.
User Accounts.
If you register for an account to use our Services, you must provide accurate account information and ensure that you maintain the accuracy of this information at all times. You also must maintain the security of your account (including by logging out of your account at the end of each session), and promptly notify us if you discover or suspect that someone has accessed your account or your account credentials without your permission. If you permit others to use your account, you are responsible for the activities of those users. We reserve the right to reclaim usernames for any reason, including on behalf of businesses or individuals that hold trademark rights or other legal claims in those usernames. Blotter may, at any time and for any reason, in its sole discretion and without any liability to you or any third-party, suspend or terminate your account or use of or access to the Services (or any portion thereof).
User Content
Our Services may allow you and other users to post or otherwise submit comments, messages, photos, ratings, and other materials (collectively, “User Content”) on Creator Content, Blotter Content, or otherwise on the Platform. You grant Blotter a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content for any purpose and in all media formats and channels now known or later developed without compensation to you for any purpose. You warrant that the holder of any worldwide intellectual property right, including moral rights, in the User Content has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Blotter, are responsible for all of the User Content that you provide to the Services. In addition, Blotter shall have the right, in its sole discretion, to edit, duplicate, or alter the User Content in any manner for any purpose that Blotter deems necessary or desirable, and you irrevocably waive any and all so-called moral rights you may have in the User Content. You further agree that you shall have no right of approval and no claim to compensation in connection with the User Content. You may not create, post, store or share any User Content that violates these Terms and Conditions. You represent and warrant that your User Content, and our use thereof as permitted by these Terms and Conditions, will not violate any rights of or cause injury to any person or entity and that you have all rights necessary to grant us the license above. Although we have no obligation to screen, edit or monitor User Content, we may elect not to publish, to delete, or to remove User Content at any time and for any reason with or without notice. Your decision to submit User Content to the Services is voluntary, and at your discretion. Blotter may preserve and store User Content and may disclose such content if required to do so by law or if Blotter believes in good faith that such preservation or disclosure is reasonably necessary to: (i) comply with legal process (e.g., subpoenas); (ii) enforce these Terms and Conditions; (iii) respond to claims that any User Content violates the rights of third parties; or (iv) protect the rights, property, or personal safety of Blotter, its Creators, its users and the public.
User Conduct and Content.
Subject to your compliance with these Terms and Conditions, you may use the Services only for your own personal, noncommercial use (except as specifically pre-approved in writing by Blotter for commercial use, or, if you are a Creator, then only in accordance with our Creator Addendum). Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited. You may not create, post, store or share any User Content or Creator Content that: is confidential or that you do not have all necessary rights to disclose; would violate state or federal securities laws; contains or depicts nudity, sexual activity or violence or is otherwise unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent; Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law; May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party; Contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences; Contains any unsolicited promotions (such as “spam”), political campaigning, advertising or solicitations; Contains advertisements or promotions, including to solicit interest in a contest, sweepstake or other promotion; Contains any private or personal information of a third party without such third party’s consent; Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; Is content written primarily in a language other than English; Is identical to, substantially the same as, or derived from other Creator Content, User Content and/or content published elsewhere on the Internet (this applies even if you are the owner of that content and/or have the rights to publish that content online); or In our sole judgment, is of poor quality, is objectionable, restricts or inhibits any other person from using or enjoying our Services, or may expose Blotter or others to any harm or liability of any type. You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort in connection with your use of our Services, and you are solely responsible for your conduct while using our Services. Further, you will not: Engage in any harassing, threatening, intimidating, predatory, discriminatory or stalking conduct; Use or attempt to use another user’s account without authorization from that user and Blotter; Impersonate or post on behalf or any person or entity or otherwise misrepresent your affiliation with a person or entity; Reverse engineer, disassemble, or decompile the Services or apply any other process or procedure to derive the source code of the Services; Modify, translate, copy, or create derivative works of the Services or any part, feature, function or user interface thereof; Make the Services available to any third party, or use any of the Services for the benefit of anyone other than yourself; Sell, resell, license, sublicense, distribute, rent