This Duzy User Agreement (“Agreement”), the User Privacy Notice, and all policies posted on our sites, set out the terms on which Duzy offers you, the user (“you”) access to, and use of, our website, media player (“Duzy Player”), access to and use of our application programming interface (“Duzy API”) and the services we provide via the website, Duzy Player, and Duzy API (the “Duzy Services”). All of our policies are incorporated into this Agreement. You agree to comply with all of the terms and conditions of this Agreement when using or accessing our website, Duzy Player, Duzy API, and/or Duzy Services (collectively, the “Duzy Platform”). If you do not agree to any of these terms, you may not access or use the Duzy Platform. Use and/or access to the Duzy Platform constitutes your agreement to the terms and conditions of this Agreement. If you accept or agree to this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the Agreement and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
The entity you are contracting with is Duzy IOD LLC, a limited liability company organized under the laws of the State of New Jersey, with its principal address located at 30B Vreeland Road, Suite 100, c/o Jardim, Meisner & Susser, P.C., Florham Park, New Jersey 07932 (“Duzy,” “we,” “us,” or “our”).
In order to use or access certain features of the Duzy Platform, you will have to create a Duzy account. You may never use the account of another without permission and you are solely responsible for keeping your account access and account passwords secure. You are solely responsible for activity that occurs on your account, Duzy shall not be held liable for losses that occur through the authorized and/or unauthorized use of your account, although you may be liable to Duzy for its losses as a result of such authorized and/or unauthorized use.
Please be advised that this Agreement contains provisions that govern how claims you and we have against each other are resolved (see Disclaimer of Warranties; Limitation of Liability and Legal Disputes provisions below). It also contains an Agreement to Arbitrate, which will, with limited exception, require you to submit claims you have against us or our agents to binding and final arbitration, unless you opt out of the Agreement to Arbitrate (see Legal Disputes, Agreement to Arbitrate). Unless you opt out: (1) you will only be permitted to pursue claims against us or our agents on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
ABOUT DUZY
Duzy provides you with access to our Duzy Platform, subject to you your acceptance of this Agreement. You may access and utilize the Duzy Platform if you accept this Agreement and only for so long as you comply with all of its terms.
The Duzy Platform allows you to publish your own videos, media or other content (“Your Content”) through our Duzy Player, and using our Duzy Services, to the public.
By using our Duzy Platform, Your Content may be viewed through our interactive on demand (“IOD”) viewing platform, through which viewers can directly engage with Your Content. For example, viewers can make direct purchases of goods and/or services through Your Content; sign up for an account on your website or a newsletter or email list (we refer to this as “Lead Generation”); or make donations to your non-profit organization, all on the terms and conditions that you set forth. Your Content may not contain any unauthorized content of third parties, provide access to purchase any illegal, counterfeit or unauthorized goods or services and in addition to any other indemnity herein, you agree to indemnify and hold Duzy harmless for any such infringing and/or illegal activity.
If any of your viewers transact with you through the Duzy Platform (e.g., make a purchase, make a donation, or otherwise interact with you to constitute Lead Generation), Duzy is paid Fees (as discussed below). Although Duzy provides you with the Duzy Platform, Duzy is not, and never will be, a party to any contract or transaction between you and any third party. Any such contract or transaction is between you and such party. Our role is limited to providing you with access to the Duzy Platform as a medium for you to present your goods, services, or organization to the public in a unique and effective way.
USING DUZY
The Duzy Platform is available only to individuals aged 18 years or older. If you are 18 or older, but under the age of majority in your jurisdiction (18 in most U.S. states), your parent or guardian must consent to your use of the Duzy Platform, and such parent or guardian hereby represents to Duzy that he or she has read this Agreement and agrees to be legally bound by this Agreement on your behalf.
We reserve the right, in our sole and absolute discretion, to deny you access to the Duzy Platform, or any portion of the Duzy Platform, including by closing or disconnecting your account, without notice and without reason.
