Last Updated: October 5, 2019
ARBITRATION NOTICE . Except for certain kinds of disputes described in Section 10, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND Plume ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 10.)
1. OWNERSHIP; PROPRIETARY RIGHTS.
The Site is owned and operated by Plume. The visual interfaces, graphics, artwork, information, data, computer code, and all other elements of the Site ("Materials"), including the design, structure, selection, coordination, expression, "look and feel" and arrangement of such Materials are protected by intellectual property and other laws. All Materials included in the Site are the property of Plume or its third party licensors. Except as expressly authorized by Plume, you may not make use of the Materials. Plume reserves all rights to the Materials not granted expressly in these Terms.
2. YOUR USE OF THE SITE.
2.1 Limited License. Subject to your complete and ongoing compliance with these Terms, Plume grants you, solely for your personal use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: access and use the Site.
2.2 Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not:
a. reproduce, distribute, publicly display, or publicly perform the Site; make modifications to the Site; or interfere with or circumvent any feature of the Site, including any security or access control mechanism.
b. use any "deep-link", "page-scrape", "robot", "spider" or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Site or any Materials, or in any way reproduce or circumvent the navigational structure or presentation of the Site or any Materials, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Site. Plume reserves the right to bar any such activity.
c. attempt to gain unauthorized access to any portion or feature of the Site, or any other systems or networks connected to the Site or to any Plume server, or to any of the services offered on or through the Site, by hacking, password "mining" or any other illegitimate means.
d. probe, scan or test the vulnerability of the Site or any network connected to the Site, nor breach the security or authentication measures on the Site or any network connected to the Site.
e. reverse look-up, trace or seek to trace any information on any other user of or visitor to the Site, or any other customer of Plume, including any Plume account not owned by you, to its source, or exploit the Site or any service or information made available or offered by or through the Site, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than your own information, as provided for by the Site.
f. take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site or Plume's systems or networks, or any systems or networks connected to the Site or to Plume.
g. use any device, software or routine to interfere or attempt to interfere with the proper working of the Site or any transaction being conducted on the Site, or with any other person's use of the Site.
h. may not forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal you send to Plume on or through the Site or any service offered on or through the Site.
i. pretend that you are, or that you represent, someone else, or impersonate any other individual or entity.
j. use the Site or any Materials for any purpose that is unlawful or prohibited by these Terms, or to solicit the performance of any illegal activity or other activity which infringes the rights of Plume or others.
2.3 Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Site ("Feedback"), then you hereby grant Plume an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Site and create other products and services.
3. THIRD PARTY TERMS.
3.1 Third Party Sites and Linked Websites. Plume may provide tools through the Site that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on Plume with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as "like" or "share" buttons). By using one of these tools, you agree that Plume may transfer that information to the applicable third party service. Third party services are not under Plume's control, and, to the fullest extent permitted by law, Plume is not responsible for any third party service's use of your exported information. The Site may also contain links to third party websites. Linked websites are not under Plume's control, and Plume is not responsible for their content.
4. USER CONTENT.
4.1 User Content Generally. Certain features of the Site may permit users to upload content to the Site, including messages, reviews, photos, video, images, folders, data, text, and other types of works ("User Content") and to publish User Content on the Site. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Site.
4.2 Limited License Grant to Plume. By providing User Content to or via the Site, you grant Plume a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
4.3 Limited License Grant to Other Users. By providing User Content to or via the Site to other users of the Site, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Site.
4.4 User Content Representations and Warranties. Plume disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Site. By providing User Content via the Site, you affirm, represent, and warrant that:
a. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Plume and users of the Site to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Plume, the Site, and these Terms;
b. your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Plume to violate any law or regulation; and
c. your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
4.5 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Plume may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Site you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Plume with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Plume does not permit copyright-infringing activities on the Site.
5. DIGITAL MILLENNIUM COPYRIGHT ACT.
5.1 DMCA Notification.
We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Site, you may contact our Designated Agent at the following address:
Any notice alleging that materials hosted by or distributed through the Site infringe intellectual property rights must comply include the following information:
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
b. a description of the copyrighted work or other intellectual property that you claim has been infringed;
c. a description of the material that you claim is infringing and where it is located on the Site;
d. your address, telephone number, and email address;
e. a statement by you that you have a good faith belief that the use of the materials on the Site of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
f. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
5.2 Repeat Infringers. We will promptly terminate without notice the accounts of users that we determine by are "repeat infringers." A repeat infringer is a user who has been notified of infringing activity more than twice or has had user content (e.g., Comments) removed from the Service more than twice.
6.1 Terms. We reserve the right to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Site. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 6, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
6.2 Site. Plume reserves the right to modify or discontinue the Site at any time (including by limiting or discontinuing certain features of the Site), temporarily or permanently, without notice to you. Plume will have no liability for any change to the Site or any suspension or termination of your access to or use of the Site.
