(Updated: October 13, 2017)
PLEASE BE AWARE THAT SECTION 11 OF THESE TERMS, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THESE TERMS. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THESE TERMS.
1 User Data
1.1. In order to guarantee the quality of the service provided via the Internet, it is essential that users provide the necessary and correct data when requested by PSafe. You represent and warrant that: (a) all information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. PSafe disclaims responsibility for the incorrect completion of information.
1.2. In order to use certain features of the Services, you may have to register for an account and provide any required registration information. Regarding the provision of data required for the user to register in PSafe’s system, if applicable:
1.2.1. PSafe may, at its sole discretion, not accept the registration of any user account and PSafe may suspend or terminate your account and/or refuse any and all current or future use of the Services (or any portion thereof) at any time for any reason. You agree that PSafe, nor its affiliates, suppliers or licensors, will be liable to you or to any third party for any rejection of registration of your account, suspension or termination of your account or any refusal of any use of the Services (or any portion thereof).
1.2.2. The truth and accuracy of the data provided by users is an essential requirement for maintaining your account.
1.2.3. It is prohibited for one person to have more than one account. If PSafe detects duplicate accounts, through the data verification system, both accounts will be permanently disabled.
1.2.4. Only registrations of those would-be users who fill out all the required information fields will be considered. The future user must complete the registration with accurate, precise and true information, assuming the commitment of updating their personal data whenever a change occurs.
1.2.5. PSafe disclaims responsibility for the truth and accuracy of data entered by its users. The users guarantee and are responsible for, in whatever case, the truthfulness and accuracy of registration data.
1.2.6. PSafe reserves the right to use all valid and possible means to identify its users, as well as to request additional data and documents it deems to be relevant in order to verify registration data.
1.2.7. The user shall access his account via e-mail and password and agrees not to share this information with third parties. The user is fully responsibility for any use made thereof.
1.2.8. The user agreed to immediately notify PSafe, through secure means, of any unauthorized use of his account, as well as any unauthorized access of the same by third parties. The user is solely responsible for all activities that occur under his account.
1.2.9. The transfer, sale, rent or any other form of account transfer is not permitted under any circumstances. It also is not permitted to maintain more than one account for the same person, or to create new accounts for people whose original accounts have been canceled.
5 Rights of PSafe
5.2. We reserve the right, at any time, to modify, suspend, or discontinue the Services (in whole or in part) with or without notice to you. You agree that neither PSafe, its affiliates, nor their licensors or suppliers will be liable to you or to any third party for any modification, suspension, or discontinuation of the Services or any part thereof.
5.3. You acknowledge and agree that we will have no obligation to provide you with any support or maintenance in connection with the Services. You understand that the Services are evolving. As a result, PSafe may require you to accept updates to Services. You acknowledge and agree that PSafe may update Services with or without notifying you.
5.4. As a part of Services, you may have access to materials that are hosted by another party. You agree that it is impossible for PSafe to monitor such materials and that you access these materials at your own risk.
6.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. PSAFE, ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS (“PSAFE PARTIES”) EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE PSAFE PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. THE PSAFE PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PSAFE OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
PSafe guarantees neither the location, even if approximate, of Android devices that have the DFNDR / PSafe DFNDR / DFNDR Security application installed, nor success in the search and location procedure. User acknowledges and agrees that the DFNDR / PSafe DFNDR / DFNDR Security application is an auxiliary tool and does not replace the procedures that the User should perform with law enforcement authorities, especially in case of robbery or theft of devices. On Android devices, the “Anti-Theft” features of the DFNDR / PSafe DFNDR / DFNDR Security application will not work if the respective application is not installed, updated, and active on the device. Even with these conditions, User acknowledges and agrees that the success of the “Anti-Theft” features depends on items under control of third-parties (including the User), that PSafe does not control or influence, such as (but not limited to): the device being powered on and/or with remaining battery power, an active connection between the device and the data network (including, in the case of paid networks, an active account with a positive balance linked to the device), and map data or other location information (which comes from third-party services) that may not be available in all areas or may contain incomplete or inaccurate data.