In connection with using or accessing the Duzy Platform you agree that you will not:
• publish any media or content that
• violates any laws, rules, or regulations (federal, state, local, and international);
• violates the policies or rights of any third-party, including any third-party with whom you have contracted with respect to Your Content, your transactions, your publications, or any goods that you may sell or attempt to sell; is defamatory, libelous, indecent, obscene, pornographic, sexually explicit, invasive of another’s privacy, promotes violence, or contains hate speech (i.e., speech that attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status, and/or sexual orientation/gender identity); or
• discloses any sensitive information about another person, including that person’s e-mail address, postal address, phone number, credit card information, or any similar information;
• breach or circumvent any laws, third-party rights or our systems, policies, or determinations of your account status;
• use our Duzy Platform if you are not able to form legally binding contracts (for example, but without limitation, if you are under 18 years old), or are temporarily or indefinitely suspended from using our sites, services, applications or tools;
• post false, inaccurate, misleading, or deceptive content;
• distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes;
• distribute viruses or any other technologies;
• use any robot, spider, scraper, data mining tools, data gathering and extraction tools, or other automated means;
• export or re-export any of our applications or tools, except in compliance with the export control laws of any relevant jurisdictions and in accordance with posted rules and restrictions;
• infringe, misappropriate, or violate the copyright, trademark, patent, trade secret, publicity, moral, database, and/or other intellectual property rights (collectively, “Intellectual Property Rights”) that belong to or are licensed to Duzy or any third party. Some, but not all, actions that may constitute infringement are reproducing, performing, displaying, distributing, copying, reverse engineering, decompiling, disassembling, or preparing derivative works from content that belongs to Duzy or someone else;
• infringe any Intellectual Property Rights that belong to third parties affected by your use of the Duzy Platform or post video, media or other content that does not belong to you or for which you do not have the right to use;
• commercialize any Duzy application or any information or software associated with such application or the Duzy Platform;
• harvest or otherwise collect information about users or third parties without their consent;
• circumvent any technical measures, security or privacy controls we use to provide the Duzy Platform;
• alter or modify any part of the Duzy Platform, or decompile, reverse engineer or in any way try to discover the software code or functionality of the Duzy Platform; or
• use the Duzy Platform in order to build a competitive product or service, or for any purpose not specifically permitted in this Agreement.
If you use the Duzy Platform embedded in any other platform, such as social media sites or your own website, you agree to be additionally bound by any terms and conditions of such site and you may not modify, build upon, or block any portion or functionality of the Duzy Platform, including but not limited to links embedded by Duzy to Duzy controlled sites.
If we believe you are abusing the Duzy Platform in any way, we may, in our sole discretion and without limiting other remedies, and without liability to you, limit, suspend, or terminate your user account(s) and access, and take technical and/or legal steps to prevent you from using our Duzy Platform. If this happens, you are not authorized to use the Duzy Platform through a third party or to set up an alternate account using a different name/password unless and until we give you express written permission to do so.
We may cancel unconfirmed accounts or accounts that have been inactive for a long time. Additionally, we reserve the right to refuse or terminate all or part of our services to anyone for any reason at our discretion without liability.
Duzy only provides the Duzy Platform and has no control whatsoever over your transactions. Such transactions are your responsibility and Duzy disclaims all liability related to your transactions. Use of the Duzy Platform requires you to comply with all laws and regulations pertaining to sales transactions and donations of every type and nature.
If you are a viewer of content that someone else has posted through their account using the Duzy Platform, you are also bound by the terms and conditions of this Agreement. If you decide to transact with a content provider through the use of the Duzy Platform, such transactions are your responsibility and the responsibility of that third party. Duzy is not a party to any transaction between parties on or through the Duzy Platform. Duzy disclaims all liability related to your transactions. You may transact through the Duzy Platform at your own risk. Use of the Duzy Platform requires you to comply with all laws and regulations pertaining to transactions and donations of every type and nature.
