Last Updated: Aug. 10, 2020
Welcome to The Dipp!
TK Media Group Inc. d/b/a The Dipp (“The Dipp,” “we,” “us,” “our”) provides its services (described below) to you through its website located at www.thedipp.com (the “Site”) or other websites maintained by us, and through our related services (collectively, such services, including any new features and applications, and the Site, the “Service(s)”), subject to the following terms of service (as amended from time to time, the “Terms of Service”). We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, either through the Services user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THIS AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST THE DIPP ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
Access and Use of the Service
Services Description: The Service provides reviews of, news about, and information and other content related to TV and other forms of entertainment, including through a personalized Membership (defined below).
User Account, Password and Security: You may control your account and how you interact with the Services by changing the settings on your Settings page. When creating your account or uploading content to the Services through your account, you represent and warrant that you will provide accurate and complete information. You are expected to use “strong” passwords (passwords that use a combination of upper and lowercase letters, numbers and symbols) with your account. You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account, even if due to misuse or any unauthorized access. You must exercise caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. You understand and agree that your account is personal to you and you agree not to provide any other person with access to the Services using your username, password, or other security information. You also agree to ensure that you logout from your account at the end of each session. You agree to immediately notify The Dipp of any unauthorized use of your password or account or any other breach of security. The Dipp will not be liable for any loss or damage arising from your failure to comply with this Section.
Other Users: You are solely responsible for your interactions with other users of the Services. We shall have no liability for your interactions with other users of the Services, or for any user’s action or inaction. The Dipp shall have no obligation to you to enforce these Terms of Service or any other agreement against any other user of the Services. The Dipp reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
Modifications to Service: The Dipp reserves the right to suspend, limit, condition modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that The Dipp will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
General Practices Regarding Use and Storage: You acknowledge that The Dipp may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on The Dipp’s servers on your behalf. You agree that The Dipp has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that The Dipp reserves the right to terminate accounts or Memberships that are inactive for an extended period of time. You further acknowledge that The Dipp reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Mobile Services: The Service includes certain services that are available via a mobile device, including (i) the ability to upload content to the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device and (iii) if applicable, the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding the Services by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to The Dipp. In the event you change or deactivate your mobile telephone number, you agree to promptly update your account information to ensure that your messages are not sent to the person that acquires your old number.
Conditions of Use
User Conduct: You will not express or imply that any statements you make are endorsed by The Dipp. You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“content”) that you upload, post, publish or display (hereinafter, “upload”) or email or otherwise use via the Service. The following are examples of the kind of content and/or use that is illegal or prohibited by The Dipp. The Dipp reserves the right to investigate and take appropriate legal action against anyone who, in The Dipp’s sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account or Memberships of such violators and reporting you to the law enforcement authorities. You agree to not use the Service to:
a) email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; (vii) is false or misleading, or otherwise deceptive; (viii) is illegal or offensive; or (ix) in the sole judgment of The Dipp, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose The Dipp or its users to any harm or liability of any type;
b) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey or violate any requirements, procedures, policies or regulations of networks connected to the Service, or crack any passwords or security encryption codes;
c) violate any applicable law, or any regulations having the force of law;
d) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
e) harvest or collect email addresses or other contact information or personally identifiable information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
f) take any action that imposes, or may impose, as determined in our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
g) advertise or offer to sell or buy goods or services;
h) copy or store any significant portion of the Service Content;
i) monetize the Service Content through advertising, subscriptions or other means.
j) further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
k) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service, including by bypassing the measures we may use to prevent or restrict access to the Services or Service Content, including without limitation features that prevent or restrict use or copying of any Service Content or enforce limitations on use of the Services or the Service Content.
Membership: We offer access to Service Content and certain benefits to users of the Services that have signed up a subscription (a “Membership”, and such users, “Members”). We may offer different Membership tiers, and the access, benefits, special offers and fees may change over time as we operate the Membership program. Click here for information about Membership details. We reserve the right to modify, suspend or discontinue, temporarily or permanently, any Membership benefits or access from time to time with prior notice to you. Any Membership fees charged to you are non-refundable except as expressly set forth in these Terms of Service or the Membership page here. We reserve the right to accept or refuse Members in our discretion.
Membership Payment Plans: When you sign up for a Membership you will be required to select a Membership tier (including, if applicable, a free trial) and a payment plan as set forth here. You agree to pay The Dipp the amount that is specified in the payment plan in accordance with the terms of such plan and these Terms of Services. You hereby authorize The Dipp to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account or Membership, and you further agree to pay any charges so incurred. If you dispute any charges you must inform The Dipp by emailing us at email@example.com within thirty (30) days after the date that The Dipp charges you. We reserve the right to change fees for Memberships. If we do change fees for Memberships and you are a current Member, we will provide notice in an email to you at least thirty (30) days before the change is to take effect. Your continued use of the Services after the price change becomes effective constitutes your agreement to pay the changed amount. Members may cancel their Memberships any time by visiting your account and adjusting your Membership settings.
