Terms of Service

Shakd, LLC Terms of Service

IMPORTANT – READ THE FOLLOWING CAREFULLY BEFORE USING OUR SERVICE.

Thank you for using our Service. These Terms of Service govern your visit, use, and interactions with our mobile applications and any website related or similar to our mobile applications.

By accessing, browsing or using our Service, you become a “Visitor”. Your accessing, browsing or using this Service constitutes your agreement to all terms, conditions, and notices, and any changes to the Terms of Service made by Shakd Apps.

In order to access certain aspects of the Service or perform certain functions you will have to register and become a “Member” of our Service. By clicking “GET STARTED”, you confirm that you have read these Terms of Service, that you understand them, and that you agree to be bound by them.

Shakd, LLC (“Shakd Apps”, “we”, or “us”) offers this mobile application, including all information, software, website or websites, products and services available from this mobile application or offered as part of or in conjunction with this mobile application (collectively, the “Service”), to you, the user, (“you”, “user”, “Visitor” or “Member”, as appropriate) conditioned upon your acceptance of all of the terms, conditions, policies and notices stated here (the “Terms of Service”). Shakd Apps reserves the right to make changes to these Terms of Service immediately by posting the changed Terms of Service in this location. We will provide notice of any changes to these Terms of Service on our website; however, it is your responsibility to periodically check these Terms of Service for changes.

FINALLY, THESE TERMS AND CONDITIONS CONTAIN A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER AT SECTION 18 THAT IMPACT YOUR RIGHTS ABOUT HOW TO RESOLVE DISPUTES. PLEASE READ CAREFULLY.

Overview of Service. Shakd Apps has provided the Service to facilitate your ability to more strongly understand and ultimately use your Instagram account. The Services perform the functions, complete the tasks, and provide the information described in the description of the mobile application you are using, as amended from time to time. You understand that our Service and the function of the Service, which may generally be described as online marketing and social media presence management for instagram, are inherently fluid by their nature. Accordingly, Shakd Apps cannot guarantee specific results, only the execution of agreed upon services. Further, you understand that in the course implementing any ideas you develop in reliance on the Services there may be short term declines in performance of your online presence, email, social media platforms, or Service (collectively, “Client Properties”), that these are to be expected, and that Shakd Apps cannot control nor guarantee success to your endeavors nor any particular result.

Member Account, Password and Security. In order to use the Service, you may sign in using your Instagram login (your “Credentials”). If you do so, you authorize us to access and use certain Instagram account information, including but not limited to your public Instagram profile, your posts, and information about your connections to other Instagram users. You are entirely responsible for maintaining the confidentiality of account and Credentials. Furthermore, User is entirely responsible for any and all activities that occur under User’s account. User agrees to notify Shakd Apps immediately of any unauthorized use of User’s account or any other breach of security. Shakd Apps will not be liable for any loss that User may incur as a result of someone else using User’s password or account, either with or without User’s knowledge. However, User could be held liable for losses incurred by Shakd Apps or another party due to someone else using User’s account or password. User may not use anyone else’s account at any time, without the permission of the account holder.

License. Subject to your compliance with these conditions, Shakd Apps grants to you a limited, non-transferable, non-exclusive license to use the Service on any mobile device or computer owned, leased, and/or controlled by you. This license is not a sale of the original Service or any copies. All rights not expressly granted to you are reserved and retained by Shakd Apps. No Service, nor any part of Service, may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of Shakd Apps. You may make single copies of materials displayed on the Service for your own personal and noncommercial use only, provided any copies include the copyright and other notices displayed with the materials on the Service.

Personal and Noncommercial Use. The Service is for your personal and noncommercial use related to your personal or business Instagram use. Commercial use including, but not limited to, using our Service to provide social media consulting or similar services to third parties, is expressly prohibited. As a condition to your continued use of the Service, you warrant to Shakd Apps that you will not use the Service for any purpose that is unlawful or prohibited by these Terms of Service of use.

