Terms of Service

Effective as of 01.05.2021.

 

Welcome to Amelia, appointments, and events booking plugin for WordPress.

Amelia, Service, and the Website (as defined below) are owned and operated by Touch Me Soft doo, Milutina Milankovica street no. 11B, Belgrade, Serbia (“TMS“).

Amelia is a WordPress plugin released under the GPLv.2 license and the use of such software is governed by the GPLv.2 license. 

These Terms of Use (“TOU“) govern your use of the Service and the Website (as defined below). By purchasing one of the plans offered on our Website, you enter into a legally binding contract with TMS and you agree to these Terms of Use, Privacy Policy, and Cookie Policy, including any supplemental terms that accompany the Service, any documents, and any linked terms in the Terms of Use (such as the Price Plan). Therefore, please pay attention to these Terms of Use and other information displayed on the Website. 

Upon payment you will receive an instant download link, an invoice to your inbox, and access to our online store where you will be able to download the plugin, use the Service and decide on your subscription (for example, terminate the subscription). 

If you find anything you do not agree in the TOU, please stop using the Service and the Website immediately. If you have any questions, please let us know via [email protected]

 

1. DEFINITIONS 

When we say “Agreement” we mean the contract comprising these Terms of Use (as amended from time to time in accordance with Section 4), Privacy PolicyCookie PolicyPrice Plan, and any supplemental terms that accompany the Service and any terms linked in this document.

When we say “Amelia” or “Software“, we refer to the appointments and events booking plugin for WordPress, and its updates, upgrades, enhancements, modifications, extensions, new features, now existing or later developed, released under GPLv.2 license, unless explicitly stated otherwise either in the download page or by the attached License.txt file.

When we say “Content” we mean all TMS’s features and technical resources available to Users, including but not limited to information, data, text, photographs, videos, audio clips, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Website.

When we say “Enterprise” we mean a User which is a legal entity.

When we say “Intellectual Property Rights” we mean any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or another intellectual property right, and all similar or equivalent rights or forms of protection, in any part of the world.

When we say “Party” or “Parties” we refer to TMS and/or User.

When we say “Price Plan” we refer to the description of Services for each subscription level, available here.  Please note that Price Plans differ in terms of the number of domains on which you can use the license, the scope of the Service, and/or available features. Please note that it is at our discretion to decide which Price Plan includes which feature, as well as which feature will be included in the upgrade.

When we say “Privacy Policy” we refer to TMS’s personal data protection policy available here.

When we say “Service” we mean the User support service and/or any updates and upgrades of the Software during the subscription period in accordance with the chosen Price Plan unless agreed otherwise.

When we say “User“, “You” or “you” we mean a user who installs a full copy of the Software and subscribes to the Service.

When we say “we” or “us “, we are referring to TMS.

When we say “Website” we mean individually or collectively the websites located at https://wpamelia.com/ and https://tmsplugins.ticksy.com/ 

 

2. WHO CAN USE OUR SERVICE?

The Service is solely intended for those who have full legal capacity.

If you are a natural person, you need to be at the age of majority (legal age) to be able to use the Service. Legal age depends on the national legislation applicable to the User (probably you need to be 18 years old). By using the Service, you represent that you are of legal age. If you are not at the required age, please stop using the Service immediately.

If you are using the Service as a natural person for a purpose unrelated to trade, business, or profession and wish to rely on consumer protection legislation, you need to notify TMS before you start using the Service and before subscribing to any plan. In the event a User fails to send such notification to TMS, the User will not be able to rely on any applicable consumer law and will not be able to invoke any consumer rights (including the right to withdraw from the Agreement).

If you are an individual User, or are accessing the Service or Software, or are otherwise browsing the Website, this Agreement is between you, individually, and TMS.

If you enter this Agreement on behalf of Enterprise, you warrant that:

(1) You have the full legal authority to bind the Enterprise to TOU;

(2) You have read and understood the TOU;

(3) You agree to TOU on behalf of the Enterprise that you represent.

 

Please note that, if you subscribe to the Service with an email address from the Enterprise (containing corporate email domain), you will be deemed to represent such Party and the word “User” or “You” in these TOU will refer to such Enterprise. The Enterprise represents and acknowledges that, unless TMS is otherwise explicitly notified, anyone accessing Enterprise’s account is authorized to act on behalf of the Enterprise, and that Enterprise remains liable for any act or omission in connection with such use. In this case, Enterprise and the individual who subscribed on behalf of the Enterprise are jointly responsible for the use of the Service and Software. 

