BLINKAI TERMS OF USE
Last Updated: [ March 20, 2024]
These terms of use (the “Terms of Use”) explains the terms under which you may use the websites and online services offered by BlinkAI,Inc. (“Blink AI” or “we”),including all content, features, pages, software, and applications found thereon or provided in connection therewith (collectively, the “Site”).By accessing or using the Site, or by clicking a button or checking a box marked “I Agree” (or something similar), you signify that you have read, understood, and agree to be bound by: (i) these Terms and(ii) our Privacy Policy https://www.blinkai.com/privacy-policy (our “Privacy Policy”) (collectively these “Terms”). These Terms apply to all visitors, users, and others who access the Site (“Users”), including you individually or, if you are accepting these Terms on behalf of a company or other legal entity, that legal entity, and any person acting as your agent, under your authority, or with your permission (“you”).
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTANDEACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATIONPROVISION IN SECTION 1 (THE “ARBITRATIONAGREEMENT”) AND A CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION1.7 (THE “CLASSACTION/JURY TRIAL WAIVER”) THAT REQUIRE, UNLESS YOU OPT OUT PURSUANTTO THE INSTRUCTIONS IN SECTION 1.2, THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON ANINDIVIDUAL BASIS TO RESOLVE DISPUTES BETWEEN YOU AND BLINKAI, INCLUDING ANYCLAIMS THAT AROSE OR WERE ASSERTED BEFORE YOU AGREED TO THESE TERMS. TO THEFULLEST EXTENT PERMITTED BY LAW, YOU EXPRESSLY WAIVE YOUR RIGHT TO SEEK RELIEFIN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS, AS WELL AS YOURRIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, COLLECTIVE,PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE ACTION OR PROCEEDING.
1.1. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND BLINKAITO ARBITRATE DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM BLINKAI. This Section 1 (the “Arbitration Agreement”) applies to and governs any dispute, controversy, or claim between you and BlinkAI that arises out of or relates to, directly or indirectly: (a) these Terms, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (b) access to or use of the Site, including receipt of any advertising or marketing communications; (c) any transactions through, by, or using the Site; or (d) any other aspect of your relationship or transactions with BlinkAI, directly or indirectly, as a consumer (“Claim” or collectively, “Claims”).The Arbitration Agreement shall apply, without limitation, to all Claims that arose or were asserted before or after your agreement to these Terms.
1.2. If you are a new user of the Site, you can reject and opt-out of this Arbitration Agreement within 30 days of accepting these Terms by emailing BlinkAI at privacy@blinkai.com with your first and last name and clearly stating your intent to opt-out of the Arbitration Agreement. Note that opting out of this Arbitration Agreement does not affect any other part of these Terms, including the provisions regarding controlling law or in which courts any Claims must be brought, and has no effect on any previous, other, or future arbitration agreements that you may have with us.
1.3. For any Claim, you agree to first contact us at privacy@blinkai.com and attempt to resolve the Claim with us informally. In the unlikely event that BlinkAI has not been able to resolve a Claim after sixty (60) days, we each agree to resolve the Claim exclusively through binding arbitration by the American Arbitration Association (“AAA”) before a single arbitrator (the “Arbitrator”),under the Expedited Procedures then in effect for AAA (the “Rules”), except as provided herein. In the event of any conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement shall control. AAA may be contacted at www.adr.org, where the Rules are also available, or by calling 1-800-778-7879. A party who desires to initiate an arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the Rules. AAA provides a form Demand for Arbitration at www.adr.org. You can contact AAA for more information on how to commence an arbitration proceeding at www.adr.org or 1-800-778-7879.
1.4. The arbitration will be conducted in the U.S. county where you live or in Austin, Texas, USA unless you and BlinkAI agree otherwise. If you are using the Site for commercial purposes, each party will be responsible for paying any AAA filing, administrative, and arbitrator fees in accordance with the Rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees, and reasonable costs for expert and other witnesses. If you are an individual using the Site for non-commercial purposes:(i) AAA may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from AAA; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the Arbitrator may be entered in any court of competent jurisdiction. You and BlinkAI agree that the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms or any provision of these Terms, are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel.
