THE DIP APP TERMS OF SERVICE
The Dip App, Inc. (“The Dip”, “we”, “us”, or “our”) provides technology-enabled services, including the Software as a Service offering branded as The Dip App, the website at takeadip.us, any mobile application developed and distributed by The Dip (the “App”), and other related software, content, and services, including all versions and upgrades thereto (collectively, the “Services”). Your use of the Services is subject to and governed by the terms and conditions in this Terms of Service (this “TOS”). The Dip may, at its discretion, update this TOS at any time. You can access and review the most current version of this TOS at the URL for this page or as otherwise made available by The Dip.
PLEASE REVIEW THIS TOS CAREFULLY. BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THIS TOS, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS TOS, YOU MAY NOT ACCESS OR USE THE SERVICES.
THIS TOS REQUIRES FINAL AND BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THIS TOS, OR YOUR ACCESS TO OR USE OF THE SERVICES, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THIS TOS, AND YOU AGREE THAT ANY SUCH CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 15 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
You represent and warrant that you: (a) are of legal age to form a binding contract; (b) have the right, authority, and capacity to agree to and abide by this TOS; and (c) are not a person barred from using the Services under the laws of any applicable jurisdiction. THE SERVICES ARE NOT INTENDED FOR USERS UNDER THE AGE OF 13, AND SUCH USERS ARE EXPRESSLY PROHIBITED FROM SUBMITTING ANY PERSONAL DATA OR USING ANY ASPECT OF THE SERVICES, AND BY TAKING SUCH ACTIONS YOU AGREE, REPRESENT, AND WARRANT THAT YOU ARE 13 YEARS OF AGE OR OLDER.
- Use of the Services. Subject to full compliance with this TOS, The Dip grants authorized users a nonexclusive, nontransferable, non-sublicensable, terminable license to access and use the Services for your personal use. You agree to not access, reproduce, duplicate, copy, sell, re-sell, modify, distribute, transmit, or otherwise exploit the Services or any of their content for any purpose except for your personal use and as described in this TOS, except with the express written consent of The Dip. The Dip may modify, update, suspend or discontinue the Services, in whole or in part, at our sole discretion for any or no reason, at any time and with or without notice. The Dip shall not be liable to any user or other third party for any such modification, update, suspension or discontinuance.
- Intellectual Property Rights.
- The Services and its entire contents, features, and functionality (including, but not limited to, all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by The Dip, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. You agree that you have no ownership rights in any content contained in the Services, including, without limitation, The Dip logos, designs, text, graphics, pictures, information, and the selection and arrangement thereof. Nothing in the Services shall be construed to confer any license under any of The Dip’s intellectual property rights, whether by estoppel, implication or otherwise.
- You grant The Dip and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made all content (in any form and any medium, whether now known or later developed) that you provide in connection with the Services (the “Submitted Content”). You acknowledge and agree that the technical processing and transmission of data associated with the Services, may require: (i) transmissions over various networks and across borders; and (ii) modifications to conform, connect, and adapt to technical requirements of networks or devices.
- If you elect to provide or make available to The Dip any suggestions, comments, ideas, improvements or other feedback relating to the Services (“Feedback”), Dip shall own and be free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in your Feedback in any form and any medium (whether now known or later developed), without credit or compensation to you.
- You exclusively own all right, title and interest in and to the Submitted Content. Notwithstanding anything to the contrary, The Dip shall have the right to collect and analyze data and other information relating to the Services, and related systems and technologies (including, without limitation, information concerning the Submitted Content and data derived therefrom), and we will be free to:
- use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and our other offerings, and
- disclose such data solely in aggregate or other de-identified form in connection with our business.
- You hereby grant The Dip a limited, free of charge, non-exclusive, non-transferable, non-sublicensable (except as necessary to provide Third-Party Services (as defined herein)) license to store, copy and process the Submitted Content in order to provide the Services. We shall not use, disclose or access the Submitted Content other than (a) to provide the Services and perform our obligations under this TOS, (b) as required to facilitate Third-Party Services, or (c) as required to comply with applicable law or legal process. The license and obligations under this Section will survive the termination or expiration of this TOS until the Submitted Content is no longer on our platform.
- Prohibited Uses.
- You may use the Services only for lawful purposes and in accordance with this TOS. You agree not to use the Services:
- in any way that defames, harasses, abuses, threatens, or incites violence towards any individual or group;
- in any way that infringes on any proprietary right of any party, including patent, trademark, trade secret, copyright, right of publicity and/or other rights; and
- to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm The Dip or Services users, or expose them to liability.
- Additionally, you agree not to and not to permit any third party to:
- Reverse engineer, decompile, disassemble or otherwise attempt to discover or directly access the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any component thereof.
- Distribute, sell, encumber, copy, modify, translate or create derivative works based on the Services or any component thereof.
- Use the Services or any component thereof for timesharing or service bureau purposes or otherwise for the benefit of a third party.