Subscriptions & Fees.

If your use of the Service is through one of our paid applications (as of the date of this Agreement: (i) Command Analytics for Instagram, and (ii) Manager for Instagram), then this Section 5 shall apply. We reserve the right to make changes to which of our applications are paid or free, in our sole discretion. You will receive notice from us at least 7 days prior to any application becoming paid. General. We bill you through an online account (your “Billing Account”) for use of the Service. You agree to pay Shakd Apps all charges at the price then in effect for any use of the Service by your or any other persons using your Billing Account, and you authorize Shakd Apps to charge your chosen payment provider (your “Payment Method”) for the Service. You agree to make payment using that selected Payment Method. Shakd Apps reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment. Recurring Billing. Most subscription plans to the Service consist of an initial period, for which there is a one time charge, followed by recurring period charges as agreed to by you. By entering into these Terms, you acknowledge that that your subscription has an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. A third party (e.g. Apple) may manage your subscription (together with Shakd Apps, your “Subscription Manager”). The Subscription Manager may submit period charges (e.g. monthly) without further authorization from you, until you provide prior notice (confirmed in writing upon request by the Subscription Manager) that you have terminated this authorization or wish to change your payment method. Such notice will not affect charges submitted before your Subscription Manager could reasonably act. To terminate your authorization or change your payment method, go to https://support.apple.com/en-us/HT202039. Current Information Required. You must provide current, complete, and accurate information for your Billing Account. You must promptly update all information to keep your billing account current, complete and accurate (such as a change in billing address, credit card number, or credit card expiration date), and you must promptly notify your Subscription Manager if your Payment Method is cancelled (e.g. for theft or loss) or if you become aware of a potential breach of security, such as the unauthorized disclosure or use of your Credentials. Changes to such information can be made at https://appleid.apple.com. If you fail to provide your Subscription Manager any of the foregoing information, you agree that your Subscription Manager may continue charging you for any use of the Service under your Billing Account unless you have terminated your subscription for the Service (confirmed in writing by you upon request by your Subscription Manager). Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between your and the financial institution, credit card issuer, or other provider of your chosen Payment Method (the “Payment Method Provider”). If Shakd Apps does not receive payment from your Payment Method Provider, you agree to pay all amounts due on your Billing Account upon demand. Change in Amount Authorized. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and your Subscription Manager shall provide, notice of the amount to be charged and the date of the charge at least 10 days before the scheduled date of the transaction. Any agreement you have with your Payment Method Provider will govern your use of your Payment Method. You agree that your Subscription Manager may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle. Auto-Renewal. Your Service subscription will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional subscription rate. To change or resign your subscription at any time, go to https://support.apple.com/en-us/HT202039. If you resign, you may use your subscription until the end of your then current subscription term; your subscription will not be renewed after your then current term expires. However, you won’t be eligible for a prorated refund of any portion of the subscription fee paid for the then current subscription period. Reaffirmation of Authorization. Your non-termination or continued use of the Service reaffirms that your Subscription Manager is authorized to charge your Payment Method. Your Subscription Manager may submit those charges for payment and you will be responsible for such charges. This does not waive Shakd Apps right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially subscribed to the Service. Free Trials and Other Promotions. Any free trial or other promotion that provides subscriber-level access to the Service must be used within the specified time of the trial. You must cancel your subscription before the end of the trial period in order to avoid being charged a subscription fee. If you cancel prior to the end of the trial period and are inadvertently charged for a subscription, please visit https://support.apple.com/en-us/HT202039 to have the charges reversed. Refunds. Any and all refunds will be processed in accordance with the terms of this Section 5 and the process and policy set forth by the third party application marketplace (e.g. the Apple App Store) from which you purchased your subscription.