If You subscribe to the Service with a personal email address and there is no formal affiliation to an Enterprise, You will be deemed User and not the Enterprise.

 

3. CONSENTING TO THE AGREEMENT AND THE SERVICE

3.1 WHEN DO YOU CONSENT TO THE AGREEMENT?

User shall be bound by this Agreement in any of the following situations, whichever occurs first:

  • (1) In the part of the Agreement that refers to the use of the Website while browsing the Website 
  • (2) In the part of the Agreement that refers to the use of the Service when you mark “I accept Terms of Use” and/or make payment via the Website.

 

While TMS provides a description for all Software and Services on the Website, it is the User’s responsibility to make sure to:

  • Collect all information regarding a subscription on the Website and Price Plan
  • Check whether these fit the User’s needs 
  • Collect information on how to use them. 

 

3.2 SERVICE

When you make payment for one of our plans as described in the Price Plan you will receive credentials for your User Account as well as the license key and option to download the plug-in, access to our support, and automatic upgrades included in the chosen Price Plan. The credentials allow us to authenticate, ensure that you can receive timely Services, and prevent any abuse.

We will make the Service available to you pursuant to this Agreement and the applicable plan you have chosen. Please note that the set of available features and the Service differ from one plan to another.

We will use commercially reasonable efforts to provide support Service during regular work hours in the country of our registered seat, except (a) during planned downtime (of which we will give notice); or (b) for any unavailability caused by circumstances beyond our reasonable control, including, for example, a force majeure event; or (c) as necessary to update the Service to ensure its security and integrity and provide the Service only in accordance with applicable law or (d) downtime during your own Internet service provider and/or any systemic Internet failures. Downtime excludes performance issues with individual features, external network, or equipment problems outside of our reasonable control, or issues that are related to external apps or third parties. 

You understand that TMS shall not provide support Service in the event Software is altered or damaged (including any portion thereof) or failure is a result of a third party’s software or the User’s omissions. We do not provide support Service to User’s end clients.

If You are dissatisfied with the terms of this Agreement or any modifications to this Agreement or the Service You agree that your sole and exclusive remedy is to terminate your subscription and discontinue use of the Service. 

If you are subscribed to any Price Plan, you will receive updates or upgrades during your subscription period (if any) in accordance with the chosen plan. Available updates are solely for use in the given number of allowable websites as defined in the relevant Price Plan.

All updates are also licensed under GPLv.2. 

If you choose not to extend your subscription at the end of your subscription term, you will lose access to the User Account, all new updates and upgrades and support Services at the end of the subscription term. You will however be able to continue using plugins that you have downloaded.

 

4. HOW CAN WE AMEND THE AGREEMENT?

TMS may revise and update these Terms of Use or any part of the Agreement at any time.

If you use the Service, you are cautioned to review the Terms of Use posted on the Website periodically. Any changes shall enter into force upon being published on the Website (including a notice via the User Account) and/or after at least 10 days after you have received a notification from us via email. Your continued access or use of the Website after any such change will constitute your acceptance of these changes. If you do not agree to the new terms of the Agreement, you must stop using the Service and delete your account. 

 

5. PROTECTION OF INTELLECTUAL PROPERTY 

As previously explained, the Software and its upgrades are open source, and they are licensed under GPLv.2. You have to comply with such a license. You may find the text of the license here.

You understand and accept that such license and the Agreement does not allow you to:

  • make misrepresentations of the origin of the Software, or to require that modified versions of the Software be marked in reasonable ways as different from the original version;
  • use for publicity purposes of names of authors or TMS;
  • grant of rights under trademark law for use of the business name, logos, trade names, trademarks, or service marks of TMS.

Everything else in the Service (including but not limited to documentation or any developers’ materials) and the entire Website Content (including but not limited to the Website source code, Website copy, images, graphic elements, design, databases, logo, or other signs, domain, trade name and business name, trademarks or service marks, algorithms, technology, design, UI, any information, sounds, videos, fonts, organization, structure, section assembly and arrangement (including without limitation “look and feel”), and any modifications or derivatives thereof) are protected by Intellectual Property Rights of TMS.