or lease any of the Services in a service bureau or outsourcing offering; Use the Services to violate third party rights or applicable laws; Distribute, publicly perform or publicly display all or portions of our Services except as expressly permitted by us or our licensors; Attempt to gain unauthorized access to the Services or its related systems or networks; Use any robot, spider, or other such programmatic or automatic device, including, without limitation, automated dial-in or inquiry devices, to obtain information from the Services or otherwise monitor or copy any portion of the Services; Systematically collect or use any content from the Services, including through the use of any data mining, or similar data gathering and extraction methods; (x) disrupt or interfere in any manner with the operation of the Services, or the hardware or network used to operate the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the he Services; Allow, enable, or otherwise support the transmission of unsolicited or unauthorized advertising, junk or bulk email (SPAM), chain letters, letters relating to a pyramid scheme, or any other unsolicited commercial or non-commercial communication; Upload or otherwise spread any software viruses, worms, time bombs, corrupted files, Trojan horses or any other computer code, files, or programs that are designed or intended to disrupt, damage, overburden, impair or limit the functioning of any software, hardware, network, server, or communications systems or equipment; Attempt to disable, bypass, modify, defeat, or otherwise circumvent any security related tools incorporated into the Services; create Internet “links” to or from the Platform or the Services, or “frame” or “mirror” any Content, place pop-up windows over its pages, or otherwise affect the display of its pages; Use our Services other than for their intended purpose or in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner; Bypass or ignore instructions contained in our robots.txt file; Develop or use any applications that interact with our Services without our prior written authorization; Solicit or otherwise attempt to collect personal information or passwords from other users; or Use the Services for any purpose other than expressly permitted in these Terms and Conditions, including for benchmarking, competitive analysis, or creating a competing product. Enforcement of this Section 8 is solely at Blotter’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 8 and any action taken or not taken by Blotter hereunder shall not create any cause of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by this section.
Blotter’s Proprietary Rights
The Services, the Platform, and the Content are the property of Blotter and/or its licensors. You may access and use the Content and download and/or print out one copy of any content from the Services, solely for your personal, noncommercial use. You acknowledge that you do not acquire any ownership rights by using the Services. Except as explicitly stated in these Terms and Conditions, all rights in and to the Services are reserved by us or our licensors. If you provide any Feedback to Blotter, Blotter will be entitled to use the Feedback without restriction. You hereby irrevocably assign to Blotter all right, title, and interest in and to the Feedback and agrees to provide Blotter any assistance it requires to document, perfect, and maintain its rights in the Feedback. “Feedback” means all suggested improvements to the Services that you provide to us. Your Access and Use of Creator Content
When you purchase a license to Creator Content, you and Creator will agree to these additional License Terms. Blotter has no control over the quality, safety, morality or legality of any aspect of Creator Content or any claims made by Creators, the truth or accuracy Creator Content, or the skills, abilities, or qualifications of Creators. Blotter does not conduct background checks regarding any users of the Services and our verification process for Creators is limited. Payment
You understand that use of the Services may result in payments by you to Creators in order to license Creator Content ("Charges"). Blotter will facilitate payment of the applicable Charges on behalf of the Creator, as such Creator’s limited payment collection agent, using the preferred payment method designated in your account, and will send you a receipt by email. Payment of the Charges in such manner shall be considered the same as payment made directly by you to the Creator. Charges will be inclusive of applicable taxes where required by law. Charges paid by you are final and non-refundable, unless otherwise determined by Blotter. All Charges are due immediately and payment will be facilitated by Blotter using the preferred payment method designated in your account. If your primary account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that Blotter may, as the Creator’s limited payment collection agent, use a secondary payment method in your account, if available. Blotter reserves the right to establish, remove and/or revise Charges for any or all aspects of the Services at any time in Blotter’s sole discretion. Blotter may from time to time provide certain users with promotional offers and discounts that may result in different Charges for the same or similar Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you. Access to our Platform, Connectivity, and Information You Provide to Us
You are responsible for obtaining appropriate software and hardware capabilities (consistent with any technical, quality, or other requirements described in the Services), at your own expense, to enable use of the Services. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services. We reserve the right to change the manner users access our Services, including any software, hardware, or other requirements of the Services at any time without prior notice. Privacy