Featured Links. The Service may contain hyperlinks to services, websites, and content offered by parties other than Shakd Apps. Such hyperlinks are provided for your reference and convenience only. Shakd Apps does not control such third parties and is not responsible for their content; nor does Shakd Apps’ inclusion of hyperlinks to such services, websites, or content imply any endorsement of the material on such services, websites, or content or any association with their operators. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including information providers, Users or any other User of Service, are those of the respective author(s) or distributor(s) and not of Shakd Apps. Neither Shakd Apps nor any third party provider of information guarantees the accuracy, completeness, or usefulness of any content, nor its merchantability or fitness for any particular purpose. In some instances, the content available through Service represents the opinions and judgments of the respective information provider, User, or other person not under contract with Shakd Apps. Shakd Apps neither endorses nor is responsible for the accuracy or reliability of any opinion, advice or statement made on Service by anyone other than authorized Shakd Apps employee spokespersons while acting in their official capacities. Under no circumstances will Shakd Apps be liable for any loss or damage caused by a User’s reliance on information obtained through Service. It is the responsibility of User to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other content available through Service.

Copyrights. All material content included in or made available through the Service, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, software, HTML code, Java applets, Active X controls and other code, is the property of Shakd Apps and protected by United States and international copyright laws. The compilation of all content included in or made available through the Service is the exclusive property of Shakd Apps and protected by U.S. and international copyright laws. The Service, related documentation, and all intellectual property rights embodied within or derived from such Service are copyrighted works of authorship or proprietary materials exclusively owned by Shakd Apps. Shakd Apps retains ownership of all subsequent copies of the Service and all derivative works based on such Service. All other content not owned by Shakd Apps that appears on the Service appears with the permission of its respective owners and is the property of such respective owners, who may or may not be affiliated with, connected to, or sponsored by Shakd Apps.

Trademarks. In addition, graphics, logos, slogans, page headers, button icons, scripts, and service names included in or made available through the Service are trademarks or trade dress of Shakd Apps in the U.S. and other countries. Shakd Apps’s trademarks and trade dress may not be used in connection with any product or service that is not property of Shakd Apps, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Shakd Apps. All other trademarks not owned by Shakd Apps that appear on the Service appear with the permission of their respective owners and are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Shakd Apps.

Prohibited Activities. Except as otherwise expressly provided in these Terms of Service, you may not copy, distribute, transmit, display, perform, reproduce, publish, license, modify, rewrite, create derivative works from, transfer, or sell any material contained on the Service without the prior consent of the copyright owner. None of the material contained on Shakd Apps Service may be translated, reverse-engineered, disassembled, decompiled, transcribed, stored in a retrieval system, translated into any language or computer language, retransmitted in any form or by any means (electronic, mechanical, photo reproduction, recordation or otherwise), resold or redistributed without the prior written consent of Shakd Apps. You may not use, copy, or modify the Service or any copy in whole or in part, including any print-out or modification of the source or object codes, except as expressly provided in this Agreement. You may not disclose, display, communicate, or otherwise permit the use of the Service by or to any third party for any purpose. You are prohibited from using the Service to provide analytics or any other service to any third party or otherwise process the data of any third party. This limitation does not restrict your ability use the Service to research and understand data and content created or shared by others on Instagram. You hereby waive any rights granted by the Digital Millennium Copyright Act to decompile the Service or any portion thereof to identify or analyze the interoperability of the Service. You shall not harvest or otherwise collect information about others users, including, but not limited to email addresses or any other identifying information or information related to contacting users. Further, You may not contact our Members for the purpose of enticing them to terminate their relationship with Shakd Apps or enter a business relationship with You to Shakd Apps’s detriment.