While Users have freedoms guaranteed by the GPLv.2 license regarding the Software, the Users may not acquire any other Intellectual Property Rights under this Agreement. Service is made available on a limited-access basis, and no ownership right may be conveyed to any User, irrespective of the use of terms such as “purchase” or “sale” in TOU or anywhere on the Website.

Any unauthorized use of the Content and/or any part of it, without the permission of the owner of Intellectual Property Rights, shall be deemed an infringement of Intellectual Property Rights. TMS will take all legal remedies to protect its Intellectual Property Rights immediately upon the knowledge of such unauthorized use.

TMS also reserves all Intellectual Property Rights not expressly granted in this Agreement.

If you are a natural person using the Service, in consideration of your acceptance of this Agreement and your payment of all applicable fees, TMS grants you a personal, limited, non-exclusive, non-transferable, revocable authorization to access and use the Service for your personal purposes in accordance with the Agreement and any other instructions on the Website.

If you are an Enterprise, in consideration of your acceptance to this Agreement and your payment of all applicable fees, TMS grants you a limited, non-exclusive, non-transferable, revocable authorization to access and make use of the Service solely for your internal business purposes, in accordance with the Agreement and any other instructions on the Website.

 

6. PAYMENT

6.1 PROCESSING PAYMENT

Anyone who subscribes to Service or anyone who has permitted or caused another person to make a subscription on their behalf is deemed to have agreed to and accepted liability for the payments under the chosen plan.

The order and payments are handled by our online reseller & Merchant of Record:

Paddle.Com Market Limited

15 Briery Close Great Oakley 

Corby, Northamptonshire, NN18 8JG.

TMS is not responsible for the processing of the Client’s payment and shall not be liable for any matter in connection therewith.

Therefore, you need to comply with Paddle Buyer Terms and Conditions.

User must keep all the billing data complete and accurate (such as a change in billing address, credit card number, or credit card expiration date) and must promptly notify Paddle if payment method has changed (for example, for loss or theft) or if User becomes aware of a potential breach of security, such as the unauthorized disclosure or use of name or password. If User fails to provide any of the foregoing information, User agrees that Paddle may continue charging for any use of the Service unless User has terminated Agreement as set forth herein.

If your plan involves a recurring payment of a fee, unless you notify us or Paddle before a charge that you want to cancel or do not want to automatically renew your subscription, you understand it will automatically continue and you authorize us (without notice to you) to collect the then-applicable fees and any taxes via our payment processor using any credit card we have on record for you.

If your default payment instrument is declined for any reason, we may deny access to the plan immediately.

The fees are exclusive of any VAT or other taxes and public duties, save where TMS has explicitly stated to the contrary. It is each User’s responsibility to bear all public duties related to the purchase of the Service. Please note that VAT/GST will be calculated and charged automatically upon payment. 

If the User is an Enterprise in the VAT system, by entering VAT ID you will be entitled to VAT – free purchase. If you failed to enter your VAT ID, but you are in the VAT system, you may contact Paddle to claim a refund of the VAT.

Except as stipulated in Section 6.2, paid fees are non-refundable. If the Agreement is terminated or varied during a certain billing period, the User shall not be entitled to any refund concerning that billing period. In addition, payments made for the future billing periods will not be refunded unless the Parties explicitly agree otherwise.

You understand that cessation of use of the Service will not entitle you to any refund. If you do not use the Service, you need to cancel the subscription.

6.2 REFUNDS

Customer satisfaction and long-term relationship is our primary goal here at TMS. So, even though we are confident in the quality of Amelia and the Service and are pretty sure you will not ever need a refund, we have established a straightforward customer-friendly refund policy.

We provide a 15-day “no questions asked” refund for new subscriptions. Refunds do not apply for upgrades or renewals or for the later cancellation of the Service by the User. In case you decide to use this option, please provide us with feedback as it is vital for us to make Amelia and the Service better with each release.