1.5. Nothing in this Section shall be deemed as (a) preventing BlinkAI from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, non-circumvention, intellectual property rights or other proprietary rights or (b) preventing you from asserting claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances on only an individual (non-class, non-representative) basis.
1.6. If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, shall be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, shall have no impact on the remaining provisions of the Arbitration Agreement (which shall remain in force) or BlinkAI’s or your ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement. Notwithstanding the foregoing, if the Class Action/Jury Trial Waiver is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief(and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement shall be arbitrated under its terms, and you and we agree that litigation of any dispute regarding the entitlement to public injunctive relief shall be stayed pending the outcome of any individual claims in arbitration.
1.7. Class Action/Jury Trial Waiver
WITHRESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINEDOR USED THE SITE FOR PERSONAL, COMMERCIAL, OR OTHER PURPOSES, ALL CLAIMS MUSTBE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASSMEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEYGENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TOCLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOTCONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AND BLINKAI AGREE THAT THEARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THEEXTENT NECESSARY TO PROVIDE RELIEF ON YOUR INDIVIDUAL CLAIM(S). ANY RELIEFAWARDED MAY NOT AFFECT OTHER BLINKAI USERS. YOU AND BLINKAI FURTHER AGREE THAT,BY ENTERING INTO THIS ARBITRATION AGREEMENT, YOU AND BLINKAI ARE EACH WAIVINGTHE RIGHT TO A TRIAL BY JURY OR TO BRING, JOIN, OR PARTICIPATE IN A CLASSACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHERREPRESENTATIVE PROCEEDING OF ANY KIND AS A PLAINTIFF OR CLASS MEMBER.
1.8. Notwithstanding the provisions of this Arbitration Agreement, if we change any of the terms of this Arbitration Agreement after the date you first accepted these Terms (or accepted any subsequent changes to them), you may reject any such change by providing us with written notice of such rejection within thirty (30) days after the date such change became effective, as indicated in the “Last Updated” date above. This written notice must be provided by email to privacy@blinkai.comwith your first and last name and clearly stating your intent to reject changes to this Arbitration Agreement. By rejecting changes, you are agreeing that you will arbitrate any Claim between you and us in accordance with the provisions of this Arbitration Agreement as of the date you first agreed to these Terms(or to any subsequent changes to these Terms).
2. Our Site
2.1. Eligibility
This is a contract between you and BlinkAI. You must read and agree to these Terms before using the Site. If you do not agree, you may not use the Site. You may use the Site only if you can form a binding contract with BlinkAI, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Site by anyone under13 is strictly prohibited and in violation of these Terms. If you are accessing the Site on behalf of an entity, you hereby agree to these Terms on your behalf and on behalf of such entity. If you are under 18, you may only use the Site if your parent or legal guardian has consented to these Terms on your behalf. If you are a parent or legal guardian of a User under the age of 18, by allowing your child to use our Site, you are subject to these Terms and responsible for your child’s activity on our Site. The Site is not available to any Users previously removed from the Site by BlinkAI.
2.2. Limited License
So long as you comply with these Terms and applicable law, we hereby grant you a non-exclusive, limited, non-transferable, freely revocable license to access and use the Site for your internal or personal use only and only as permitted by these Terms. BlinkAI reserves all rights not expressly granted herein in the Site and the BlinkAI Content (defined below). BlinkAI may terminate this license at any time for any reason or no reason.
2.3. User Accounts
If you are using the Site on behalf of one of our automotive dealer customers (our “Customer”), in order to use certain features of the Site that we make available to our Customers, you must register for an account. Your account on the Site (your “User Account”) gives you access to those features of the Site. When registering for a User Account, you must provide true, accurate, and complete information and keep this information up to date. You must maintain and promptly update such information so that it is current at all times.