- Remove any proprietary notices or labels of the Services.
- Use or access the Services or any component thereof in violation of this TOS.
- Provide access or use of the Services to any other party.
- Use the Services to store or transmit unlawful content.
- Use the Services in any manner that could disable, overburden, damage, or impair the Services or interfere with any other party’s use of the Services, including their ability to engage in real time activities through the Services.
- Otherwise attempt to interfere with the proper working of the Services.
- You may use the Services only for lawful purposes and in accordance with this TOS. You agree not to use the Services:
- User Warranties. You hereby represent and warrant that:
- You have all requisite rights and authority to use the Services under this TOS and to grant all applicable rights herein.
- You are solely responsible for all Submitted Content.
- You have all requisite rights and authority to use any Submitted Content you upload to the system or provide to us in connection with your use of the Services.
- Your use of the Services and provision of any Submitted Content will not infringe the rights of any third party.
- You are solely responsible for maintaining the confidentiality of your username(s) and password(s).
- You agree to immediately notify us of any unauthorized use of the Services of which you become aware.
- You agree that we will not be liable for any losses incurred as a result of a third party’s use of the Services, regardless of whether such use is with or without your knowledge and consent.
- You will use the Services for lawful purposes only and subject to this TOS.
- Any information you submit to us is true, accurate, and correct.
- You will not attempt to gain unauthorized access to the Services, other accounts, computer systems, or networks under the control or responsibility of The Dip through hacking, cracking, password mining, or any other unauthorized means.
- Subscription Services; Platform Fees. Certain portions of the Services require a payment of a Platform Fee for access and use (“Subscription Services”). “Platform Fee” means the monthly or annual fee for the Subscription Services published on our website from time to time or otherwise communicated to you at the time you register for Subscription Services which you will pay in accordance with this Section. The Dip may in its sole and absolute discretion change its Platform Fee at any time. The Dip may charge and/or retain Platform Fees if you do not fulfill your contractual obligations under this TOS. All payments will be made in United States dollars via The Dip’s third-party payment processor, Finix, which is embedded into the App. For the avoidance of doubt, any payment made via the embedded Finix payment processor shall be subject to the provisions of Section 8 below.
- Credit Card Processing Fee. Payment of the Platform Fee or for services via credit card to a properly onboarded pool cleaning provider (a “Provider”) by a properly onboarded pool owner (a “Owner”) shall be made subject to a Credit Card Processing Fee published on our website from time to time or otherwise communicated to you at the time you register for Subscription Services. A transaction between a Provider and an Owner for pool-related services shall be called “Pool Services” for purposes of these TOS. All payments will be made in United States dollars via The Dip’s third-party payment processor, Finix, which is embedded into the App. For the avoidance of doubt, any payment made via the embedded Finix payment processor shall be subject to the provisions of Section 8 below. You acknowledge that payment of the Credit Card Processing Fee shall be strictly construed as a payment for the use of processing a major debit or credit card through the App, and shall not be construed as a Platform Fee, payment for Pool Services, or any other services.
- Use of Finix Payment Processor. By electing to remit payment for the Platform Fee or Pool Services through the App, you acknowledge that certain payment processing and other features (the “Finix Payment Processing Services”) are provided by Finix Payments, Inc. and its affiliates (collectively, “Finix”). In addition to these TOS, such Finix Payment Processing Services are governed by the Finix Terms of Service (the “Finix Terms”). By agreeing to these TOS, you agree to be bound by the Finix Terms, as may be modified by Finix from time to time. You acknowledge and agree that the Finix Terms constitute a valid, binding, and enforceable contract between you and Finix. In the event of any conflict between these TOS and the Finix Terms regarding your use of the Finix Payment Processing Services, you agree that the Finix Terms will control. You also agree to the following terms and conditions:
- You will use the Finix Payment Processing Services solely for the processing of customer transactions (i.e., payment of the Platform Fee or payment for Pool Services).
- Finix is not a party to these TOS and shall not be liable or responsible to you under these Terms for any damages of any kind, whether direct, indirect, incidental, or consequential, regardless of the legal theory or cause of action. Finix disclaims any and all liability or responsibility regarding any portion, component, or feature of the Services other than Finix Payment Processing Services
- Finix expressly disclaims any representation, warranty, or other guarantee regarding the Services and/or the Finix Payment Processing Services, including without limitation any warranty of title, merchantability, or fitness for a particular purpose.
- You will use the Finix Payment Processing Services in full compliance with all applicable laws, regulations, industry self-regulatory guidelines, and payment network rules and instructions.
- You agree to defend, indemnify, and hold harmless The Dip, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns (the “Dip Parties”) from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of this TOS or your use of the Services, any use of the Services’ content, services, and products other than those authorized in this TOS, or your use of any information obtained from the Services.
- You further agree to defend, indemnify, and hold harmless The Dip against any third-party claim, suit or proceeding arising out of or in connection with a breach of your representations and warranties provided in Section 5of this TOS.