7 Intellectual Property
7.4. The Services may invite the user to participate in online forums, online messaging services or other features that could lead the user to create, post, submit, publish, transmit or distribute content including but not limited to text, photographs, graphics, drawings, comments, suggestions or other information (“Content”). The user acknowledges that he is solely responsible for all Content that he makes available, regardless of the tool, system or form of submission. Whenever a user creates, posts, submits, publishes, distributes or transmits content via the Services, or through Services that the user has access to due to the use or installation of the Services, you grant (and represent and warrant that you have the necessary rights to grant) to PSafe a non-exclusive, royalty-free, perpetual, irrevocable, worldwide, transferable and sublicensable right (including any moral rights) and license to use, copy, modify, adapt, distribute, store, host, publish, process, create derivative work or exploit in any way in whole or in part any media, software or way that is known or may come to exist hereafter, the Content you provide for the purposes of operating and providing the Services to you and to our other users without any other consent, notice and/or compensation for yourself or others. PSafe reserves the right in its sole discretion to remove any Content that you provide at any time for any reason. You agree that neither PSafe, nor its affiliates, suppliers or licensors will be liable to you or to any third party for such removal.
7.5 You agree that submission of any ideas, suggestions, documents, and/or proposals to PSafe, including through interactions with support, including through any instant-messaging tool or via email (“Feedback”) is at your own risk and that PSafe has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to PSafe a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights.
9 Limitation of Liability
9.2. UNDER NO CIRCUMSTANCES WILL THE PSAFE PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO PSAFE BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY AND (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES.THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A PSAFE PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A PSAFE PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A PSAFE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
9.3. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PSAFE AND YOU.
10 Use of Instant Messaging
10.1. PSafe may make available to the users of its Services an electronic tool that allows for the sending and receiving of instant messages between users and PSafe’s agents, which can be accessed by the user via the pages on the Websites in the “Help” section (when available) or through other means as PSafe determines from time to time. Through this tool, users can ask questions, request additional information and make requests and complaints regarding PSafe’s Services.
10.2. PSafe may provide the tool to facilitate contact between the user and PSafe, in order to improve the quality of the Services provided to users of the Services. However, PSafe reserves the right to terminate, at its sole discretion, any instant messaging session established between a user and a PSafe agent if the user acts inappropriately or in a manner not consistent with the purpose of the electronic tool, or shares any inappropriate or improper content with a PSafe agent. The user agrees that when using the instant messaging tool, all messages exchanged between the user and the PSafe agent will be stored on PSafe servers.
11 Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with PSafe and limits the manner in which you can seek relief from us.
Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Services, or to any aspect of your relationship with PSafe, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or PSafe may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).
IF YOU AGREE TO ARBITRATION WITH PSAFE, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST PSAFE ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST PSAFE IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to: PSafe Tecnologia S.A., Caixa Postal 11592, Avenida Nossa Senhora de Copacabana 540, Loja A, AC Copacabana, 22020-970, Rio De Janeiro, RJ, Brazil. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/ all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and PSafe. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
Waiver of Jury Trial. YOU AND PSAFE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and PSafe are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified herein. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER LICENSEE. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court as set forth herein.
Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with PSafe.
Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if PSafe makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to PSafe.
Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and PSafe agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in San Francisco, California.
12.1. You may not use, export, import, or transfer the Services except as authorized by applicable laws. You shall comply with these laws and regulations and shall not, without prior government authorization of the applicable government entity, export, re-export, or transfer the Services, either directly or indirectly, to any country in violation of such laws and regulations.
13.1. PSafe is located at the address set forth below. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
14 Electronic Communications.
14.1. The communications between you and PSafe use electronic means, whether you use the Websites or Services, use instant messaging functions on the Websites or send us emails, or whether PSafe posts notices on the Websites or communicates with you via email. For contractual purposes, you (a) consent to receive communications from PSafe in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that PSafe provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
16 Force Majeure
16.1. Neither PSafe nor its affiliates, suppliers or licensors will be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
17 Contact Information
PSafe Tecnologia S.A.
Caixa Postal 11592
Avenida Nossa Senhora de Copacabana 540, Loja A
Rio De Janeiro, RJ, Brazil