You understand and agree that when using the Duzy Platform or when viewing content provided through the Duzy Platform, you may be exposed to content from a variety of sources and that Duzy is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such content. You further understand and acknowledge that you may be exposed to content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Duzy with respect thereto, and, to the extent permitted by applicable law, agree to indemnify and hold harmless Duzy, its owners, operators, affiliates, licensors, and licensees to the fullest extent allowed by law regarding all matters related to your use of the Duzy Platform and/or viewing or interaction with content provided through the Duzy Platform. Duzy does not endorse any content and expressly remains content neutral with respect to any content provided by any third party using the Duzy Platform, provided however, Duzy shall comply with laws regarding intellectual property infringement (see below).
FEES
We charge fees (“Fees”) which content providers using the Duzy Platform will be responsible for. Although we do not charge any fees for using the Duzy Platform, we do charge Fees in the form of commissions that are imposed upon any sale, Lead Generation, or donation transaction that takes place through the use of the Duzy Platform.
The Fees are listed on our Standard Fees Page. We may change our Fees at any time and from time to time without prior notice to you.
In order to offer goods or services, solicit donations, or seek Lead Generation through the Duzy Platform, you must have an active merchant account with PayPal. All transactions that take place through the Duzy Platform must be transacted through PayPal (the “Payment Process”).
YOUR TRANSACTIONS
Duzy provides you with the Duzy Platform, which allows you to publish Your Content, and which lets your viewer interact directly with Your Content within the confines of the Duzy Player.
The Duzy Services allow you to program Your Content so that your viewers may “interact” or “hyperlink” to another website, such as an e-commerce site, of your choice, so long as it is a lawful and lawfully utilized site that is otherwise available to you through the internet. For example, Your Content may be “linked” to your personal eBay site; or a commercial affiliate or associate site such as Amazon Associate Program; or to your personal or business web site that utilizes a sale-of-goods transaction platform (“Your Transaction Platform”).
Duzy does not require you to use the Duzy Platform for commercial purposes, to transact sales, seek Lead Generation, or solicit donations. You are free to use the Duzy Platform solely for publishing Your Content. You may also “link” Your Content to other non-commercial web sites without intention to conduct transactions. Further, you may do so without being charged Fees.
However, if you do program Your Content for transactions (“Your Transactions”), you hereby agree to the following:
• Duzy takes no responsibility whatsoever for Your Transactions.
• You agree that you will conduct Your Transactions pursuant to, and in accordance with, the terms and conditions of Your Transaction Platform, including any user agreement applicable to Your Transaction Platform.
• You agree that you will conduct Your Transactions in accordance with all laws and regulations, including local laws, and including the laws of other states and other countries which may be applicable to any particular of Your Transactions.
• You agree that all of Your Transactions will be transacted exclusively through the Duzy Platform.
• You agree that, in connection with all of Your Transactions, you authorize PayPal to pay Duzy its Fees from the sales proceeds (or flat Fees associated with donations) and to pay you only the balance after our associated Fees and any PayPal fees, if any, are deducted and you agree that such net amount shall constitute your full and final price for Your Transaction(s).
• By using the Duzy Platform, you agree to indemnify and hold Duzy harmless from any and all claims, causes of action, liabilities and other obligations relating to Your Transactions, to the fullest extent permitted under applicable law.
CONTENT
You expressly acknowledge and agree that once you submit Your Content in connection with the Duzy Platform, there is no confidentiality or privacy with respect to Your Content, including, without limitation, any personally identifying information that you may make available. YOU, AND NOT DUZY, ARE ENTIRELY RESPONSIBLE FOR ALL YOUR CONTENT THAT YOU PUBLISH VIA THE DUZY PLATFORM.
You retain all copyrights and other Intellectual Property Rights in and to Your Content. You do, however, grant Duzy a non-exclusive, transferrable, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right and license to copy, record, synchronize, transmit, translate, format, distribute, publicly display, publicly perform, and otherwise use or exploit Your Content and to exercise any and all Intellectual Property Rights (as defined above) therein in connection with our provision, expansion, and promotion of the Duzy Player and the Duzy Services, and the general marketing and promotion of Duzy’s business, in any media known now or developed in the future. To the fullest extent permitted under applicable law, you waive your right to enforce against Duzy, our assignees, our sublicensees, and their assignees your Intellectual Property Rights in that content in connection with our, those assignees’, and those sublicensees’ use of Your Content in connection with our provision, expansion, and promotion of the Duzy Platform.
