Terms of Service
Datashake Terms of Service
These terms were last updated on August 1, 2019.
1. Acceptance of Terms.
a. Reviewshake, Inc. (“Reviewshake, Datashake”) provides Services (defined below) to you subject to this Terms of Service (“TOS”) agreement. By accessing or using the Service, or our site https://www.datashake.com (“Site”), you acknowledge that you have read, understood, and agree to be bound by this TOS and affirm that you are over the age of 18. If you are entering into this TOS on behalf of a business or other legal entity, you represent that you have the authority to bind the entity and its affiliates to this TOS, in which case the terms “you” or “your” shall refer to the entity and its affiliates. If you do not have such authority, or if you do not agree with this TOS, you must not accept this TOS and may not use the Service. You acknowledge that this TOS forms a binding contract between you and Reviewshake, even though it is electronic and is not physically signed, and that it governs without limitation your use of and access to the Service.
b. We may change this TOS from time to time by notifying you of such changes by any reasonable means, including by posting a revised TOS through the Site. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised TOS incorporating such changes, or otherwise notified you of such changes. Subject to the foregoing provision of this Section 1(b), you are bound by all such changes effective on the effective date of the change, and if any change to this TOS is not acceptable to you, your only remedy is to terminate services in accordance with Section 8.
c. The “Last Updated” legend above indicates when this TOS was last changed. We may, at any time and without liability or prior notice, modify or discontinue all or part of the Service (including access to the Service via any third-party links); charge, modify or waive any fees required to use the Service; or offer opportunities to some or all Service users. We reserve the right to introduce new features or functionality for which the payment of fees may be required.
d. THIS TERMS OF SERVICE CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH IN SECTION 19, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OR CLASS ARBITRATIONS OF ANY KIND. PAID PLANS EXECUTED THROUGH SELF-SERVICE ON THE SITE WILL AUTOMATICALLY RENEW UNTIL YOU CANCEL THEM PURSUANT TO SECTION 8 OF THIS TOS. TO CANCEL, [FOLLOW THE INSTRUCTIONS INCLUDED IN SECTION 8 OF THIS TOS]. CANCELLING WILL END THE AUTOMATIC RENEWALS OF YOUR PAID SERVICES, BUT WE WILL KEEP ANY FEES WE HAVE ALREADY COLLECTED FROM YOU (UNLESS WE ARE REQUIRED BY LAW TO REFUND THEM).
2. Description of Service. The “Service” includes (a) the Site, (b) Reviewshake’s services, including without limitation application program interfaces and related materials (the “API” or “APIs”) and (c) all software (“the Software”) (including all software, integrations, and user interfaces made available by Reviewshake), data (including personally identifiable information – “Personal Data”), reports, text, images, sounds, video, and content made available through any of the foregoing (collectively referred to as the “Data”). Any new features added to or augmenting the Service are also subject to this TOS. All paid plans executed through self-service on the Site and/or separately executed Order Forms (“Order Form”) fall under this TOS unless you have entered into a separately signed Master Subscription Agreement with Reviewshake (each a “Subscription”).
3. Jurisdictional Issues. The Service is controlled or operated (or both) from the United States, and is not intended to subject Reviewshake to any non-U.S. jurisdiction or law. The Service may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the Service is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the Service’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
4. Access and Use of the Service. Subject to the terms and conditions of this TOS, you may access and use the Services only for lawful purposes and in accordance with the provisions of this TOS (including the documents referenced in this TOS). You acknowledge that the Services may become temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Reviewshake or by third-party providers, or because of other causes beyond our reasonable control.