 

7. ACCEPTABLE USE OF THE SERVICE

To use Service, each User must comply with these rules of acceptable use:

  • User must provide complete information for payment and registration purposes.
  • User must provide accurate and up-to-date information. The User must use accurate contact information. Using false identity is strongly prohibited.
  • User will prevent any other person from using that User’s account. Use of the account by more persons is prohibited. In the case of Enterprise, only one person (such as an employee or a representative) should be authorized to use the Service.
  • User must maintain the security of the account and password and share it solely with the authorized persons. User is responsible and liable for any activity through User’s account, whether authorized or unauthorized. TMS cannot be held liable for any loss, damages, or expenses incurred due to the User’s failure to comply with this obligation. User will be liable for all losses, damages, liability, and expenses incurred by TMS or a third-party as a consequence of the use of the User Account.
  • User may not violate any applicable law or regulations in connection with the use of the Website, Service, or Software.
  • User will not engage in activity that violates the privacy of others, or any misuse or unlawful processing of personal data.
  • User will not access the Service to build a competitive product or service, to build a product using similar ideas, features, functions, or graphics, or to copy any ideas, features, functions, or graphics.
  • User will not access the Service if the User was previously prohibited by us from entering into an Agreement with us, or if the User Account and/or use of the Services was previously blocked, suspended, or terminated by us for any reason.
  • User will not scrape the Website including the use of automated tools to submit queries or posts or mine personal information from the Website.

The list of rules in these sections is non-exhaustive and we may also find that other non-bona-fide activities constitute non-acceptable use. 

 

8. DISCLAIMER OF WARRANTIES

Your use of Service is at your sole risk. The Service is provided on an “as is” and “as available” basis.

Any warranty of TMS regarding the Website, Service or Software (or part thereof) not expressly stated herein shall be deemed withheld. TMS disclaims, to the fullest extent permitted under the applicable law, all statutory warranties and course of performance, course of dealing, and usage related to licensees’ and users’ expectations.

User is solely responsible for any damage User may suffer resulting from the use of the Service. No oral or written information or advice by TMS or its authorized representatives shall create a warranty or in any way increase the scope of TMS’s obligations.

Without prejudice to the generality of the previous provisions, TMS does not warrant that:

(a) the Service will meet the User’s specific requirements nor that the Service will be “fit for purpose” 

(b) the Service will be uninterrupted, timely, secure, error-free, or of satisfactory quality.

TMS and/or its suppliers make no representations about the suitability, reliability, availability, continuity, timeliness, and accuracy of the Service and Software.

TMS reserves the right (but has no obligation) to do any of the following, at any time:

(1) to modify, change, upgrade Service, or any part of it,

(2) to interrupt the operation of Service or any part of it, as necessary to perform routine or non-routine maintenance, error correction, or other changes with timely notice to Users.

 

9. LIMITATION AND EXCLUSION OF LIABILITY

To the maximum extent permitted by the applicable law, TMS and/or its suppliers, employees, and representatives shall be liable in no event for:

(1) any loss, damage, expense, or other harmful consequences resulting from anyone’s use or inability to use Service

(2) implementation or modification of the Software not carried out by TMS

(3) any failure to apply available update, service pack, fix or upgrade that would have avoided the harmful event

(4) any unauthorized access to the User Account.

To the maximum extent permitted by applicable law, in no event shall TMS and/or its suppliers, employees and representatives be liable for: any indirect, punitive, incidental, special, consequential damages or any damages whatsoever (including, without limitation, damages for loss of use, data or profits, or business interruption) arising out of or in any way connected:

  • with the use or performance of Service,
  • with the delay or inability to use Service and the Service, including the provision of or failure to provide Service,
  • with information, Website, Software, Service, and related graphics obtained through Service, or otherwise arising out of the use of Service, whether based on contract, tort, negligence, strict liability, or otherwise.

In the event that any of the foregoing limitations are deemed unenforceable or in the event any liability of TMS is established, to the greatest extent permitted by law, You agree that the entire aggregate liability of TMS and sole remedy available to any User in any case in any way arising out of or relating to the Agreement, Software or the Service shall be limited to monetary damages that in the aggregate may not exceed the sum of any amount paid (if any) by that User during the twelve months prior to notice to TMS of the dispute for which the remedy is sought.

You agree that this limitation of liability represents a reasonable allocation of risk and is a fundamental element of the basis of the bargain between TMS and you. You understand that the Website, Service and Software would not be provided without such limitations.

Some countries do not allow the limitation of certain damages, so some or all of this limitation of liability may not apply to you and you may have additional rights. Nevertheless, if any portion of these sections is held to be invalid under the applicable law, the invalidity of such portion shall not affect the validity of the remaining portions of the applicable sections.

This Section does not exclude mandatory liability for:

(a) Wilful breach by TMS of any of its obligations

(b) Death or personal injury caused by a defective item produced by TMS.

