Effective date: Oct 9, 2023
Please read these Terms carefully. They cover important information about the Services provided to you and any charges, taxes, and fees for which we bill you. These Terms include information about future changes, automatic renewals, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO THE SERVICES ARE SUBJECT TO ALL OF THE TERMS HEREIN. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
1. Will these Terms ever change?
We are constantly trying to improve our Products and Services, so these Terms may need to change accordingly. We reserve the right to change the Terms at any time, but if we do, we will place a notice on our site located at https://www.therounds.co, send you an email, and/or notify you by other electronic means.
If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes. Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both parties.
2. What are the basics of using The Rounds?
You may be required to sign up for an account, select a password and user name (“The Rounds User ID”), and provide us with certain information or data, such as your contact information. You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your The Rounds User ID a name that you do not have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
Additionally, you may be able to access certain parts or features of the Services by using your account credentials from other services (each, a “Third Party Account”), such as those offered by, e.g., Google. By using the Services through a Third Party Account, you permit us to access certain information from such account for use by the Services. You are ultimately in control of how much information is accessible to us and may exercise such control by adjusting your privacy settings on your Third Party Account.
You represent and warrant that you are an individual of legal age to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Services and have gotten your parent or guardian to agree to these Terms on your behalf). If you’re agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization’s or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).
You will only use the Products you obtain and the Services for your own internal, personal, non-commercial use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Services or Products is prohibited by applicable laws, then you aren’t authorized to use the Services or any Products. We are not responsible for your using the Services or Products in a way that violates the law.
You will not share your The Rounds User ID, account or password with anyone, and you must protect the security of your The Rounds User ID, account, password and any other access tools or credentials. You’re responsible for any activity associated with your The Rounds User ID and account.
3. What about my privacy?
4. What about messaging?
As part of the Services, you may receive communications through the Services, including messages that The Rounds sends you (for example, via email, SMS or push notification). If you’ve given us your email address, we may send you promotional email offers on behalf of other businesses, or email you about your use of the Services. Also, we may receive a confirmation when you open an email from us. This confirmation helps us make our communications with you more interesting and improve our services. If you do not want to receive communications from us, you may unsubscribe from such communications in the email you received, or you can email us at firstname.lastname@example.org. When signing up for the Services, you will receive a welcome message and instructions on how to stop receiving messages. By signing up for the Services and providing us with your wireless number, you confirm that you want The Rounds to send you information regarding your account or transactions with us, including but not limited to delivery confirmations, as well as other information that we think may be of interest to you, which may include The Rounds using automated dialing technology to text you at the wireless number you provided, and you agree to receive communications from The Rounds, and you represent and warrant that each person you register for the Services or for whom you provide a wireless phone number has consented to receive communications from The Rounds. You can opt-out of text communications at any time by replying STOP. You agree to indemnify and hold The Rounds harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to your breach of the foregoing.
5. Are there restrictions in how I can use the Services?
You represent, warrant, and agree that you will not contribute any Content or User Submission (each of those terms is defined below) or otherwise use the Services or interact with the Services in a manner that:
- infringes or violates the intellectual property rights or any other rights of anyone else (including The Rounds);
- violates any law or regulation, including, without limitation, any applicable export control laws, privacy laws or any other purpose not reasonably intended by The Rounds;
- is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
- jeopardizes the security of your The Rounds User ID, account or anyone else’s (such as allowing someone else to log in to the Services as you);
- attempts, in any manner, to obtain the password, account, or other security information from any other user;
- violates the security of any computer network, or cracks any passwords or security encryption codes;
- runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
- “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
- copies or stores any significant portion of the Content; or
- decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
6. What are my rights in the Services?
You understand that The Rounds owns the Services and all right, title and interest in and to the Services (including all intellectual property rights. The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including The Rounds’s rights.
Subject to these Terms, we grant each user of the Services a worldwide, revocable, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for any other purpose is expressly prohibited without our prior written consent.). You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services. The Services may allow you to copy or download certain Content, but please remember that even where these functionalities exist, all the restrictions in this section still apply.