Disclaimer of Warranty, Limitation of Liability. THE SERVICE AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) AND OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICE ARE PROVIDED BY SHAKD APPS ON AN “AS IS” AND “AS AVAILABLE” BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. SHAKD APPS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICE, OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICE, UNLESS OTHERWISE SPECIFIED IN WRITING. WE DISCLAIM ALL AND MAKE NO REPRESENTATIONS OR WARRANTIES, OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE QUALITY, IDENTITY, OR RELIABILITY OF ANY INFORMATION PROVIDED THROUGH THE SERVICE. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. NEITHER SHAKD APPS, ITS AFFILIATES NOR ANY OF THEIR REPSECTIVE EMPLOYEES OR AGENTS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE, OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE, OR MERCHANDISE PROVIDED OR ACCESSED THROUGH THE SERVICE. NO REPRESENTATIVE OF SHAKD APPS IS AUTHORIZED TO GIVE OR MAKE ANY OTHER REPRESENTATION OR WARRANTY OR MODIFY THIS AGREEMENT IN ANY WAY. SHAKD APPS DOES NOT WARRANT THAT THE SERVICE, INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICE, SHAKD APPS’S SERVERS OR ELECTRONIC COMMUNICATIONS SENT FROM SHAKD APPS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SHAKD APPS WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF ANY SERVICE, OR FROM ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH ANY SERVICE, OR FROM ANY SERVICES RECEIVED FROM OR OTHER INTERACTION WITH AN ADVERTISER LISTED ON THE SERVICE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SHAKD APPS EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, AS WELL AS ALL WARRANTIES ARISING BY USAGE OR COURSE OF PERFORMANCE.

Eligibility Criteria. You hereby represent and warrant that You are thirteen (13) years of age or older at the time of using the Service. Our Service is not intended to use by persons under the age of thirteen (13). Entrants under eighteen (18) years of age affirm that you fully able and competent to enter into the provisions set out under the Terms of Service and that you possess the permission of a parent or legal guardian who has read and agreed to these Terms of Service, and who is fully responsible for the conduct and activities of the minor, including any and all legal liability that he or she may incur.

Termination of Privileges. Shakd Apps reserves the right to terminate your privilege of using all or any portion of the Service if you breach any of these Terms of Service of use. If Shakd Apps notices or otherwise discovers that you have posted material that infringes another party’s copyright or trademark rights or violates another party’s rights of privacy or publicity, Shakd Apps may terminate your access to the Service, including all of your privileges or accounts that you may have established in connection with the Service. All payments will be treated as described in Section 5 above.

Indemnity. You agree to defend, hold harmless, and indemnify Shakd Apps, our Affiliates, our and their respective officers, members, directors, owners, employees, attorneys, agents, joint ventures, and our and their respective successors and assigns (each such party an “Indemnified Party”) from and against any and all losses, costs, expenses, damages, and other liabilities (including reasonable attorneys’ fees and costs) incurred by an Indemnified Party arising from or related to any cause of action, claim, suit, proceeding, demand, or action brought by a third-party against an Indemnified Party in connection with your use of the Service Services, including: (a) your: (i) use of the Service; (ii) decision to supply information via the Service; (iii) decision to use information obtained through the Service; (iv) breach of any provision of this Agreement or other Terms applicable to Your use of the Service; or (v) obligations to another user of the Service (without regard to how such obligation arose); (b) any claim, whether based in tort or contract, you may have against another user or that another user may have against you; or (c) anything which the Indemnified Party may do or refrain from doing in connection with this Agreement and the Terms of Service. The foregoing indemnity will include, without limitation, such cause of action, claim, suit, proceeding, demand, or action arising out of the negligence of any Indemnified Party; provided that the foregoing indemnification will not extend to the gross negligence or willful misconduct of an Indemnified Party.