UNLESS YOU NOTIFY US BEFORE A CHARGE THAT YOU WANT TO CANCEL OR DO NOT WANT TO AUTO RENEW, YOU UNDERSTAND YOUR MEMBERSHIP WILL AUTOMATICALLY CONTINUE AND YOU AUTHORIZE US (WITHOUT NOTICE TO YOU, UNLESS REQUIRED BY APPLICABLE LAW) TO COLLECT THE THEN-APPLICABLE MEMBERSHIP FEE AND ANY TAXES, USING ANY ELIGIBLE PAYMENT METHOD WE HAVE ON RECORD FOR YOU.
Termination of Membership:
· If you decide not to renew your Membership pursuant to the procedure set out on Membership page here, or if you end your Membership during your applicable Membership term pursuant to the procedure set out on Membership page here, we will not renew your Membership at the end of such term.
· The Dipp reserves the right to terminate your Membership at our discretion without notice. If we do so, we will give you a prorated refund based on the time remaining in your applicable Membership.
· The Dipp will not give any refund for termination of a Membership related to conduct that we determine, in our discretion, violates these Terms of Service or any applicable law, involves fraud or misuse, or is harmful to our interests or another user.
When your Membership is terminated or expires, you may lose access to Service Content and certain benefits that was provided under your previous applicable Membership terms. You may have the option of deleting or deactivating your account at the end of such Membership term. User Content (as defined below) that you posted on or to the Service may still be made available and viewable on the Service.
Special Notice for International Use; Export Controls: Software (defined below) which may be available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content. The Services may not be used or otherwise provided or made available, either directly or indirectly, (a) in Cuba, Iran, North Korea, Syria, Crimea region of Ukraine, or any other country subject to U.S. trade sanctions, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Table of Denial Orders. You agree to the foregoing and represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list and that you will not share the Services with anyone whose status is described in items (a) or (b) above.
Commercial Use: Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. The Service is solely for your personal, non-commercial use.
Intellectual Property Rights
Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content or features, including articles and other works (“Service Content”), that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. We do not guarantee that any Service Content you access on or through the Site is or will continue to be accurate. The Content is protected by United States and foreign intellectual property laws. Unauthorized use of the Service Content may result in violation of copyright, trademark, and other laws. You have no rights in or to the Service Content, and you will not use, copy or display the Service Content, including but not limited to use of framing or mirrors, except as permitted under these Terms of Service. No other use is permitted without our prior written consent, and any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. You must retain all copyright and other proprietary notices contained in the original Service Content on any copy you make of the Service Content. You may not sell, transfer, assign, license, sublicense, or modify the Service Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Service Content in any way for any public or commercial purpose (except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service). In particular, audio or video content on the Services not explicitly indicated as downloadable may not be downloaded or copied from the Services. The use or posting of any of the Service Content on any other website or in a networked computer environment for any purpose is expressly prohibited. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by The Dipp from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address).
The technology and software underlying the Service, including any applications or proprietary technology embodied in The Dipp’s software or distributed in connection therewith (the “Software”) are the property of The Dipp, our affiliates and our partners. You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by The Dipp.
The Dipp name and logos are trademarks and service marks of The Dipp (collectively the “The Dipp Trademarks”). Other company, product, and service names and logos which may be used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to The Dipp. Nothing in these Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of The Dipp Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of The Dipp Trademarks will inure to our exclusive benefit.
Third Party Material: Under no circumstances will The Dipp be liable in any way for any content or materials of any third parties (including other users), including, but not limited to, for any errors or omissions in any content, for the quality or legality thereof, or for any loss or damage of any kind incurred as a result of the use of any such content. The Dipp does not review or endorse any content or materials of any third parties. You acknowledge that The Dipp does not pre-screen content, but that The Dipp will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, legality, quality, or usefulness of such content.
User Content Transmitted Through the Service: With respect to the content data, information or other materials you upload through the Service or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading (or permitting The Dipp to upload) any User Content you (i) hereby authorize The Dipp and its third-party service providers to derive statistical and usage data relating to your use of the Service and (ii) hereby grant The Dipp and its affiliated companies a nonexclusive, worldwide, royalty-free, fully paid up, transferable, sublicensable (directly and indirectly through multiple tiers), perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content, and any statistical and usage data relating to your use of the Service derived by The Dipp or its third-party service providers, in connection with (a) the improvement and operation of the Service, (b) the development and provision of new products and services, or (c) the marketing or promotion of any of the foregoing, in each case in any form, medium or technology now known or later developed. You represent and warrant that any authorized use of your User Content by The Dipp does and will not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and other intellectual property rights. You shall be solely responsible for your User Content and the consequences of posting, providing or publishing it. All User Content may be viewable by third parties (including other users of the Services), so do not include any sensitive or confidential information therein. You acknowledge and agree that we may, with no liability or penalty, remove or refuse to post any User Content, communication or information uploaded or communicated, which in the sole judgment of The Dipp, violates or may violate these Terms of Service, applicable law or third party terms; may adversely affect The Dipp; or is false, inaccurate, misleading, deceptive, fraudulent, libelous, defamatory, immoral, offensive, obscene, pornographic, disruptive, inappropriate, threatening, abusive or illegal; or which may violate or lead to the violation of the rights of, or harms or threatens the safety and privacy of any third party, or create liability for us.