You may never use another User’s User Account without permission. You are solely responsible for the activity that occurs in connection with your use of the Site, including through your User Account, and you must keep your User Account password and other access information secure. You must notify BlinkAI immediately of any actual or suspected breach of security or unauthorized use of your User Account. BlinkAI will not be liable for any losses or damages caused by or arising from any unauthorized use of your User Account or your failure to comply with the above requirements.
You may control your User profile and how you interact with the Site by changing the settings in your settings page. By providing BlinkAI your email address, you consent to our using that email address to send you Site-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address and telephone number to send you other messages, such as changes to features of the Site and special offers. If you do not want to receive such email or text messages, you may opt out or change your preferences in your settings page. Opting out may prevent you from receiving email or text messages regarding updates, improvements, or offers. See Text Messaging below for further information about text messaging.
2.4. Site Rules
You will not (and will not permit any third party to),directly or indirectly, engage in any of the following activities: (i) copying, distributing, or disclosing any part of the Site in any medium, including by any automated or non-automated “scraping”; (ii) using any automated system, including “robots,” “spiders,” “offline readers,” etc., to access the Site in a manner that sends more request messages to the BlinkAI servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that BlinkAI grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Site; (v) taking any action that imposes, or may in our sole discretion impose an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Site; (vii) collecting or harvesting any personally identifiable information from the Site; (viii) using the Site for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, engaging in fraud, or hiding or attempting to hide your identity; (x) interfering with the proper working of the Site; (xi) accessing any content on the Site through any technology or means other than those provided or authorized by the Site; (xii)bypassing the measures we may use to prevent or restrict access to the Site, including features that prevent or restrict use or copying of any content;(xiii) using or framing any of our trademarks or other proprietary information;(xiv) using meta tags or any other “hidden text” using any of our trademarks;(xv) deciphering, decompiling, disassembling, reverse engineering, or otherwise attempting to derive any source code or underlying ideas or algorithms of the Site, except to the limited extent applicable laws specifically prohibit such restriction; (xvi) incorporating the Site or any portion thereof into any other program or product; (xvii) selling, reselling, copying, renting, leasing, loaning, or distributing the Site, in whole or in part, or charging any party for access to the Site; or (xviii) acting as an intermediary, aggregator, or service bureau yourself or on behalf of any third party.
2.5. Changes to the Site; Termination
We may, without prior notice, change the Site, stop providing the Site or features of the Site to you or to Users generally, or create usage limits for the Site. We may permanently or temporarily terminate or suspend your access to the Site without notice and liability for any reason, including if in our sole determination you violate any provision of these Terms, or for no reason. Upon termination for any reason or no reason, you continue to be bound by these Terms. You may terminate your relationship with BlinkAI at any time by contacting BlinkAI at privacy@blinkai.com.
2.6. Site Location
The Site is controlled and operated from facilities in the United States. BlinkAI makes no representations that the Site is appropriate or available for use in other locations. Those who access or use the Site from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including export and import regulations. You may not use the Site if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Site are solely directed to individuals, companies, or other entities located in the United States.
3. Our Proprietary Rights
The Site and all materials therein or transferred thereby, including software, data, information, images, text, graphics, logos, photographs, audio, videos, and music (the “BlinkAI Content”), and all intellectual property rights related thereto, are the exclusive property of BlinkAI and its licensors. Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or under any such intellectual property rights. Use of the BlinkAI Content for any purpose not expressly permitted by these Terms is strictly prohibited.
You may choose to, or we may invite you to, submit comments or ideas about the Site, including about how to improve the Site or our products (“Ideas”).By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place BlinkAI under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your Idea, BlinkAI does not waive any rights to use similar or related ideas previously known to BlinkAI, or developed by its employees, or obtained from sources other than you.