General. All Users hereby agree to our Privacy Policy. Shakd Apps retains all rights not expressly granted herein. Shakd Apps may freely assign these Terms of Service. These Terms of Service are the complete and exclusive agreement of the parties and supersede all prior communications, oral or written, between the parties relating to the Terms of Service’ subject matter. Without regard to its conflicts of laws principles, the laws of the State of New Jersey govern all matters, including torts, with respect to these Terms of Service. Further, any claim, controversy, or dispute that arises between You and Shakd Apps must be resolved exclusively by a state or federal court located in the State of New Jersey, unless Section 18 applies. You and Shakd Apps agree to submit to the personal jurisdiction of the courts located within the State of New Jersey for the purpose of litigating all such claims, controversies, or disputes. These Terms of Service are severable, and in the event any provision is determined to be invalid or unenforceable, such invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions. Shakd Apps reserves the right to make changes to these Terms of Service immediately by posting the changed Terms of Service in this location. By continuing to use the Service, you are agreeing to all changes made by Shakd Apps. A printed version of these Terms of Service shall be admissible in judicial or administrative proceedings based upon or relating to use of the Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

Changed Terms. Shakd Apps shall have the right at any time to change or modify the Terms of Service applicable to Member’s use of Service, or any part thereof, or to impose new conditions, including, but not limited to, adding fees and charges for use. Such changes, modifications, additions or deletions shall be effective immediately upon notice thereof, which may be given by means including, but not limited to, posting on Service, or by electronic or conventional mail, or by any other means by which Member obtains notice thereof. Any use of Service by You after such notice shall be deemed to constitute Your acceptance of such changes, modifications or additions.

This Agreement is for the benefit of Shakd Apps, its subsidiaries, affiliates, and licensors and each shall have the right to assert and enforce such provisions directly or on its own behalf.

Titles, comments to, and headings of sections of this Agreement are for convenience of reference only and shall not affect the construction of any provision of this Agreement.

PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH SHAKD APPS AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.

Arbitration Agreement; Claims. This Section 18 is referred to as the “Arbitration Agreement” in these Terms. Unless you opt out of the Arbitration Agreement in accordance with the procedure described in Section 18(i) below, you and Shakd Apps (together, the “Parties”) agree that any and all disputes or claims that arise between you and Shakd Apps relating to the Shakd Apps Service and/or these Terms (including any alleged breach of these Terms) (collectively, “Claims”), except for Excluded Claims (defined in the following sentence), will be resolved as set forth in this Arbitration Agreement. As used herein, “Excluded Claims” means (1) individual claims brought in small claims court (if your claims qualify), (2) claims in which either party seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property (including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents), and (3) claims that, as a matter of applicable law, cannot be made subject to arbitration.

Agreement to Arbitrate. Unless you opt out of the Arbitration Agreement in accordance with the procedure described in Section 18(i) below, you agree that any and all Claims (other than Excluded Claims) will be resolved exclusively on an individual basis through final and binding arbitration, rather than in a court, in accordance with this Arbitration Agreement, and your rights in connection with all Claims (other than Excluded Claims) will be determined by a neutral arbitrator, not by a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To the extent that the Parties’ dispute involves both timely filed Excluded Claims and other Claims subject to this Agreement, the Parties agree to bifurcate and stay for the duration of the arbitration proceedings any such Excluded Claims.

Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND SHAKD APPS AGREE THAT, UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT IN ACCORDANCE WITH SECTION 18(i) BELOW, EACH OF US MAY BRING CLAIMS (EXCEPT TO THE EXTENT THAT THE RIGHT TO BRING A CLAIM IN A PURPORTED CLASS OR REPRESENTATIVE ACTION CANNOT BE WAIVED AS A MATTER OF LAW) AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND SHAKD APPS AGREE OTHERWISE (OR TO THE EXTENT THAT THE RIGHT TO BRING A CLAIM IN A PURPORTED CLASS OR REPRESENTATIVE ACTION CANNOT BE WAIVED AS A MATTER OF LAW), THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER SHAKD APPS USERS.

Pre-Arbitration Dispute Resolution. Before you commence arbitration, we suggest that you contact us to explain your complaint. Our preference will always be to resolve complaints amicably and efficiently, without the need for arbitration. You may contact us via email at Shakd Apps, Attn: Legal, zach@shakd.io. If the issue is not resolved and results in arbitration, we will need to mutually select and agree upon an arbitrator and the rules and procedures to govern the arbitration.