To the fullest extent permitted by law, you are responsible for your use of the Site, and you will defend and indemnify Plume and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the "Plume Entities") from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys' fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Site; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
8. DISCLAIMERS; NO WARRANTIES.
THE SITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SITE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. Plume DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SITE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. Plume DOES NOT WARRANT THAT THE SITE OR ANY PORTION OF THE SITE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SITE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND Plume DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SITE OR Plume ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SITE WILL CREATE ANY WARRANTY REGARDING ANY OF THE Plume ENTITIES OR THE SITE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SITE AND YOUR DEALING WITH ANY OTHER SITE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SITE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SITE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Plume does not disclaim any warranty or other right that Plume is prohibited from disclaiming under applicable law.
9. LIMITATION OF LIABILITY.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE PLUME ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SITE OR ANY MATERIALS OR CONTENT ON THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY Plume ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 10.4 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE Plume ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SITE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO PLUME FOR ACCESS TO AND USE OF THE SITE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM (but not including the purchase price for any PRODUCTS OR SUBSCRIPTION SERVICES); OR (B) $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
10. DISPUTE RESOLUTION AND ARBITRATION.
10.1 Generally. In the interest of resolving disputes between you and Plume in the most expedient and cost effective manner, and except as described in Section 10.2, you and Plume agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND Plume ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
10.2 Exceptions. Despite the provisions of Section 10.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
10.3 Arbitrator. Any arbitration between you and Plume will be settled under the Federal Arbitration Act and administered by the American Arbitration Association ("AAA") under its Consumer Arbitration Rules (collectively, "AAA Rules") as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Plume. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding.
10.4 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail ("Notice of Arbitration"). Plume's address for Notice is: Plume Legal, 290 S. California Ave #200, Palo Alto, CA 94306. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Plume may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Plume must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Plume in settlement of the dispute prior to the award, Plume will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
10.5 Fees. If you commence arbitration in accordance with these Terms, Plume will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Plume for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
10.6 No Class Actions. YOU AND PLUME AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Plume 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.
10.7 30-Day Opt-Out Period. If you do not wish to be bound by the arbitration and class-action waiver provisions in this Section 10, you must notify Plume in writing within 30 days of the date that you first accept these Terms (unless a longer period is required by applicable law). Your written notification must be mailed to Plume at the following address: Plume Legal, 290 S. California Ave #200, Palo Alto, CA 94306. Subject to Section 10.9 below, if you do not notify Plume in accordance with this Section 10.8, you agree to be bound by the arbitration and class-action waiver provisions of these Terms, including such provisions in any Terms revised after the date of your first acceptance. Such notification must include: (a) your name, (b) the email address associated with your Plume account, (c) your mailing address, and (d) a statement that you do not wish to resolve disputes with Plume through arbitration. This notification affects these Terms only; if you previously entered into other arbitration agreements with Plume or enter into other such agreements in the future, your notification that you are opting out of the arbitration provision in these Terms shall not affect the other arbitration agreements between you and Plume.
10.8 Modifications to this Arbitration Provision. If you do not wish to be bound by the arbitration and class-action waiver provisions in this Section 10, you must notify Plume in writing within 30 days of the date that you first accept these Terms (unless a longer period is required by applicable law). Your written notification must be mailed to Plume at the following address: Plume Legal, 290 S. California Ave #200, Palo Alto, CA 94306. Subject to Section 10.9 below, if you do not notify Plume in accordance with this Section 10.8, you agree to be bound by the arbitration and class-action waiver provisions of these Terms, including such provisions in any Terms revised after the date of your first acceptance. Such notification must include: (a) your name, (b) the email address associated with your Plume account, (c) your mailing address, and (d) a statement that you do not wish to resolve disputes with Plume through arbitration. This notification affects these Terms only; if you previously entered into other arbitration agreements with Plume or enter into other such agreements in the future, your notification that you are opting out of the arbitration provision in these Terms shall not affect the other arbitration agreements between you and Plume.
10.9 Enforceability. If Section 27 is found to be unenforceable or if the entirety of this Section 21 is found to be unenforceable, then the entirety of this Section 21 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 31 will govern any action arising out of or related to these Terms.
11.2 Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Plume submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara, California, for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Site from our offices in Palo Alto, California, and we make no representation that Materials included in the Site are appropriate or available for use in other locations.
11.4 Additional Terms. Your use of the Site is subject to all additional terms, policies, rules, or guidelines applicable to the Site or certain features of the Site that we may post on or link to from the Site (the "Additional Terms"). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
11.6 Contact Information. The Site is offered by Plume Design, Inc., located at 290 S. California Ave #200, Palo Alto, CA 94306. You may contact us by sending correspondence to that address or by emailing us at [email protected].
11.7 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Site or to receive further information regarding use of the Site.
11.8 No Support. We are under no obligation to provide support for the Site. In instances where we may offer support, the support will be subject to published policies.