You acknowledge that you do not own the User Account you use to access the Site, nor do you possess any rights of access or rights to data stored by or on behalf of BlinkAI on BlinkAI servers, All data on BlinkAI’s servers are subject to deletion, alteration, or transfer. NOTWITHSTANDING ANYVALUE ATTRIBUTED TO SUCH DATA BY YOU OR ANY THIRD PARTY, YOU UNDERSTAND ANDAGREE THAT ANY DATA AND USER ACCOUNT HISTORY RESIDING ON BLINKAI’S SERVERS, MAYBE DELETED, ALTERED, MOVED, OR TRANSFERRED AT ANY TIME FOR ANY REASON IN BLINKAI’SSOLE DISCRETION, WITH OR WITHOUT NOTICE AND WITH NO LIABILITY OF ANY KIND. BLINKAIDOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS, ANY VALUE, CASH OROTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON BLINKAI’S SERVERS.
4. Text Messaging
If you are using the Site on behalf of a Customer, you expressly consent and agree that BlinkAI can contact you using written, electronic, or verbal means, including by manual dialing, emails, leaving prerecorded/artificial voice messages, or using an automatic telephone dialing system to call or text your mobile/cellular telephone number, as necessary to complete transactions requested by you on behalf of that Customer and to service your User Account and as the law allows, even if those phone numbers are registered by you on any federal or state Do-Not-Call/Do-Not-Email registry.
If you are using the Site on behalf of a Customer, we offer you the chance to enroll to receive recurring SMS/text messages from BlinkAI. You may enroll to receive text messages about account-related news and alerts and/or marketing and promotional offers for BlinkAI products and services. By enrolling in BlinkAI’s SMS/text messaging service, you agree to receive text messages from BlinkAI to your mobile phone number provided, and you certify that your mobile number provided is true and accurate and that you are authorized to enroll the designated mobile number to receive such texts. You acknowledge and agree that the texts may be sent using an automatic telephone dialing system and that standard message and data rates apply. Consent is not required as a condition of use of the Site. BlinkAI is not responsible for any delays upon sending or receiving text messages.
Please note that by creating a User Account and providing your phone number, you consent to receive autodialed or prerecorded calls and text messages from us at the telephone number(s) provided by you to us. We may place such calls or texts to (a) help keep your User Account secure through the use of two-factor authentication; (b) help you access your User Account when you’ve forgotten your password; or (c) as otherwise necessary to service your User Account or enforce these Terms, our policies, applicable law, or any other agreement we may have with you.
To unsubscribe from text messages at any time, text STOP, QUIT, END, CANCEL, or UNSUBSCRIBE to any text message you receive from BlinkAI. You consent that following such a request to unsubscribe, you may receive one final text message from BlinkAI confirming your request. For help, contact us at privacy@blinkai.com
5. Third-Party Links and Information
The Site may contain links to third-party sites, applications, information, content, products, or services that are not owned or controlled by BlinkAI, including those owned or controlled by automotive dealers or automobile brands. BlinkAI does not endorse or assume any responsibility for any such third-party sites, applications, information, content, products, or services (collectively, “Third Party Site”). If you access a Third Party Site from the Site, you do so at your own risk, and you understand that these Terms, including BlinkAI’s Privacy Policy, do not apply to your use of Third Party Site. By accessing or using Third Party Site, you consent to the exchange of information and data regarding you between BlinkAI and the service provider of that Third Party Site. Once this information is shared with the service provider of that Third Party Site, its use will be governed by that service provider’s terms of use and privacy policy (and not by these Terms). You expressly relieve BlinkAI from any and all liability arising from your ACCESS TO OR use of any Third Party Site. Additionally, your dealings with or participation in promotions of advertisers found on the Site, including payment and delivery of products, and any other terms (such as warranties) are solely between you and such advertisers. You agree that BlinkAI shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
6. Indemnity
You hereby indemnify and hold harmless BlinkAI and its affiliates and its and their respective licensors, employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including attorney’s fees) arising from or relating to: (i) your use of or access to the Site, including any data, information, or content transmitted or received by you;(ii) your violation of any term of these Terms; (iii) your violation of any third-party right or applicable law; (iv) your willful misconduct; or (v) any other party’s access to or use of the Site through your User Account. You will cooperate fully as reasonably required in the defense of any such claim.