a. Rules of Conduct. You shall not (and shall not allow any third party to) (a) license, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Service available to any third party; (b) use the Service in any fraudulent, tortious, or unlawful manner (including without limitation in violation of any CAN-SPAM, Telephone Consumer Protection Act, data, privacy, export control, federal, state, provincial and national laws or regulations) or in any manner that interferes with or disrupts the integrity or performance of the Service or its components, (c) use the Service with any products, services, or materials that constitute, promote or are used primarily for the purpose of dealing in: (i) libelous, defamatory, obscene, pornographic, abusive or otherwise illegal or offensive content; (ii) spyware, adware, or other malicious code; (iii) counterfeit goods; (iv) items subject to US embargo; (v) unsolicited mass distribution of email or multi-level marketing proposals; (vi) hate materials; (vii) hacking/surveillance/interception/descrambling equipment; or (viii) stolen products or items used for theft; (d) modify, adapt or hack the Service, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks, (e) frame or mirror any portion of the Service, or otherwise incorporate any portion of the Service, except to the extent such restriction is expressly prohibited by applicable law; (f) interfere with or disrupt the operation of the Service or the servers or networks used to make the Service available, including by hacking or defacing any portion of the Service or content made available through the Service or violate any requirement, procedure or policy of such servers or networks; (g) post, transmit or otherwise make available through or in connection with the Service any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment (each, a “Virus”); (h) restrict or inhibit any other person from using the Service; (j) use the Service for any purpose other than your internal business purposes and in no event for any purpose competitive with Reviewshake as determined by Reviewshake; (k) access the Service by any means other than through the interface that is provided by Reviewshake for use in accessing the Service; (l) use the Service in violation of this Agreement, the applicable Order Form, or any Documentation; or (m) otherwise copy, disclose, rent, lease, sell, transfer, distribute, assign, license, disassemble, reverse engineer or decompile (except to the limited extent expressly authorized by applicable statutory law), modify or alter any part of the Service.
b. You shall comply with any codes of conduct, policies or other notices Reviewshake provides you or publishes in connection with the Service, and you shall promptly notify Reviewshake if you learn of a security breach related to the Service.
c. As between you and Reviewshake, all rights, title and interest in and to the Service and its components will remain with and belong exclusively to Reviewshake. For clarity, Reviewshake is and shall be the sole owner of (a) any data reflecting access or the use of the Service by or on behalf of you or your authorized users and (b) information collected by Reviewshake by referencing Query Data or otherwise derived by processing Query Data, including without limitation any inferences, insights, or other predictive information or data that is sufficiently different from Query Data such that Query Data cannot be reverse engineered or otherwise identified from analysis or further processing (together with (a) “Reviewshake Data”), and you hereby assign to Reviewshake all right, title, and interest that you may have in the foregoing Reviewshake Data.
d. To the extent the Service or any portion thereof is made available for any fee, you are responsible for usage limits set forth in the applicable Order Form and/or self-service Subscription. Reviewshake reserves the right to bill overages, cancel your subscription, or revoke access if limits are not maintained. For use of the Service and the Software, without limiting the foregoing, you will access the Data solely on a transactional basis. You shall not (and shall not allow any third party to): present the Data so that it appears to be made available by any third party; or access the Data in bulk, redistribute, or resell the Data. Any individual Software-specific terms are additive to this TOS. Non-paying users of the Service are expressly forbidden from caching or otherwise storing the Data. Reviewshake grants unique authorization to use the API solely to develop, reproduce and distribute applications or implementations that interoperate with the API (each “Your Application”), and display any Data made available by Reviewshake through the API solely to end users via Your Application. Your end users are subject to the terms and conditions of this TOS. Reviewshake reserves the right to adjust limit the number and/or frequency of API requests in its sole discretion.
f. Any Software or data that may be made available by Reviewshake in connection with the Service contains proprietary and confidential information that is protected by applicable intellectual property and other laws. You agree not to access the Service by any means other than through the interface that is provided by Reviewshake for use in accessing the Service. Any rights not expressly granted herein are reserved and no license or right to use any trademark of Reviewshake.
g. Query Data. You hereby authorize and grant to Reviewshake a non-exclusive license to use, have used, store, process, transfer, reproduce, distribute, perform, display, and create derivative works of Query Data for the purpose of providing the Service. You represent and covenant that, prior to posting Query Data to the API, you have obtained all rights or licenses necessary to authorize Reviewshake’s processing of Query Data. “Query Data” means all data, customer contacts, information, text, content and other materials that you upload, provide or otherwise transmit (hereafter “post(ing)”) to or in connection with the Service, including without limitation any messages, contacts and other information stored your email accounts hosted by third party cloud services. As part the operation of the Service, Reviewshake’s processing of Query Data may involve (a) unencrypted transmissions over the Internet; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to Reviewshake’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Query Data. Reviewshake does not guarantee that the Service is or will remain secure or that access to the Service will be uninterrupted and Reviewshake will have no liability to you for any unauthorized access or use of any of Query Data, or any corruption, deletion, destruction or loss of any of Query Data.