Arbitration Procedures. The Parties will try in good faith to mutually select and agree upon an arbitrator and rules and procedures to govern the arbitration. If we cannot agree, then the arbitration will be conducted by a neutral arbitrator in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”), as modified by this Arbitration Agreement. The rules that apply are those in effect when arbitration is demanded by either of the Parties. For information on JAMS, please visit its Service, https://www.jamsadr.com/. The JAMS Streamlined Arbitration Rules and Procedures are available at www.jamsadr.com/rules-streamlined-arbitration, which are incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and any claim that the JAMS Rules are unfair or should not apply for any reason. If there is any inconsistency between the JAMS Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would, including without limitation, the limitation of liability provisions in Section 17. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms and applicable law. The arbitrator shall submit a decision in writing, specifying the findings of fact and the conclusions of law on which the decision is based. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.

The arbitration will be held in the county in which Shakd Apps’s principal offices are located. If the value of the relief sought is $10,000 or less, you or Shakd Apps may elect to have the arbitration conducted by telephone or based solely on written submissions, which election will be binding on you and Shakd Apps subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by you and/or Shakd Apps, unless the arbitrator requires otherwise.

The arbitrator will decide the substance of all claims in accordance with the laws of the Commonwealth of Virginia, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator will not be bound by rulings in prior arbitrations involving different Shakd Apps users, but is bound by rulings in prior arbitrations involving the same Shakd Apps user to the extent required by applicable law. As limited by the Federal Arbitration Act, these Terms and the applicable JAMS Rules, the arbitrator will have (1) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Claim, including the determination of whether a Claim is arbitrable, and (2) the authority to grant any remedy that would otherwise be available in court.

Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be shared equally by you and Shakd Apps, except where prohibited by applicable law. In addition, (1) if you demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Shakd Apps will pay your portion of such fees, and (2) if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Shakd Apps will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Each party will be solely responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Shakd Apps for all fees associated with the arbitration paid by Shakd Apps on your behalf that you otherwise would be obligated to pay under the JAMS Rules.

Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.

Severability. If any term, clause or provision of this Section 18 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 18 will remain valid and enforceable.

Opt-Out Procedure. You can choose to reject this Arbitration Agreement by mailing us a written opt-out notice (“Opt-Out Notice”) in accordance with the terms of this Section 18(i). For new Shakd Apps users, the Opt-Out Notice must be postmarked no later than 30 days after the date you accept these Terms for the first time. If you are already a current Shakd Apps user and previously accepted the Shakd Apps Terms, the Opt-Out Notice must be postmarked no later than December 31, 2017. You must send the Opt-Out Notice to Shakd Apps, Attn: Legal, zach@shakd.io. The Opt-Out Notice must state that you do not agree to the Arbitration Agreement and must include your name, address, phone number, and the email address(es) used to register for the Shakd Apps Service 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 Arbitration Agreement. If you opt out of the Arbitration Agreement, the entire Arbitration Agreement will not apply with respect to you, but the remainder of these Terms will continue to apply. Opting out of this Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with us. By opting out of binding arbitration, you are agreeing to resolve Claims (including Excluded Claims) in accordance with Section 14.

Future Changes to this Arbitration Agreement. Notwithstanding any provision in these Terms to the contrary, you agree that if we make any change to this Arbitration Agreement (other than a change to any notice address or Service link provided herein) in the future, that change will not apply to any claim that was filed in a legal proceeding against Shakd Apps prior to the effective date of the change. Moreover, if we terminate this Arbitration Agreement by removing it from these Terms, such termination will not be effective until 30 days after the version of these Terms not containing the Arbitration Agreement is posted to the Site, and will not be effective as to any claim that was filed in a legal proceeding against Shakd Apps prior to the effective date of removal.