7. No Warranty
The Site is provided on an “as is” and “as available” basis. Use of the Site is at your own risk. To the maximum extent permitted by applicable law, the Site is provided without warranties of any kind, whether express or implied, including implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from BlinkAI or through the Site will create any warranty not expressly stated herein. Without limiting the foregoing, BlinkAI and its affiliates and licensors do not warrant that: (a) the BlinkAI Content is accurate, reliable or correct; (b) the Site will meet your requirements; (c) the Site will be available at any particular time or location, uninterrupted or secure; (d) any defects or errors will be corrected; or (e) the Site is free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of the Site is downloaded at your own risk and you will be solely responsible for any damage to your computer system or mobile device or loss of data that results from such download or your use of the Site.
Further, BlinkAI does not warrant, endorse, guarantee, or assume responsibility for any AUTOMOTIVE DEALER ORAUTOMOTIVE BRAND or any product or service advertised or offered by any AUTOMOTIVEDEALER, AUTOMOTIVE BRAND, or other third party through the Site or any Third Party Site, and BlinkAI will not be a party to or in any way monitor any transactions between you and any third-party providers of products or services, including any AUTOMOTIVE DEALER OR AUTOMOTIVE BRAND.
If your mobile device is off, out of range, or subject to a variety of other conditions, you may not be able to use the Site and communications through the Site (such as notifications of Reusable Container return due dates and late fees) may be delayed. Cellular and other wireless transmission services and networks are inherently insecure and subject to service disruptions, weak or dropped signals, and other failures over which BlinkAI has no control. BlinkAI assumes no responsibility or liability for any delays or failure to send or receive communications through the Site or text messages or for any security breaches or incidents related to any of the foregoing.
The law in some jurisdictions does not allow the exclusion and limitation of certain implied warranties, so the above exclusions may not apply to you. In such jurisdictions, the scope and duration of such implied warranties and the warranties set forth in these Terms will be the minimum permitted by applicable law. These Terms give you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers and exclusions under these Terms will not apply to the extent prohibited by applicable law.
8. Limitation of Liability
To the maximum extent permitted by applicable law, in no event shall BlinkAI, its affiliates, suppliers, licensors or its or their respective agents, directors, employees, be liable for any indirect, punitive, incidental, special, consequential, or exemplary damages or for loss of profits, goodwill, use, or data, or for other intangible losses arising out of or relating to the use of, or inability to use, the Site. Under no circumstances will BlinkAI be responsible for any damage, loss, or injury resulting from hacking, tampering, or other unauthorized access to or use of the Site or your account or the information contained therein.
To the maximum extent permitted by applicable law, BlinkAI assumes no liability or responsibility for any (a)personal injury or property damage of any nature whatsoever resulting from your access to or use of the Site; (b) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (c) any interruption or cessation of transmission to or from the Site; (d) any bugs, viruses, trojan horses, or the like that may be transmitted to or through the Site by any party; (e) any errors, mistakes, inaccuracies, or omissions in any content or information or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the Site; or (f) the defamatory, offensive, or illegal conduct of any third party. In no event shall BlinkAI, its affiliates, suppliers, licensors or its or their respective agents, directors, employees be liable to you for any claims, proceedings, liabilities, obligations, damages, losses, or costs in an amount exceeding $50.00.
Any dispute you have arising out of any AUTOMOTIVE PRODUCT OR SERVICE OR ANYINTERACTION BETWEEN YOU AND AN AUTOMOTIVE DEALER OR AUTOMOTIVE BRAND OR ANYOTHER THIRD PARTY or your use of the Site in connection therewith is directly between you and the AUTOMOTIVE DEALER, AUTOMOTIVE BRAND, or other third party provider of such PRODUCT OR SERVICE and you irrevocably release BlinkAI, its affiliates, suppliers, licensors or its or their respective agents, directors, and employees from any and all losses of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if BlinkAI has been advised of the possibility of such damage.