Neither Party shall be liable for breaching its obligations due to a circumstance they reasonably could not have foreseen and which is beyond their control, such as, e.g., a force of nature, an act of a legislative or executive authority, war, civil unrest, an act of terror, strike, non-trivial cyber-attack, failure of a third-party hosting, Internet failure or any other circumstance qualifying as force majeure under the applicable law — to the extent that the respective circumstance prevented or hindered the Party’s performance. For the avoidance of doubt, the provisions of this section:

(a) are not intended to derogate from, or limit the application of, any statutory limitation or exclusion of liability

(b) shall not be construed to limit the amount of, or excuse User from paying, any fee or other consideration owed hereunder.

 

10. TERMINATION

This Agreement shall continue until either:

  • (1) you cancel your subscription (including the notice of non-renewal) and/or request for your User Account to be deactivated and deleted

or

  • (2) terminated by TMS.

 

10.1 TERMINATION BY USER

The User of Service may terminate this Agreement by canceling the subscription via the User’s store account or by getting in touch with us via  [email protected]

Canceling the Service before termination of the subscription period does not entitle a User to a refund, except as stipulated in Section 6.2.

If you cancel after your subscription renewal date, you will not receive a refund for any amounts that have been charged for the renewed subscription period. Your cancellation will be effective at the end of your then-current subscription term, subject to applicable law, and you may use the Service until your cancellation is effective (unless your access is suspended or terminated in accordance with this Agreement or the applicable law). In other words, you may use the Service until the end of your subscription term. 

If you use any plan that involves a recurring payment of a fee, we will stop charging the Service from the moment you notify us that you wish to cancel or that you do not want to automatically renew your subscription. Until such cancellation, you understand that we have the right to automatically continue (without notice to you, unless required by the applicable law) to collect the then-applicable fees and any taxes using any payment information we have on record for you.

 

10.2 TERMINATION BY TMS

You agree that TMS may immediately terminate this Agreement if you do not pay the fees when due in accordance with your plan.

TMS may deny you access to all or any part of the Service or terminate your account with or without prior notice if you engage in any conduct or activities that TMS determines, at its sole discretion, violate this Agreement or the rights of TMS or any third party, or is otherwise inappropriate (for example, criminal and fraudulent activities, breach of Intellectual Property Rights, ect.). Without limitation, TMS may deny you access to the Service, or terminate this Agreement.

TMS may, at its sole discretion, at any time and for any reason terminate the Service and this Agreement. TMS will send notice to User at the email address User provides when creating User Account, or such other email address User may later provide to TMS. In the event such termination occurs before the end of a User’s subscription term, TMS will provide a refund of the fees in the amount that is proportionate to the remaining subscription period. 

TMS shall not be liable for any damage caused to you or any third-party as a result of terminating the Agreement or by suspending or otherwise limiting your use of the Services.

 

10.3 TERMINATION SURVIVAL

The following provisions will survive termination of this Agreement: 

  • Any obligation of the User to pay for the Service for the subscription until the effective date of termination of the Agreement 
  • Section 5 (Protection of Intellectual Property)
  • Section 8 (Disclaimer of Warranties) and Section 9 (Limitation and Exclusion of Liability)
  • Section 15 (Indemnity)
  • Section 16 (Applicable Law; Dispute Resolution)
  • Section 17 (No Class Action)
  • Any other provision of this Agreement that must survive to fulfill its essential purpose.

 

11. SEVERABILITY

If any provision of this Agreement is found invalid by any court or arbitration having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.

If any provision of this Agreement violates any mandatory rule of the applicable law and proves to be void as a result thereof, such provision shall, for those specific circumstances and only in that particular respect in which it is void, be deemed to have been amended to comply with the law. Any such amendment shall be confined to the minimum necessary to make the provision valid and shall retain as much of its original ambit and meaning as possible.

 

12. NOTICES

All notices to TMS shall be provided to [email protected] or to the address specified in Section 1 (Definitions).

TMS may give notice to a User via the email address associated with the User Account, by notification on the User Account or (exceptionally) by mail or courier to the address provided for that User under Workspace Owner’s details.

Notice shall be deemed to have been received:

  • (1) the next day if given via notice on User Account or via email
  • (2) five workdays after posting the notice via courier or registered post. By workday, we mean workdays at TMS’s registered seat.

 

13. NO WAIVER AND ASSIGNMENT

Our failure to exercise or enforce any right or provision of the Terms of Use shall not constitute a waiver of such right or provision.