The Service also may pull content from our users who share photos, videos or other posts on social media and social networking services like Instagram, TikTok, Facebook or Twitter (“Social Media Sites”) tagging our accounts or handles on Social Media Sites (including the @thedipp Instagram account) (collectively, “Photos”). All such Photos are considered User Content. You acknowledge and agree that the Photos may be posted on the Site, and you hereby grant The Dipp permission to use and authorize others to use your name or social media handle in association with the Photos for identification, publicity related to the Site and/or Services and similar promotional purposes.
We also have the right to take legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Site or the Services. Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Site. YOU WAIVE AND HOLD HARMLESS THE DIPP AND ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, AND EMPLOYEES, FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY ALL SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to The Dipp are non-confidential and The Dipp will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that The Dipp may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of The Dipp, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
Copyright Complaints: The Dipp respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify The Dipp of your infringement claim in accordance with the procedure set forth below.
The Dipp will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to The Dipp’s Copyright Agent at firstname.lastname@example.org (Subject line: “DMCA Takedown Request”). You may also contact us by mail at: TK Media Group Inc., d/b/a/ The Dipp, P.O. Box 310424, Brooklyn, NY 11231
To be effective, the notification must be in writing and contain the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Counter-Notice: If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
- your physical or electronic signature;
- identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within New York, New York and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, The Dipp will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at our sole discretion.
Repeat Infringer Policy: In accordance with the DMCA and other applicable law, The Dipp has adopted a policy of terminating, in appropriate circumstances and at The Dipp’s sole discretion, users who are deemed to be repeat infringers. The Dipp may also at its sole discretion limit access to the Service and/or terminate the Memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Third Party Websites
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. The Dipp has no control over such sites and resources and The Dipp is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that The Dipp will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that Company is not liable for any loss or claim that you may have against any such third party.
Social Media Sites
In addition, The Dipp is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Media Sites. As such, The Dipp is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Media Sites. The Dipp enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
Indemnity and Release
You agree to release, indemnify and hold The Dipp and its affiliates and its and their officers, employees, directors, service providers, licensors, and agents (collectively, “Indemnitees”) harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages or expenses incurred as a result of any action or inaction of such Indemnitee. If you are a California resident, you waive California Civil Code Section 1542, which says: “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 settlement with the debtor or releasing party.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE DIPP EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
THE DIPP MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) ANY CONTENT PROVIDED THROUGH THE SERVICES IS ACCURATE, LEGALLY COMPLIANT, UP-TO-DATE, RELIABLE OR CORRECT, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE DIPP WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE DIPP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE OR ANY CONTENT OR COMMUNICATION OF A THIRD PARTY OR OTHER USER OF THIS SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL THE DIPP’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID THE DIPP IN THE LAST SIX (6) MONTHS (IF AT ALL), OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
Dispute Resolution By Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
a. Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in these Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and The Dipp, whether arising out of or relating to these Terms of Service (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms of Service, you and The Dipp are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
b. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND THE DIPP AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND THE DIPP AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
c. Pre-Arbitration Dispute Resolution
The Dipp is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing The Dipp’s customer support at email@example.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to The Dipp should be sent to TK Media Group Inc., d/b/a/ The Dipp, P.O. Box 310424, Brooklyn, NY 11231 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If The Dipp and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or The Dipp may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by The Dipp or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or The Dipp is entitled.
d. Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless The Dipp and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, The Dipp agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
e. Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, The Dipp will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, The Dipp will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, The Dipp will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms of Service will continue to apply.
h. Future Changes to Arbitration Agreement
Notwithstanding any provision in these Terms of Service to the contrary, The Dipp agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending The Dipp written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
You agree that The Dipp, in its sole discretion, may suspend, limit, condition or terminate your account, Membership or use of the Service or any feature or function thereof and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if The Dipp believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service or Membership, may be referred to appropriate law enforcement authorities. The Dipp may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that, except as may be explicitly set forth herein, any termination of your access to the Service or Membership under any provision of these Terms of Service may be effected without prior notice, and acknowledge and agree that The Dipp may immediately deactivate or delete your account or Membership and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that The Dipp will not be liable to you or any third party for any termination of your access to the Service or your Membership (except as may be explicitly set forth herein).
These Terms of Service constitute the entire agreement between you and The Dipp and govern your use of the Service, superseding any prior agreements between you and The Dipp with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms of Service will be governed by the laws of the State of New York without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and The Dipp agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within New York, New York. The failure of The Dipp to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will 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. You may not assign these Terms of Service without the prior written consent of The Dipp, but The Dipp may assign or transfer these Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.
Notice for California Users
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at:
TK Media Group Inc., d/b/a/ The Dipp
P.O. Box 310424
Brooklyn, NY 11231
Questions? Concerns? Suggestions?
Please contact us at firstname.lastname@example.org to report any violations of these Terms of Service or to pose any questions regarding these Terms of Service or the Service.