These Terms gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers, exclusions, and limitations of liability under these Terms will not apply to the extent prohibited by applicable law, including New Jersey law. In such jurisdictions, BlinkAI’s liability is limited to the minimum permitted by applicable law.
9. Governing Law
You agree that (a) the Site shall be deemed solely based in Texas and (b) the Site shall be deemed a passive one that does not give rise to personal jurisdiction over BlinkAI, either specific or general, in jurisdictions other than Texas. These Terms shall be governed by the internal substantive laws of the State of Texas, without respect to its conflict of laws principles. You and BlinkAI acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16)(“FAA”)governs the interpretation and enforcement of the Arbitration Agreement and preempts all state laws to the fullest extent permitted by law. If the FAA is found to not apply to any issue that arises from or relates to the Arbitration Agreement, then that issue shall be resolved under and governed by the law of your state of residence. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the exclusive personal jurisdiction of the federal and state courts located in Austin, Texas for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of our intellectual property rights or other proprietary rights, as set forth in the Arbitration Agreement, including any provisional relief required to prevent irreparable harm. You agree that Austin, Texas is the proper and exclusive forum for any appeals of an arbitration award or for trial court proceedings in the event that the Arbitration Agreement is found to be unenforceable.
10. General
10.1. Complaints. Under California Civil Code Section 1789.3,California users of the Site receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Sites of the California Department of Consumer Affairs may be contacted in writing at the contact information set forth at https://www.dca.ca.gov/about_us/contactus.shtml or successor thereto.
10.2. Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by BlinkAI without restriction. Any attempted transfer or assignment in violation hereof is null and void.
10.3. Notification Procedures. BlinkAI may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by BlinkAI in our sole discretion. BlinkAI reserves the right to determine the form and means of providing notifications to our Users, provided that, you may opt out of certain means of notification as described in these Terms. BlinkAI is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us.
10.4. Changes to the Terms BlinkAI may, in its sole discretion, update or modify these Terms from time to time. If we do so, you will be required to accept the updated or modified Terms in order to continue using the Site. If you do not agree to the updated or modified Terms, you may not continue to access or use the Site.
10.5. Entire Agreement/Severability. The Terms, together with any amendments and any additionalagreements you may enter into with BlinkAI in connection with the Site, shallconstitute the entire agreement between you and BlinkAI concerning the Site.Except as otherwise stated in the Arbitration Agreement, if any provision ofthese Terms is deemed invalid by a court of competent jurisdiction, theinvalidity of such provision shall not affect the validity of the remainingprovisions of these Terms, which shall remain in full force and effect.
10.6. Interpretation. Headings are for reference purposes only and in noway define, limit, construe, or describe the scope or extent of such section.For purposes of these Terms: (a) the words “include,” “includes”, and“including” will be deemed to be followed by the words “without limitation”;(b) the words “such as”, “for example”, “e.g.”, and any derivatives of thosewords will mean by way of example and the items that follow these words willnot be deemed an exhaustive list; (c) the word “or” is not exclusive; (d) thewords “herein,” “hereof,” “hereby,” “hereto”, and “hereunder” refer to theseTerms as a whole; and (e) the singularincludes the plural and the plural includes the singular. No ambiguity will beconstrued against any party based on a claim that the party drafted thelanguage.
10.7. No Waiver. Nowaiver of any term of these Terms shall be deemed a further or continuingwaiver of such term or any other term, and BlinkAI’s failure to assert anyright or provision under these Terms shall not constitute a waiver of suchright or provision.
10.8. Contact. Pleasecontact us at [insert email address] with any questions regarding these Terms.
10.9. Government Users. The Siteand related documentation are “Commercial Items”, as that term is defined at 48C.F.R. §2.101, consisting of “Commercial Computer Software” and “CommercialComputer Software Documentation”, as such terms are used in 48 C.F.R. §12.212or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial ComputerSoftware and Commercial Computer Software Documentation are being licensed toU.S. Government end users: (a) only as Commercial Items and (b) with only thoserights as are granted to all other end users pursuant to these Terms.Unpublished rights reserved under the copyright laws of the United States.
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