You can submit questions, comments, suggestions, ideas, original or creative materials or other evaluation data, information, reports and feedback about The Rounds, the Services, and/or the Products (collectively, “Feedback”). Feedback shall become our sole property and you agree to and hereby do assign any and all rights in such Feedback to us (including all intellectual property rights) and we shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without compensation or attribution to you.
7. What about anything I submit or contribute to the Services?
Certain features of the Services allow you to share information with others, including through your social networks or other Third Party Accounts services where you have an account (“Third Party Accounts”). When Content is authorized for sharing, we will clearly identify the Content you are authorized to redistribute and the ways you may redistribute it, usually by providing a “share” button on or near the Content. If you share information from the Services with others through your Third Party Accounts, such as your social networks, you authorize The Rounds to share that information with the applicable Third Party Account provider. Please review the policies of any Third Party Account providers you share information with or through for additional information about how they may use your information. If you redistribute Content, you must be able to edit or delete any Content you redistribute, and you must edit or delete it promptly upon our request.
8. Who is responsible for what I see and do on the Services?
Any information or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such Content originated, and you access all such information and Content at your own risk, and we aren’t liable for any errors or omissions in that information or Content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services. The Services may contain links or connections to third-party websites or services that are not owned or controlled by The Rounds. When you access third-party websites or use third-party services, you accept that there are risks in doing so, and that The Rounds is not responsible for such risks.
Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that The Rounds shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between participants on this site or Services, or between users and any third party, you agree that The Rounds is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release The Rounds, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. You shall and hereby do waive California Civil Code Section 1542 or any similar law of any jurisdiction, which says in substance: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
9. Will The Rounds ever change the Services, or the Products it offers through the Services?
We’re always trying to improve our Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical. We reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
Our Product offerings are subject to change without notice, and subject to availability. The inclusion of any Products on the Services at a particular time does not imply or warrant that they will be available at any time. We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any Product on the Services, or limit its availability to certain geographies; to bar any user from making any or all purchases; or to refuse to provide any user with any Product. Additionally, we reserve the right to substitute Products (including specific ingredients or entire items) without prior notice. We strive to provide you with high-quality Products, and given the perishable nature of certain Products and market conditions beyond our control, we may be required to make substitutions from time to time. If you have any questions about a particular Product, or you have questions about delivery, returns, or refunds, please contact us at email@example.com.
We may also provide the Services to connect you with independent merchants that provide various food and beverage Products (this will be indicated directly in the Services) (each, a “Marketplace Product”). For Marketplace Products, you understand that The Rounds is not the merchant and has no responsibility or liability for the acts or omissions of Marketplace Product merchants (each, a “Merchant”) (including with respect to food preparation, handling and safety, and whether various information describing the Marketplace Products is accurate (e.g., photographs, images, menu or product listings or information (such as nutrition, ingredient, and/or allergen information)). We do not independently verify compliance with applicable laws or regulations by any Merchants. You agree that Marketplace Products are prepared by the Merchant and that title to these Marketplace Products passes from the Merchant to you at the Merchant’s location. The Rounds does not hold title to or acquire any ownership interest in any Marketplace Products at any time. Marketplace Products may also be subject to any additional terms and conditions set forth within the Services and presented to you prior to your purchase.
10. Do the Services cost anything?
We may charge a fee for using the Services. If you are using a free version of the Services, we will notify you before any Services you are then using begin carrying a fee, and if you wish to continue using such Services, you must pay all applicable fees for such Services. Products are offered at the prices set forth at https://www.therounds.co. The prices displayed are quoted in U.S. currency and are valid only in the United States. Such prices may not include any delivery charges, or taxes, which will be noted in the payment terms presented to you during the checkout process. Our returns and refunds policy is located at https://www.therounds.co. Prices are subject to change at any time. Sales tax will be determined by the delivery address of the order and will automatically be added to the order. The Rounds is required by law to apply sales tax to orders to certain states.