You represent and warrant that, for all Your Content you enable through the Duzy Platform, you own or otherwise control all necessary rights to use such content, to license it to Duzy as set forth herein, and to meet your obligations under this Agreement, which includes obtaining personal releases from all individuals that appear in Your Content that permit Duzy to use such individuals’ name, likeness, image, and other personally identifying features provided in Your Content for the purposes described herein, including, but not limited to, promotion of Duzy’s business. You represent and warrant that such content is accurate. You represent and warrant that use of any such content (including derivative works) by us, our users, or others in contract with us, and in compliance with this Agreement, does not and will not infringe any Intellectual Property Rights of any third-party. Duzy takes no responsibility and assumes no liability for any content provided by you or any third-party.
The Duzy Platform is protected by patent, copyright, trademark, and other laws of the United States and foreign countries. Duzy has obtained a patent on the Duzy Platform from the U.S. Patent and Trademark Office. Except as expressly provided in this Agreement, Duzy and our licensors exclusively own all right, title, and interest in and to the Duzy Platform, including all associated intellectual property rights. You will not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Duzy Platform.
By accessing and/or using the Duzy Platform, you represent and warrant that such access and/or use of the Duzy Platform is not for an illegal purpose or to perform an illegal act or omission.
The Duzy Platform contains material, such as software, text, graphics, images, and other material provided by or on behalf of Duzy (“Duzy Content”). The Duzy Content may be owned by us or third parties. The Duzy Content is protected under both United States and foreign laws. Unauthorized use of the Duzy Content may violate copyright, trademark, and other laws.
We and our licensors retain all right, title, and interest, including all intellectual property rights, in and to the Duzy Content. You must retain all copyright and other proprietary notices contained in the original Duzy Content. You may not sell, transfer, assign, license, sublicense, or modify the Duzy Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Duzy Content in any way for any public or commercial purpose.
The name “Duzy” and other Duzy marks, logos, designs, and phrases that we use in connection with the Duzy Platform are trademarks, service marks, or trade dress of Duzy in the U.S. and other countries. They may not be used without the express written prior permission of Duzy.
Elements of the Duzy Platform are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors.
NOTICE FOR CLAIMS OF INTELLECTUAL PROPERTY VIOLATIONS AND COPYRIGHT INFRINGEMENT PURSUANT TO SECTION 512(C) OF TITLE 17 OF THE UNITED STATES CODE
We respond to notices of alleged copyright infringement under the United States Digital Millennium Copyright Act. We may act to ensure that Your Content does not infringe upon the copyright, trademark, or certain other intellectual property rights of third parties.
If you are a copyright owner or an agent thereof and believe that any content displayed through the Duzy Player or Duzy Services infringes upon copyrights which you own or rightfully manage, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing us with the following information in writing pursuant to 17 USC 512(c)(3):
• A physical or electronic signature of a person authorized to act on behalf of the alleged copyright owner or an exclusive e right that is allegedly infringed;
• Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works, a representative list of such works at that site;
• Identification of the material that is claimed to be infringing or is otherwise the subject of the allegedly infringing activity reasonably sufficient to allow us to investigate and remove.
If you believe Your Content was removed wrongfully in response to a DMCA takedown notice and is in fact, not infringing of any copyright, you may send us a counter notice. We may send such counter-notice to the original claimant.
All such DMCA notices should be sent to our DMCA Agent at Duzy IOD LLC, c/o Jardim, Meisner & Susser PC, 30-B Vreeland Road, Suite 100, Florham Park, New Jersey 07932. Please only direct DMCA notices to this address. All other notices should be directed to us at our “Contact Us” links. You agree and understand that all DMCA notices shall comply with 17 USC 512(c)(3) and the information contained therein or such notice may not be valid.
DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
WE TRY TO KEEP THE DUZY PLATFORM SAFE, SECURE, AND FUNCTIONING PROPERLY, BUT WE CANNOT GUARANTEE THE CONTINUOUS OPERATION OF OR ACCESS TO OUR SERVICES. YOU AGREE THAT YOU ARE MAKING USE OF OUR SERVICES AT YOUR OWN RISK, AND THAT THEY ARE BEING PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES, TERMS AND CONDITIONS INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
YOU UNDERSTAND THAT DUZY DOES NOT MANUFACTURE, STORE, OR INSPECT ANY OF THE GOODS OR SERVICES SOLD OR OFFERED FOR PLACEMENT THROUGH THE DUZY PLATFORM. THE GOODS AND SERVICES ARE PRODUCED, LISTED, SOLD, AND OFFERED DIRECTLY BY SELLERS AND USERS OF THE DUZY PLATFORM, NOT BY DUZY, AND, ACCORDINGLY, DUZY CANNOT AND DOES NOT MAKE ANY WARRANTIES ABOUT THEIR QUALITY, SAFETY, OR EVEN THEIR LEGALITY. AS A BUYER, ANY LEGAL CLAIM RELATED TO A GOOD OR SERVICE YOU PURCHASE THROUGH THE DUZY PLATFORM, OR ANY OTHER TRANSACTION THAT YOU MAKE THROUGH THE DUZY PLATFORM (SUCH AS A CHARITABLE DONATION OR A LEAD GENERATION) MUST BE BROUGHT DIRECTLY AGAINST THE SELLER AND/OR MANUFACTURER OF THE PRODUCT, OR THE CONTENT PROVIDER, AS THE CASE MAY BE. YOU HEREBY RELEASE DUZY FROM ANY CLAIMS RELATED TO TRANSACTIONS MADE POSSIBLE THROUGH OUR SERVICES, INCLUDING FOR DEFECTIVE GOODS, MISREPRESENTATIONS BY CONTENT PROVIDERS, OR PHYSICAL INJURY (E.G., PRODUCT LIABILITY CLAIMS).
IN ADDITION, TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS WE (INCLUDING OUR PARENT, SUBSIDIARIES, AND AFFILIATES, AND OUR AND THEIR OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES) ARE NOT LIABLE, AND YOU AGREE NOT TO HOLD US RESPONSIBLE, FOR ANY DAMAGES OR LOSSES NOT ATTRIBUTABLE TO PERSONAL INJURIES (INCLUDING, BUT NOT LIMITED TO, LOSS OF MONEY, GOODWILL OR REPUTATION, PROFITS, OTHER INTANGIBLE LOSSES, OR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES) RESULTING DIRECTLY OR INDIRECTLY FROM:
• YOUR CONTENT AND YOUR TRANSACTIONS;
• YOUR USE OF OR YOUR INABILITY TO USE OUR SERVICES;
• DELAYS OR DISRUPTIONS IN OUR SERVICES;
• AGREEMENTS AND TRANSACTIONS YOU HAVE WITH OR THROUGH ANY CONTENT PROVIDER’S TRANSACTION PLATFORM;
• VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING OR LINKING TO OUR SERVICES;
• GLITCHES, BUGS, ERRORS, OR INACCURACIES OF ANY KIND IN OUR SERVICES;
• DAMAGE TO YOUR HARDWARE DEVICE FROM THE USE OF THE DUZY PLATFORM;
• THE CONTENT, ACTIONS, OR INACTIONS OF THIRD PARTIES;
• A SUSPENSION OR OTHER ACTION TAKEN WITH RESPECT TO YOUR ACCOUNT FOR ANY REASON; OR
• YOUR NEED TO MODIFY PRACTICES, CONTENT, OR BEHAVIOR, OR YOUR LOSS OF OR INABILITY TO DO BUSINESS, AS A RESULT OF CHANGES TO THIS AGREEMENT OR OUR POLICIES.
SOME JURISDICTIONS, INCLUDING THE STATE OF NEW JERSEY, DO NOT ALLOW THE DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES, SO SUCH DISCLAIMERS AND EXCLUSIONS MAY NOT APPLY TO YOU. NOTHING IN THIS AGREEMENT SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.