- YOUR USE OF THE SERVICES ARE AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE DIP PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
- THE DIP PARTIES MAKE NO WARRANTY, REPRESENTATION OR GUARANTEES THAT: (i) THE SERVICES OR PROFESSIONAL SERVICES WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; OR (iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICES WILL BE ACCURATE, RELIABLE, CURRENT, OR COMPLETE.
- THE DIP PARTIES MAKE NO WARRANTY, REPRESENTATION OR GUARANTEE WITH RESPECT TO SERVICES OFFERED BY THIRD-PARTY SERVICE PROVIDERS OR PROFESSIONAL SERVICE PROVIDERS (INCLUDING “PROVIDERS” AS DEFINED HEREIN) AND THE DIP PARTIES SPECIFICALLY DISCLAIMS ANY WARRANTY, REPRESENTATION OR GUARANTEE WITH RESPECT TO THE QUALITY, SAFETY, LEGALITY OR OTHER CHARACTERISTICS OF SUCH SERVICES AND THE CONDUCT OF ANY THIRD-PARTY SERVICE PROVIDER OR PROFESSIONAL SERVICE PROVIDERS (INCLUDING “PROVIDERS” AS DEFINED HEREIN).
- ALL CONTENT MADE AVAILABLE THROUGH THE SERVICES IS MADE AVAILABLE FOR INFORMATIONAL PURPOSES ONLY. YOU ARE SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL CONTENT BEFORE TAKING OR OMITTING ANY ACTION.
- THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS AND YOU MAY HAVE WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. ANY SUCH WARRANTY EXTENDS ONLY FOR THIRTY (30) DAYS FROM THE EFFECTIVE DATE OF THIS TOS (UNLESS SUCH LAW PROVIDES OTHERWISE).
- Limitation on Liability.
- TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE DIP PARTIES BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICES, ANY SERVICES LINKED TO IT, ANY CONTENT ON THE SERVICES OR SUCH OTHER SERVICES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT, BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE, AND EVEN IF THE DIP PARTIES WERE PREVIOUSLY MADE AWARE OF SUCH POTENTIAL OR ACTUAL DAMAGES.
- If you are a California resident, you waive California Civil Code Section 1542, which provides: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
- If you are not a California resident, you waive your rights under any statute or common law principle similar to California Civil Code Section 1542 that governs your rights in the jurisdiction of your residence.
- Term and Termination. Subject to this Section, this TOS will remain in full force and effect while you access and/or use the Services. We may terminate your account and/or your access to and/or use of all or any part of the Services at any time, with or without cause, with or without notice, effective immediately and without liability. The Dip will not have any liability whatsoever to you for any termination of your rights under this TOS, including without limitation for termination of your access to the Services.
- Governing Law. You agree that the laws of the state of California, without regard to conflicts of laws provisions will govern this TOS and any dispute that may arise between you and The Dip or its affiliates.
- Binding Arbitration and Class Action Waiver.
- ALL CLAIMS ARISING IN CONNECTION WITH THIS TOS SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THIS TOS AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF YOUR CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
- The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that such hearing shall be conducted in Santa Clara County, California or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
- WE AND YOU (BY YOUR USE OF THE APP AND SERVICES) EACH AGREE THAT ALL CLAIMS SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR OTHER SIMILAR PROCESS. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN SANTA CLARA COUNTY, CALIFORNIA. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
- Notwithstanding anything to the contrary, you and The Dip may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect its intellectual property rights, whether in aid of, pending, or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section.
- If The Dip implements any material change to this Section, such change shall not apply to any Claim for which you provided written notice to The Dip before the implementation of the change.
- Legal Compliance. You represent and warrant that you will comply with all applicable foreign, federal, state, and local laws, rules and regulations, including without limitation, U.S. export laws and import and use laws of the country where the Services are accessed or used and you are not: (a) located in a country that is subject to a U.S. Government embargo, or designated by the U.S. Government as a “terrorist supporting” country; and (b) listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.
- Procedure for Making Claims of Copyright Infringement. If you believe your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have otherwise been violated, please provide a notice containing all of the following information to our Copyright Agent:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- A description of the copyrighted work that you claim has been infringed;
- A description of where the material that you claim is infringing is located on the Services;
- Your address, telephone number, and e-mail address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Our Copyright Agent for Notice of claims of copyright infringement on the Services can be reached as follows:
By Mail: 3141 Stevens Creek Blvd. #41220, San Jose, CA 95125
By E-mail: email@example.com
- There is no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship between you and The Dip. If any provision of this TOS is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of any other provision of this TOS, which shall remain in full force and effect unless such deletion materially frustrates the intent of the parties, in which case this TOS will terminate. Our failure to act on or enforce any provision of this TOS shall not be construed as a waiver of that provision or any other provision in this TOS.
- The section headings are provided merely for convenience and shall not be given any legal import. This TOS will inure to our successors, assigns, licensees, and sublicensees.