Blotter understands the importance of confidentiality and privacy regarding your personal and health related information. Please see our Privacy Policy for a description of how we may collect, use, and disclose your personal information. The Privacy Policy is hereby incorporated into these Terms and Conditions by reference and constitute a part of these Terms and Conditions. Third-Party Features
The Services may contain hyperlinks, plug-ins, products, or features operated by third parties (“Third-Party Features”). Such Third-Party Features are not under our control, therefore, we are not responsible for the information, products or services described by, or for the content or features of any such Third-Party Features. Inclusion of any Third-Party Features does not necessarily imply endorsement of the Third-Party Features or any association with its operators. Your use of these Third-Party Features is at your own risk, and we are not liable to you in any way, either directly or indirectly, for any content, errors, damage, or loss caused by or in connection with use of or reliance on information contained in or provided to Third-Party Features. You may have identified and arrived at the Services through a Third-Party Features, and you understand and agree that we are not responsible for the information, products or services described on those Third-Party Features and only these Terms and Conditions will apply to your use of or access to the Services. In the event of any dispute between you and any provider of a Third-Party Feature, any other user of our Services, or any other entity or individual, you understand and agree that Blotter is under no obligation to become involved in such dispute, and you hereby release and indemnify Blotter, and its subsidiaries, and affiliates, and all of their respective contractors, directors, officers, employees, representatives, proprietors, partners, shareholders, servants, principals, agents, predecessors, successors, assigns, accountants, and attorneys (collectively, “Blotter Parties”) from any and all claims, demands and/or damages (actual or consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes or the Services or the features and services therein. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” Termination
You may terminate your account at any time in your account setting or by contacting support@blotter.fyi. Blotter may terminate your use of the Services or any of our features or services at any time and for any reason without notice, including, for example, for conduct violating these Terms and Conditions. The provisions of these Terms and Conditions concerning Service security, prohibited activities, copyrights, trademarks, user submissions, disclaimers, limitation of liability, arbitration, and resolution of Disputes (as defined below), indemnity and jurisdictional issues shall survive any such termination or any other termination of these Terms and Conditions or your relationship with Blotter. In order to comply with applicable law or other recordkeeping practices in the ordinary course of our business, or to otherwise enforce our rights under these Terms and Conditions, we may retain indefinitely for our records a copy of any and all User Content. We are not responsible for maintaining any records on your behalf. Errors and Inaccuracies
Occasionally there may be information on our Platform or in the Services that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies, or omissions, and to change or update information or cancel orders if any information in the Services or on any related website or the Platform is inaccurate at any time without prior notice (including after you have submitted your order for Creator Content). DISCLAIMER OF WARRANTIES
THE SERVICE IS PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS. ANY ACCESS TO OR USE OF THE SERVICE IS VOLUNTARY AND AT THE SOLE RISK OF THE USER. BLOTTER AND EACH THIRD PARTY OFFERING PRODUCTS OR SERVICES THROUGH THE SERVICE, INCLUDING THE CONTENT CREATORS, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, SATISFACTORY QUALITY AND FITNESS FOR PARTICULAR PURPOSE WITH REGARD TO THE SERVICE, AND WITH RESPECT TO ANY INFORMATION, CONTENT, PRODUCT, SERVICE, OR OTHER MATERIAL PROVIDED ON OR THROUGH THE SERVICE OR THE PLATFORM. BLOTTER DOES NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, RELIABILITY, TIMELINESS OR USEFULNESS OF THE SERVICE. BLOTTER DOES NOT WARRANT THAT THE SERVICE WILL FUNCTION WITHOUT DELAYS, DISRUPTIONS, INTERFERENCES, IMPERFECTIONS, CORRUPTION, CYBER ATTACK, VIRUSES, MALWARE, OR ANY ADVERSE INCIDENT. LIMITATION OF LIABILITY
YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW AND EXCEPT AS SET FORTH IN THIS SECTION, IN NO EVENT WILL BLOTTER OR THE BLOTTER PARTIES BE LIABLE TO YOU OR TO ANY PARTY FOR ANY CLAIMS, LIABILITIES, LOSSES, COSTS OR DAMAGES UNDER ANY LEGAL OR EQUITABLE THEORY, WHETHER IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), CONTRACT, WARRANTY, STATUTE OR OTHERWISE, INCLUDING ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE OR DATA, SERVICE INTERRUPTION, COMPUTER OR MOBILE PHONE DAMAGE, OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS, INCLUDING DEATH, ARISING OUT OF OR IN CONNECTION WITH ANY ACCESS, USE OF (OR INABILITY TO USE) THE SERVICES OR ANY SERVICES CONTENT, OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICES. THIS IS TRUE EVEN IF BLOTTER OR RELATED PERSONS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. IN NO EVENT SHALL BLOTTER OR THE BLOTTER PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) EXCEED IN THE AGGREGATE, THE GREATER OF (I) ONE HUNDRED DOLLARS ($100), OR (II) THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for damages such as in this section. Accordingly, some of these limitations may not apply to you. If you are a resident of a U.S. state that permits the exclusion of these warranties and liabilities, then the limitations in this section specifically do apply to you. Indemnification