REGARDLESS OF THE PREVIOUS PARAGRAPHS, IF WE ARE FOUND TO BE LIABLE, OUR LIABILITY TO YOU OR TO ANY THIRD-PARTY FOR DAMAGES (OTHER THAN THOSE ATTRIBUTABLE TO PERSONAL INJURIES) IS LIMITED TO THE GREATER OF: (A) THE AMOUNT OF FEES WHICH YOU PAID TO US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY, OR (B) $100.
RELEASE
If you have a dispute with one or more viewers of Your Content, or parties to Your Transactions, or any other third parties, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
INDEMNITY
In addition to other indemnities set forth elsewhere in this Agreement, you will indemnify and hold us (including our affiliates and subsidiaries, as well as our and their respective officers, directors, employees, agents) harmless from any claim or demand, including reasonable legal fees, made by any third-party due to or arising out of your breach of this Agreement, your improper use of our Duzy Platform or any portion thereof, or your violation of any law or the rights of a third-party.
LEGAL DISPUTES
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND DUZY HAVE AGAINST EACH OTHER ARE RESOLVED.
You agree that the Duzy Platform shall be deemed to be located solely in New Jersey and the Duzy website shall be deemed a passive website that does not give rise to personal jurisdiction over Duzy, either specific or general, in jurisdictions other than New Jersey.
You and Duzy agree that any claim or dispute at law or equity that has arisen, or may arise, between you and Duzy (including any claim or dispute between you and a third-party agent of Duzy) that relates in any way to or arises out of this or previous versions of this Agreement, your use of or access to the Duzy Platform, the actions of Duzy or its agents, or any products or services sold or purchased through the Duzy Player and the Duzy Services, will be resolved in accordance with the provisions set forth in this Legal Disputes Section.
Applicable Law
You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of New Jersey, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and Duzy, except as otherwise stated in this Agreement.
Agreement to Arbitrate
You and Duzy each agree that any and all disputes or claims that have arisen, or may arise, between you and Duzy (including any disputes or claims between you and a third-party agent of Duzy) that relate in any way to or arise out of this or previous versions of the Agreement, your use of or access to the Duzy Platform, the actions of Duzy or its agents, or any products or services sold, offered, or purchased through the Duzy Platform shall be resolved exclusively through final and binding arbitration, rather than in court. Alternatively, you may assert your claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND DUZY 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 OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. UNLESS BOTH YOU AND DUZY 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, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR 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). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court, subject to your and Duzy’s right to appeal the court’s decision. All other claims will be arbitrated.
Arbitration Procedures
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of the User Agreement as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of the Section entitled “Prohibition of Class and Representative Actions and Non-Individualized Relief,” shall be for a court of competent jurisdiction to decide.
The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Consumer Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. The use of the word “arbitrator” in this provision shall not be construed to prohibit more than one arbitrator from presiding over an arbitration; rather, the AAA’s rules will govern the number of arbitrators that may preside over an arbitration conducted under this Agreement to Arbitrate.
A party who intends to seek arbitration must first send to the other, by certified mail, a completed form Notice of Dispute (“Notice”). The Notice to Duzy should be sent to Duzy IOD LLC, Attn: Litigation Department, Re: Notice of Dispute, c/o Jardim, Meisner & Susser, PC, 30-B Vreeland Road, Suite 100, Florham Park, NJ 07932. Duzy will send any Notice to you to the physical address we have on file associated with your Duzy account; it is your responsibility to keep your physical address up to date. All information called for in the Notice must be provided, including a description of the nature and basis of the claims the party is asserting and the relief sought.
If you and Duzy are unable to resolve the claims described in the Notice within 30 days after the Notice is sent, you or Duzy may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA’s site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send a copy to Duzy at the following address: Duzy IOD LLC, c/o Jardim, Meisner & Susser, PC, 30-B Vreeland Road, Suite 100, Florham Park, NJ 07932 In the event Duzy initiates an arbitration against you, it will send a copy of the completed form to the physical address we have on file associated with your Duzy account. Any settlement offer made by you or Duzy shall not be disclosed to the arbitrator.