i. Your Account. You are responsible for maintaining the confidentiality of your login, password and account and for all activities that occur under your login or account. You agree to (a) immediately notify Reviewshake of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Reviewshake reserves the right to access your account in order to respond to your requests for technical support Reviewshake has the right, but not the obligation, to monitor the Service or Query Data. You further agree that Reviewshake may remove or disable Query Data or any Data at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to the foregoing), or for no reason at all.
j. Equipment. You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). You shall be responsible for ensuring that such Equipment is compatible with the Services (and, to the extent applicable, the Software) and complies with all configurations and specifications set forth in Reviewshake’s published policies then in effect. You shall also be responsible for maintaining the security of the Equipment, your account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your account or the Equipment with or without your knowledge or consent.
k. Reviewshake reserves the right to use your name and/or Reviewshake name and logo/assets as a reference for marketing or promotional purposes on Reviewshake’s website and in other communication with existing or potential Reviewshake customers.
l. Subject to the terms hereof, Reviewshake may (but has no obligation to) provide technical support services, through email in accordance with our standard practice.
5. Payment. To the extent the Service or any portion thereof is made available for any fee, you will be required to select a Subscription through the self-service process on the Site and/or separately execute an Order Form and provide Reviewshake information regarding your credit card or other payment instrument. You represent and warrant to Reviewshake that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Reviewshake the amount that is specified in the payment plan in accordance with the self-service Subscription or Order Form and this TOS, including as set forth in Section 8. Subscriptions entered into through the Site or through an Order Form will auto-renew pursuant to the terms specified in Section 8 or as otherwise set forth in such Order Form. You hereby authorize Reviewshake to bill your payment instrument in advance monthly for self-service Subscriptions entered into through the Site or in accordance with the applicable Order Form and in accordance with the terms of the applicable payment plan referenced in the self-service Subscription or Order Form and this TOS, and you further agree to pay any charges so incurred. If you dispute any charges you must let Reviewshake know within thirty (30) days after the date that Reviewshake invoices you. We reserve the right to change Reviewshake’s prices. If Reviewshake does change prices, Reviewshake will provide notice of the change on the Site or in email to you, at Reviewshake’s option, at least fourteen (14) days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. Reviewshake may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Reviewshake thirty (30) days after the mailing date of the invoice, or the Services may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. You shall be responsible for all taxes associated with Services other than U.S. taxes based on Reviewshake’s net income.
6. Third Party Materials; Open Source.
a. Certain Service functionality may make available access to third party services or other third party resources made available by third parties ( “Third Party Materials”), or allow for the routing or transmission of such Third Party Materials, including via links. By using such functionality, you are directing us to access, route and transmit to you the applicable Third Party Materials. We neither control nor endorse, nor are we responsible for, any Third Party Materials, including the accuracy, integrity, quality, legality, usefulness or safety of Third Party Materials, or any intellectual property rights therein. Certain Third Party Materials may, among other things, be inaccurate, misleading or deceptive. Nothing in this Agreement shall be deemed to be a representation or warranty by Reviewshake with respect to any Third Party Materials. We have no obligation to monitor Third Party Materials, and we may block or disable access to any Third Party Materials (in whole or part) through the Service at any time. In addition, the availability of any Third Party Materials through the Service does not imply our endorsement of, or our affiliation with, any provider of such Third Party Materials, nor does such availability create any legal relationship between you and any such provider. YOUR USE OF THIRD PARTY MATERIALS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY MATERIALS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY MATERIALS).
b. The Services may be provided together with, or otherwise contain, certain open source software components ( “Open Source Components”) under their respective open source license agreements (“Open Source Licenses”). You acknowledge and agree to the terms and conditions in each such Open Source License and to comply with all such terms and conditions. With respect to each Open Source Component, to the extent there are any conflicts between any terms of this Agreement and any terms of the respective Open Source License, which the Open Source License does not permit, such conflicting terms of this Agreement will not apply. Any fees charged by Reviewshake in connection with the Services do not apply to any Open Source Components for which fees may not be charged under the applicable Open Source License. Where the terms of any specific Open Source License entitle you to the source code of the respective Open Source Component (if any), that source code may be made available from Reviewshake upon request (a nominal fee may be charged by Reviewshake for processing such request).