You agree to defend, indemnify, and hold Blotter and any third parties offering products or services through the Services, including the Creators, harmless from and against any and all suits, actions, claims, proceedings, damages, settlements, judgments, injuries, liabilities, obligations, losses, risks, costs, and expenses (including, without limitation, attorneys’ fees and litigation expenses) relating to or arising from your use of the Services, your fraud, violation of law, or willful misconduct, any breach by you of these Terms and Conditions or your violation of any rights of any other person or entity. We reserve the right to control the defense of any claim by a third party for which we are entitled to indemnification, and you agree to provide us with such cooperation as is reasonably requested by us. Governing Law, Dispute Resolution, Arbitration, Venue, Severability
IMPORTANT NOTE: PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND BLOTTER TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM BLOTTER. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS AND CONDITIONS, YOU AND BLOTTER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION. Arbitration Agreement Any dispute, claim or controversy of any nature arising out of or relating in any way to the use of the Services, these Terms and Conditions, or this Arbitration Agreement (as defined below), including without limitation the interpretation, validity, scope, or applicability of these Terms and Conditions or the Arbitration Agreement (hereinafter, collectively, the “Dispute”), which cannot be resolved informally, shall be resolved by binding arbitration on an individual, and not a class or representative, basis under the terms set forth below (the “Arbitration Agreement”). This Arbitration Agreement applies to you and Blotter, and to any of our subsidiaries, affiliates, agents, employees, predecessors in interest, successors in interest, and assigns. THE PARTIES UNDERSTAND THAT THEY WOULD HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE DISPUTES THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE THEIR CASE, AND TO PARTICIPATE IN A CLASS ACTION OR OTHER PROCEEDING INVOLVING MULTIPLE CLAIMANTS, BUT THEY INSTEAD CHOOSE AND AGREE TO HAVE ALL DISPUTES AS SET FORTH HEREIN DECIDED THROUGH INDIVIDUAL ARBITRATION. Disputes Excluded from Arbitration Disputes where the amount in controversy is less than US$10,000 and filed by you or Blotter individually in a small claims court are not subject to arbitration, so long as the disputes remain in such court and advance only an individual (non-class, non-representative) claim for relief. In the event of any actual, alleged or threatened violation of confidentiality or violation of Blotter’s or its licensor’s intellectual property or other proprietary rights, Blotter may immediately resort to court proceedings in a court of competent jurisdiction as set forth below in order to seek immediate injunctive relief without posting of a bond, proof of damages or other similar requirement. The institution of any action for injunctive relief shall not constitute a waiver of the right or obligation of any party to submit any claim seeking relief other than injunctive relief to arbitration. Confidential Proceedings The parties expressly agree that any and all actions taken under the Arbitration Agreement and related provisions, including all filings, orders, judgments, and awards made in any arbitration proceeding, are confidential and may not be disclosed to any third party, except as otherwise may be required by law. Arbitrator The arbitration proceeding will be administered by the American Arbitration Association (“AAA”) under the AAA’s Commercial Arbitration Rules (the “AAA Rules”) before a single arbitrator selected pursuant to the AAA Rules. The decision of the arbitrator will be final and binding. Any final award or judgment may be filed and enforced in any court of competent jurisdiction. The parties shall share equally in the costs assessed for the arbitration, and each party shall bear its own attorneys’ fees and costs. Any arbitration proceeding may not be consolidated or joined with any other proceeding and will not proceed as a class action. Place and Governing Law The place of arbitration shall be in King County, Washington, unless otherwise agreed to in writing by all parties to the arbitration. The parties acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce, and the Federal Arbitration Act, 9 U.S.C. § 1, et seq., as may be amended from time to time, shall govern the interpretation, enforcement, and proceedings pursuant to this Arbitration Agreement. To the extent state law is applicable, the laws of the State of Washington shall apply without regard to conflict of laws provisions. Survival; Severability This Arbitration Agreement provision will survive the termination of these Terms and Conditions. Except as set forth in the Section titled Class Action Waiver below, if any portion of this Arbitration Agreement is deemed invalid or unenforceable through a final judicial determination, the entire Arbitration Agreement shall be null and void. No portion of this Arbitration Agreement may be amended, severed, or waived absent a written agreement between you and Blotter. Time Limitation on Claims The parties agree that they must initiate arbitration within one (1) year after any Dispute arose; otherwise, the Dispute is permanently barred. Class Action Waiver YOU AND BLOTTER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Blotter agree otherwise, the arbitrator may not consolidate one or more person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding. If there is a final judicial determination that applicable law precludes enforcement of this Section’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.