Information about our delivery rates, return policy and the Products can all be found at https://www.therounds.co. Any payment terms presented to you in the process of purchasing Products are deemed part of these Terms. The placement of an order following a price or fee change constitutes your acceptance of the new prices and/or fees. Note that if you elect to receive text messages through the Services, data and message rates may apply. Any and all such charges, fees or costs are your sole responsibility. You should consult with your wireless carrier to determine what rates, charges, fees or costs may apply to your use of the Services.
For Marketplace Products, your use of the Services may result in charges to you from the applicable Merchant (“Marketplace Product Charges”). Prices that are displayed to you for these Marketplace Products within the Services may be inclusive of retail prices charged by the Merchant and fees paid to us. We will enable your payment of any Marketplace Product Charges, which will include applicable taxes where required by law. These charges will be owed directly to the applicable Merchant, we will collect payment from you on their behalf as their limited payment collection agent, and payment of the Marketplace Product Charges will be considered the same as payment made directly by you to the Merchant.
(c) Payment Method
The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
(d) Recurring Billing
Some of the Products may be sold as a subscription, consisting of an initial period for which there is a one-time charge, followed by recurring period charges for additional Products as agreed to by you (“Paid Subscription”). By choosing a Paid Subscription, you acknowledge that such Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, GO TO ACCOUNT SETTINGS AT https://www.therounds.co.
(e) Current Information Required
YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT ACCOUNT SETTINGS AT HTTPS://WWW.THEROUNDS.CO. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SUBSCRIPTIONS UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SUBSCRIPTIONS AS SET FORTH ABOVE.
(f) Change in Amount Authorized
If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges, including during or at the end of each billing cycle.
(g) Auto-Renewal for Paid Subscriptions
Unless you terminate your subscription, which can be done through your account settings, any Paid Subscription(s) you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. To change or resign your Paid Subscription(s) at any time, go to account settings at https://www.therounds.co. If you terminate a Paid Subscription, you may use your subscription until the end of your then-current term, and your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. IF YOU DO NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING MONTHLY BASIS, YOU MUST CANCEL THE APPLICABLE PAID SUBSCRIPTION THROUGH YOUR ACCOUNT SETTINGS AT HTTPS://WWW.THEROUNDS.CO OR TERMINATE YOUR THE ROUNDS ACCOUNT BEFORE THE END OF THE RECURRING TERM. PAID SUBSCRIPTIONS CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, THE ROUNDS WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID.
(h) Reaffirmation of Authorization
Your non-termination or continued use of a Paid Subscription reaffirms that we are authorized to charge your Payment Method for that Paid Subscription. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Paid Subscription.
(i) Free Trials and Other Promotions
Any free trial or other promotion that provides access to free Products or free Paid Subscriptions must be used within the specified time of the trial. You must stop using a Paid Subscription before the end of the trial period in order to avoid being charged for that Paid Subscription. If you cancel prior to the end of the trial period and are inadvertently charged for a Paid Subscription, please contact us at firstname.lastname@example.org.
11. What if I want to stop using the Services?
If you have deleted your account by mistake, contact us immediately at email@example.com – we will try to help, but unfortunately, we can’t promise that we can recover or restore anything.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the arbitration agreement.
12. What about Mobile Applications?
You acknowledge and agree that the availability of our mobile application is dependent on the third party stores from which you download the application, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). Each App Store may have its own terms and conditions to which you must agree before downloading mobile applications from such store, including the specific terms relating to Apple App Store set forth below. You agree to comply with, and your license to use our application is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply. For example, for our iOS application (the “Application”) available via the Apple, Inc. (“Apple”) App Store, the following additional terms also apply to the Application:
- Both you and The Rounds acknowledge that the Terms are concluded between you and The Rounds only, and not with Apple, and that Apple is not responsible for the Application or the Content;
- The Application is licensed to you on a limited, non-exclusive, non-transferrable, non sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
- You will only use the Application in connection with an Apple device that you own or control;
- You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
- In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
- You acknowledge and agree that The Rounds, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
- You acknowledge and agree that, in the event of any third-party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, The Rounds, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
- You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
- Both you and The Rounds acknowledge and agree that, in your use of the Application, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and
- Both you and The Rounds acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