7. Representations and Warranties. You represent and warrant to Reviewshake that (i) you have full power and authority to enter into this TOS; (ii) you own all Query Data or have obtained all permissions, releases, rights or licenses required to engage in your posting and other activities (and allow Reviewshake to perform its obligations) in connection with the Services without obtaining any further releases or consents; (iii) Query Data, Your Application and other activities in connection with the Service, and Reviewshake’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, patent right, right of privacy or publicity, or other personal or proprietary right, nor does Query Data contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and (iv) you are eighteen (18) years of age or older.
8. Term; Termination.
a. The TOS becomes effective upon the date that you are first provided with use or access to the Services and remains in effect, (a) with respect to any free Service, until you uninstall or remove such free Service, (b) with respect to paid plans executed through self-service on the Site, for the term specified in your self-service Subscription, or if none is so specified, for one (1) calendar month following the date you are first provided with access, (c) with respect to separately executed Order Forms, for twelve (12) months or as otherwise set forth in such Order Form (the “Initial Term”) unless terminated earlier. Upon expiration, (a) with respect to paid plans executed through self-service on the Site, the Initial Term will automatically renew for successive one (1) calendar month periods, (b) with respect to separately executed Order Forms, the Initial Term will automatically renew upon expiration for successive twelve month (12) periods, unless either party provides the other with written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term or as otherwise set forth in an Order Form, (the Initial Term and any renewal terms collectively, the “Subscription Term”). You will be responsible for Subscription Fees through the end of your Subscription Term and no refunds will be issued if you terminate your Subscription prior to the expiration of your Subscription Term. If Reviewshake materially breaches this TOS, and does not cure such breach within thirty (30) days after receiving written notice from you of the breach, or Reviewshake makes a material change to this TOS that you do not accept, you have the right to terminate your Subscription via self-service on Reviewshake.com OR by sending a cancellation request to firstname.lastname@example.org. In addition, you may terminate for convenience your month-to-month Subscription via self-service on Reviewshake.com OR by sending a cancellation request to email@example.com, but you may not terminate for convenience the Services set forth in an Order Form submitted by you prior to the expiration of the Subscription Term set forth in the Order Form.
b. Without limiting Reviewshake’s other termination rights set forth in this TOS, Reviewshake may terminate or suspend your account and this TOS effective immediately upon notice to the administrative email address associated with your account if you violate any of the provisions of Section 4.a (the Rules of Conduct) or 4.e (Privacy Shield Compliance). In addition to any other remedies Reviewshake may have, Reviewshake may also terminate this TOS upon fourteen (14) days’ notice (or seven (7) days in the case of nonpayment) if you breach any of the terms or conditions of this TOS and, where capable of cure, such breach remains remained uncured for a period of thirty (30) days. Query Data on the Service (if any) may be permanently deleted by Reviewshake upon any termination or suspension of your account in its sole discretion. However, all accrued rights to payment and the terms of Sections 4-12 shall survive termination of this TOS. Reviewshake also reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof). Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of the Service, may be referred to appropriate law enforcement authorities. You agree that Reviewshake will not be liable to you or any third party for any termination of your access to the Service.
9. DISCLAIMER OF WARRANTIES. THE SERVICE AND ALL THIRD PARTY MATERIALS, INCLUDING WITHOUT LIMITATION THE SITE, API AND ANY DATA PROVIDED IN CONNECTION THEREWITH, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND REVIEWSHAKE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT REVIEWSHAKE DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE DATA OR RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM REVIEWSHAKE OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
10. LIMITATION OF LIABILITY.
a. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL REVIEWSHAKE AND ITS AFFILIATES AND THEIR RESPECTIVE OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “REVIEWSHAKE PARTIES”) BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST CONTENT OR DATA, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, THIRD PARTY MATERIALS OR THE TOS; (B) WITHOUT LIMITING THE FOREGOING, FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SERVICES OR ANY THIRD PARTY MATERIALS, INCLUDING FROM ANY VIRUS THAT MAY BE TRANSMITTED IN CONNECTION THEREWITH; OR (C) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN CONNECTION WITH THE SERVICES IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED U.S. DOLLARS ($100). THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THE TOS) ARE MADE FOR THE BENEFIT OF BOTH REVIEWSHAKE AND EACH OF THE OTHER REVIEWSHAKE PARTIES.
b. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, REVIEWSHAKE AND THE OTHER REVIEWSHAKE PARTIES’ LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
11. Indemnification. You shall defend, indemnify, and hold harmless Reviewshake and each of the other Reviewshake Parties from and against any actions, damages, obligations, losses, liabilities, demands or expenses, including without limitation reasonable legal and accounting fees, arising or resulting from, or in connection with: (i) your breach of any of the provisions of this TOS; (ii) any of Query Data; (iii) your violation of any third party right, including without limitation any right of privacy or intellectual property right (including without limitation violation of any intellectual property right by Query Data and Your Application, or Reviewshake’s use of the foregoing as contemplated by this TOS); (iii) any other party’s access and use of the Services with your unique username, password or other appropriate security code; (iv) Personal Data or any other data that is made available to Reviewshake via your account; (v) your violation of any applicable law, rule or regulation; or (vi) your other access, contribution to, use or misuse of the Service or Reviewshake Marks. Reviewshake shall provide notice to you of any such claim, suit or demand. Reviewshake reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests to assist Reviewshake’s defense of such matter.
12. Export Controls. You are responsible for complying with United States export controls, including as set forth above, and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
13. Assignment. Reviewshake may assign or transfer this TOS, in whole or in part, without consent or other restriction. You may not assign this TOS without the prior written consent of Reviewshake. Any attempted assignment other than as permitted in this Section will be null and void.
14. Information or Complaints. If you have a question or complaint regarding the Service, please send an e-mail to firstname.lastname@example.org. Please note that e-mail communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your e-mail correspondence with us.
15. Miscellaneous. If any provision of this TOS is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this TOS will otherwise remain in full force and effect and enforceable. Both parties agree that this TOS, together with any Order Form and/or self-service Subscription, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this TOS, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this TOS and you do not have any authority of any kind to bind Reviewshake in any respect whatsoever. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular will have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in this TOS will be construed as if followed by the phrase “without limitation.” Notices to you (including notices of changes to this Agreement) may be made via posting to the Site or by e-mail (including in each case via links), or by regular mail. All notices under this TOS if delivered in person, mailed or transmitted by email or fax will be treated as having been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Without limitation, a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Reviewshake will not be responsible for any failure to fulfill any obligation due to any cause beyond its control. In any action or proceeding to enforce rights under this TOS, the prevailing party will be entitled to recover costs and attorneys’ fees. This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and Reviewshake relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Reviewshake relating to such subject matter.
16. Governing Law. This TOS (including the arbitration provisions in Section 19) shall be governed by the laws of the United States (including federal arbitration law) and the State of Delaware without regard to the principles of conflicts of law. Unless otherwise elected by Reviewshake in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of Delaware for the purpose of resolving any dispute relating to your access to or use of the Service.
17. Arbitration; Class Action Waiver. EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THIS TOS, YOUR USE OF THE SERVICES AND ALL RELATED MATTERS, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY AND YOU AGREE THAT REVIEWSHAKE AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS TOS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ARBITRATION OR CLASS ACTION. The arbitration will be administered by the American Arbitration Association (the “AAA”) under (a) its Consumer Arbitration Rules (currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf) if you are a consumer or (b) its Commercial Arbitration Rules (currently available at https://www.adr.org/sites/default/files/Commercial%20Rules.pdf) if you are not a consumer, in each case as amended by this TOS. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. The arbitrator’s decision will follow the terms of this TOS and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this TOS, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in this TOS will preclude you from bringing issues to the attention of federal, state or local agencies and, if applicable law allows, they can seek relief against us for you. IF YOU ARE A CONSUMER AND DO NOT WANT TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MAY OPT OUT.