TMS may assign the Agreement, in whole or in part, at its sole discretion. You are not entitled to assign or otherwise transfer the Agreement, or any of your rights or obligations hereunder, to any third party without our prior written consent. Any unauthorized assignment will be void and of no force or effect.

 

14. LINKS TO THIRD-PARTY WEBSITES

Should TMS enable access to data from another service provider through linking, TMS does not carry responsibility for such information.

The Website may contain links to other websites, owned by other legal or natural persons. Each of these websites has its Terms of Use and Privacy Policy on handling personal data, which may differ significantly from those which are applied to the use of this Website. TMS has no control over such websites and shall not carry any responsibility neither for the availability of those websites nor for the Terms of Use and Privacy Policy that applies to their visitors and users.

Placing links to third-party websites on the Website does not in any way imply that TMS recommends or approves services or products offered through such websites.

 

15. INDEMNITY

You agree to indemnify and hold TMS harmless from any and all demands, losses, liability, claims, or expenses (including attorneys’ fees) made against TMS by any third party due to or arising out of or in connection with your use of Service and the Service, including but not limited to:

(a) your use of the Service and/or Software in violation of this Agreement and any applicable law, and/or arising from a breach of this Agreement and any applicable law;

(b) any activity related to your User Account, be it by You or by any other person accessing your account with or without your consent unless such activity was caused by the act or default of TMS.

 

16. APPLICABLE LAW; DISPUTE RESOLUTION

This Agreement and any matter or dispute arising out of or related to the subject matter of the Agreement shall be governed, construed, and enforced in accordance with the Laws of the Republic of Serbia, without regard to its conflict of laws rules. Specifically excluded from application to this Agreement is that law known as the United Nations Convention on the International Sale of Goods.

Mindful of the high cost of arbitration, you and TMS agree to the following dispute resolution procedure: in the event of any controversy, claim, action, or dispute arising out of or related to: (i) the Website; (ii) this Agreement; (iii) the Service; (iv) the breach, enforcement, interpretation, or validity of this Agreement; or (v) any other dispute between you and TMS (“Dispute“), the Party asserting the Dispute shall first try in good faith to settle such Dispute by providing written notice to the other Party (by first-class or registered mail) describing the facts and circumstances (including any relevant documentation) of the Dispute and allowing the receiving Party 30 days in which to respond to or settle the Dispute (“Mandatory negotiations“).

Notice shall be sent:

(1) if to TMS at the address of TMS registered seat.

(2) if to you at: your last-used email address in your account information or (exceptionally) the address in your account information or the address of the registered seat of the company (for an Enterprise).

Both you and TMS agree that this dispute resolution procedure is a condition precedent that must be satisfied before initiating any arbitration or filing any claim against the other Party.

Failing to resolve the dispute via Mandatory negotiations, all disputes arising out of or in connection with the Agreement shall be finally settled by arbitration organized in accordance with the Rules of the Belgrade Arbitration Center (the Belgrade Rules). The number of arbitrators shall be one. The place of arbitration shall be Belgrade. The language to be used in the arbitral proceedings shall be English. 

If the above agreement, with respect to arbitration, proves to be void or unenforceable, all disputes to which it was intended to apply shall be subject to the exclusive jurisdiction of the competent court in Belgrade, Serbia. In such a case, the Mandatory negotiations clause remains applicable as a precondition to initiating court resolution of the dispute.

This clause shall survive termination of the Agreement.

Notwithstanding the provisions above, TMS may, at its absolute discretion, assert and seek the protection of its Intellectual Property Rights anywhere in the world.

 

17. NO CLASS ACTION

Except where prohibited by law, as a condition of using the Service, you agree that any and all disputes, claims, and causes of action arising out of or connected with the Agreement, shall be resolved individually, without resort to any form of class action.

Any arbitration under these Terms of Use will take place on an individual basis; class arbitrations and class/representative/collective actions are not permitted.

THE PARTIES AGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN EACH INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE, AND/ OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER. 

Further, unless both you and TMS agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.

 

18.  ENTIRE AGREEMENT

This Agreement (as amended from time to time) including any linked documents or documents that are expressly included in the Agreement constitutes the entire Agreement between the Parties relating to the subject matter hereof and supersedes all prior agreements and understandings between the Parties with respect to that subject matter.

In case of conflict between any provision herein and any statement, representation, or other information published on the Website or contained in any other materials or communications, the provision in the Agreement shall prevail.