13. Can I refer other users?
From time to time The Rounds may offer rewards or incentives for referring others to the Services. For details of any current referral offers, please contact us at firstname.lastname@example.org. The referring user (“Referrer”) may refer individuals or entities who are neither current customers of The Rounds nor registered users of the Services (each, a “Referee”). A registered user is a person or entity that already has an existing account with The Rounds. The number of referrals that the Referrer can make, and the rewards and/or incentives that the Referrer may receive through such special offer (cumulative or otherwise), may be limited and subject to additional terms and conditions presented to you at the time of the offer. Referrer will receive the stated reward or incentive for each Referee sent by the Referrer that completes the required action described in that specific offer (such as signing up for an account or making a purchase). Rewards and incentives are subject to any expiration dates as indicated by The Rounds. All Referees must be first-time recipients of the offer, and multiple referrals to the same individual or entity will be disregarded. The Rounds reserves the right to modify or terminate any special offers at any time and to revoke from Referrer and Referee the special offer at The Rounds’s discretion for any reason or for no reason whatsoever. If The Rounds determines that Referrer or Referee is attempting to obtain unfair advantage or otherwise violate the terms or spirit of such special offer, The Rounds reserves the right to (a) revoke any rewards or incentives issued to either Referrer or Referee and/or (b) charge the Referrer or Referee for any rewards or incentives (1) used by Referrer or Referee prior to such revocation or (2) issued by The Rounds to any ineligible Referrer or Referee. All special offers are subject to any other terms, conditions and restrictions set forth on the Services or presented in connection with the special offer.
14. What else do I need to know to have my order delivered?
You must provide us with accurate delivery address information so that we can timely deliver Products to you. You are responsible for providing us with accurate address information for deliveries and for keeping the delivery information for your account up-to-date. If you provide us with an address that is invalid or where we cannot securely deliver Products, if you fail to provide or facilitate access to your address, or if you do not keep your address information up-to-date, you are solely responsible for any resulting non-delivery, loss, theft, or damage to the Products, and will not be entitled to any refunds, rebates, credits, or other amounts relating to the foregoing. In the event The Rounds needs to make a change to an order, it will attempt to notify you by contacting the email address, billing address, and/or phone number provided at the time the order was made. Purchased Products will be delivered to the delivery address of the order.
By registering an account and placing an order for Products or purchasing a Paid Subscription, you agree to grant to The Rounds and its employees, agents and Couriers (as defined below) the right to access, enter upon and use the delivery address you have designated and the contents thereof and the appurtenances thereto to provide the Services. Further, you acknowledge and agree that timely provision to The Rounds and its employees, agents and Couriers of these rights, as well as sufficient access to your address and necessary appurtenances and other necessary assistance and cooperation is essential to the performance of the Services, and that The Rounds shall not be liable for any deficiency in performing the Services if such deficiency results from your failure to provide full and timely cooperation and assistance, or any refunds, rebates, credits, or other amounts relating to the foregoing.
The Rounds may from time to time engage third-party couriers (“Couriers”) to facilitate delivery of Products. Couriers are independent contractors and not employees, partners, agents, joint ventures, or franchisees of The Rounds. The Rounds shall not be liable or responsible for any delivery services provided by Couriers, or any errors or misrepresentations made by any of them. By agreeing to have Products delivered by Courier, you agree to bear responsibility for receipt of Products delivered to your designated delivery location. You hereby acknowledge that The Rounds does not supervise, direct, control, or monitor a Courier’s provision of services. Any interactions or disputes between you and a Courier are solely between you and that Courier. The Rounds and its licensors shall have no liability, obligation or responsibility for any interaction between you and any Courier.