The arbitration hearing shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Duzy may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Duzy subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or Duzy may attend by telephone, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same Duzy user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Costs of Arbitration
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this Agreement to Arbitrate.
Severability
With the exception of any of the provisions in the Section of this Agreement to Arbitrate entitled “Prohibition of Class and Representative Actions and Non-Individualized Relief,” if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply.
Opt-Out Procedure
IF YOU ARE A NEW USER OF OUR SERVICES, YOU CAN CHOOSE TO REJECT THIS AGREEMENT TO ARBITRATE (“OPT-OUT”) BY MAILING US A WRITTEN OPT-OUT NOTICE (“OPT-OUT NOTICE”). THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER THAN 30 DAYS AFTER THE DATE YOU ACCEPT THE USER AGREEMENT FOR THE FIRST TIME. YOU MUST MAIL THE OPT-OUT NOTICE TO DUZY IOD LLC, C/O JARDIM, MEISNER & SUSSER PC; 30-B VREELAND ROAD, SUITE 100, FLORHAM PARK, NEW JERSEY 07932.
You must send us an Opt-Out Notice to opt out of the Agreement to Arbitrate. You must complete the Opt-Out Notice form by providing the information called for in the form, including your name, address (including street address, city, state and zip code), and the user ID(s) and email address(es) associated with the Duzy account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. If you opt out of the Agreement to Arbitrate, all other parts of this User Agreement and its Legal Disputes Section will continue to apply to you. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us.
Future Amendments to the Agreement to Arbitrate
Notwithstanding any provision in the User Agreement to the contrary, you and we agree that if we make any amendment to this Agreement to Arbitrate (other than an amendment to any notice address or site link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against Duzy prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and Duzy. We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms on www.duzytv.com at least 30 days before the effective date of the amendments and by providing notice by email. If you do not agree to these amended terms, you may close your account within the 30-day period and you will not be bound by the amended terms.
Judicial Forum for Legal Disputes
Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the Agreement to Arbitrate or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and Duzy must be resolved exclusively by a state or federal court located in Essex County, New Jersey. You and Duzy agree to submit to the personal jurisdiction of the courts located within Essex County, New Jersey for the purpose of litigating all such claims or disputes.
Claims not Subject to Arbitration
Notwithstanding anything in the foregoing to the contrary, any claim by a third party that Your Content violates their Intellectual Property Rights based on federal law shall not be resolved by arbitration and instead may be brought by either party or any third party in any federal court under the appropriate federal cause of action in a federal court located in Newark, New Jersey. This exception to arbitration is meant to fully protect the rights of third parties whose intellectual property you may be violating and their right to full adjudication in federal court.
Equitable Relief
You acknowledge and agree that in the event of a breach or threatened violation of our Intellectual Property Rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in in Essex County, New Jersey for purposes of any such action by us.
GENERAL
Except as otherwise provided in this Agreement, if any provision of this Agreement is held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions. In our sole discretion, we may assign this Agreement, and in such event, we will post notice on www.duzytv.com.
Headings are for reference purposes only and do not limit the scope or extent of such Section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this Agreement.
We may amend this Agreement at any time by posting the amended terms on www.duzytv.com. Our right to amend the Agreement includes the right to modify, add to, or remove terms in the Agreement. We will provide you 30 days’ notice by posting the amended terms. Additionally, we will notify you by email. Your continued access or use of the Duzy Player and Duzy Services constitutes your acceptance of the amended terms. We may also ask you to acknowledge your acceptance of the Agreement through an electronic click-through. This Agreement may not otherwise be amended except through mutual agreement by you and a Duzy representative who intends to amend this Agreement and is duly authorized to agree to such an amendment.
If you create or use an account on behalf of a business entity, you represent that you are authorized to act on behalf of such business and bind the business to this Agreement. Such account is owned and controlled by the business entity. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
The Agreement and all terms and polices posted through our services set forth the entire understanding and agreement between you and Duzy, and supersede all prior understandings and agreements of the parties.
The following Sections survive any termination of this Agreement: Fees, Content, Disclaimer of Warranties; Limitation of Liability; Release, Indemnity, Legal Disputes, and General.
If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210