15. Disclaimer and Limitation of Liability
(a) Warranty Disclaimer
THE SERVICES, PRODUCTS AND CONTENT ARE PROVIDED BY THE ROUNDS (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. ANY MARKETPLACE PRODUCTS PURCHASED BY YOU THROUGH THE SERVICES ARE NOT OUR PRODUCTS, AND WE DISCLAIM ANY AND ALL WARRANTIES RELATED TO SUCH PRODUCTS. EACH MARKETPLACE PRODUCT PROVIDER IS FULLY RESPONSIBLE FOR THE MARKETPLACE PRODUCTS SOLD THROUGH THE SERVICES. YOU WAIVE AND RELEASE US FROM ANY AND ALL INJURIES, DAMAGES, CLAIMS, LIABILITIES, AND COSTS SUCH MARKETPLACE PRODUCTS MAY CAUSE YOU TO SUFFER ARISING FROM OR RELATED TO ANY ACT OR OMISSION OF ANY MARKETPLACE PRODUCT PROVIDER IN CONNECTION WITH SUCH MARKETPLACE PRODUCT PROVIDER’S PRODUCTS. WE ARE NOT RESPONSIBLE FOR EXAMINING OR EVALUATING, AND WE DO NOT WARRANT THE OFFERINGS OF ANY THIRD PARTY OR ANY MARKETPLACE PRODUCTS. WE DO NOT ASSUME ANY RESPONSIBILITY OR LIABILITY FOR THE ACTIONS, PRODUCTS AND CONTENT OF MARKETPLACE PRODUCT PROVIDERS OR ANY OTHER THIRD PARTIES. TO THE EXTENT ALLOWED BY APPLICABLE LAW, YOUR PURCHASE AND USE OF ALL PRODUCTS IS SOLELY AT YOUR OWN RISK.
(b) Limitation of Liability
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL THE ROUNDS OR ITS LICENSORS, SUPPLIERS, PARTNERS, PARENT, SUBSIDIARIES OR AFFILIATED ENTITIES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, CONSULTANTS, CONTRACT EMPLOYEES, REPRESENTATIVES AND AGENTS, AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (THE ROUNDS AND ALL SUCH PARTIES TOGETHER, THE “THE ROUNDS PARTIES”) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE-HUNDRED ($100) DOLLARS OR (II) THE AMOUNTS PAID AND/OR PAYABLE BY YOU TO THE ROUNDS IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
You agree to indemnify and hold the The Rounds Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) your use of the Services (including any actions taken by a third party using your account) and any Products, and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
17. Choice of Law
These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of Delaware, without regard to the conflicts of laws provisions thereof.
18. Arbitration Agreement
Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with The Rounds and limits the manner in which you can seek relief from The Rounds. Both you and The Rounds acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, The Rounds’s officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
- Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in New Castle County, Delaware. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
- Costs of Arbitration. The Rules will govern payment of all arbitration fees. The Rounds will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. The Rounds will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
- Small Claims Court; Infringement. Either you or The Rounds may assert claims, if they qualify, in small claims court in New Castle County, Delaware or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
- Waiver of Jury Trial. YOU AND The Rounds WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and The Rounds are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and The Rounds over whether to vacate or enforce an arbitration award, YOU AND THE ROUNDS WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor The Rounds is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
- Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: 55 Washington St., Unit 415, Brooklyn, New York 11201, postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement.
- Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or The Rounds to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and The Rounds agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, New Castle County, Delaware, or the federal district in which that county falls.
- Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void.
- Survival. This arbitration agreement will survive the termination of your relationship with The Rounds.
You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without The Rounds’ prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and The Rounds agree that these Terms are the complete and exclusive statement of the mutual understanding between you and The Rounds, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of The Rounds, and you do not have any authority of any kind to bind The Rounds in any respect whatsoever. Except as expressly set forth in the sections above regarding App Stores and the arbitration agreement, you and The Rounds agree there are no third-party beneficiaries intended under these Terms. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that The Rounds may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder.