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Terms of Service

Last Updated October 1, 2023

These Terms of Service (“Terms”) set the rules for using Confabulation Corporation’s (“Confabulation”, “we,” “us,” “our”) products and services, including our website, mobile applications (“app”) and virtual shopping assistant or chatbot (“Ollie, ” and “Services”).

By using our Services, you’re agreeing to these Terms as well as our Privacy Policy, and any other guidelines or documents we may provide from time to time.

If you interact with our Services in any way, it means you accept these Terms. If you don’t agree with them, unfortunately, you won’t be able to use our Services.

BY AGREEING TO THESE TERMS, EXCEPT FOR (I) CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 17, (II) WHERE YOU EXERCISE YOUR RIGHT TO OPT OUT OF ARBITRATION AS DESCRIBED IN SECTION 17, OR (III) TO THE EXTENT PROHIBITED BY LAW, DISPUTES BETWEEN YOU AND CONFABULATION WILL BE RESOLVED SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, ANY OTHER KIND OF REPRESENTATIVE PROCEEDING, OR BY JURY TRIAL. If you do not agree to these Terms, do not use our Services.

We may make changes to these Terms. The “Last Updated” date above indicates when these Terms were last changed. If we make future changes, we may provide you with notice of such changes, such as by sending an email, providing a notice through our Services, or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must immediately stop using our Services.

Our Services

We believe that conversational AI will redefine online shopping by offering each consumer a trusted and personal shopping assistant. Your interaction with our Services enables us to refine this emerging technology to be increasingly effective, collaborative, and enjoyable.

By using our Services, you recognize that:

  • We will use the content of your conversations, along with other metadata, to train our algorithms, enhance our Services, and develop new offerings. For a comprehensive understanding of how we use this data, please refer to our Privacy Policy.
  • Your access to our Services is conditional upon your adherence to the terms outlined here, elaborated further under the “Prohibited Use” section below.
  • While we strive for accuracy, the information provided by our Services may not be 100% reliable. We encourage you not to rely solely on this information without conducting your own verification. Please consult the “Disclaimers” section for further details.

Eligibility and Use Restrictions

  1. Age. Users under 18 years of age (or the age of legal majority where the user lives) may only use our Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. The parent or legal guardian of a user under the age of 18 (or the age of legal majority) is fully responsible for the acts or omissions of such user in relation to our Services. If you are a parent or legal guardian and you believe that your child under the age of 18 is using our Services without your consent, please contact us at legal@confabulation.ai.
  1. Jurisdiction. You may only use our Services in jurisdictions authorized by Confabulation. Use of our Services is currently authorized only in the United States
  1. Use and Sharing. You may only use our Services for personal, family or household purposes and expressly excluding any commercial use.

Your Information

You may provide certain information to Confabulation in connection with your access or use of our Services, or we may otherwise collect certain information about you when you access or use our Services. You agree to receive emails, SMS or text messages, and other types of communication from Confabulation via the Services using the email address or other contact information you provide in connection with the Services. You represent and warrant that any information that you provide to Confabulation in connection with the Services is accurate.

For information about how we collect, use, share and otherwise process information about you, please see our Privacy Policy https://ollie.ai/privacy-policy.

Accounts

You may create an account with Confabulation in order to use some or all of our Services. You will promptly update any information contained in your account if it changes. You must maintain the security of your account, as applicable, and promptly notify us if you discover or suspect that someone has accessed your account without your permission. We reserve the right to reject, require that you change, or reclaim usernames, including on behalf of businesses or individuals that hold legal title, including trademark rights, in those usernames.

User Content

  1. Our Services may allow you and other users to create, post, store, and share content, including reviews, messages, text, photos, videos, and other materials (collectively, “User Content”). When you post or otherwise share User Content on or through our Services, you understand that your User Content and any associated information (such as your username or profile photo) may be visible to others. If you choose to make any of your information publicly available through the Services, you do so at your own risk.
  1. Except for the license you grant below, as between you and Confabulation, you retain all rights in and to your User Content, excluding any portion of the Services included in your User Content. You grant Confabulation a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable (through multiple tiers) license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly or otherwise perform and display, and use your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you or any third party. You hereby irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding User Content that you may have under any applicable law or under any legal theory.
  1. You may not create, post, store, or share any User Content for which you do not have all the rights necessary to grant us the license described above, and you represent and warrant that your User Content, and our use of such User Content as permitted by these Terms, will not violate any rights of any person or entity, including any third-party rights, or cause injury to any person or entity. You may not create, post, store, or share any User Content that:
    • Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, or fraudulent;
    • Would constitute, encourage, or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability, or violate any local, state, national, or international law;
    • May infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party;
    • Contains or depicts any statements, remarks, or claims that do not reflect your honest views and experiences;
    • Impersonates, or misrepresents your affiliation with, any person or entity;
    • Contains any unsolicited promotions, political campaigning, advertising, or solicitations;
    • Contains any private or personal information of a third party without such third party’s consent;
    • Contains any viruses, corrupted data or other harmful, disruptive, or destructive files or content; or
    • In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Services, or may expose Confabulation or others to any harm or liability of any type.
  1. Enforcement of this Section 4 is solely at Confabulation’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. This Section 4 does not create any right or private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by these Terms or that objectionable material will be promptly removed after it has been posted.
  2. We do not undertake to review all User Content, and we expressly disclaim any duty or obligation to undertake any monitoring or review of any User Content. Although we have no obligation to screen, edit, or monitor User Content, we may:
        • Delete or remove User Content or refuse to post any User Content at any time and for any reason with or without notice, including without limitation for any violations of applicable law or these Terms;
        • Terminate or suspend your access to all or part of the Services, temporarily or permanently, if your User Content is reasonably likely, in our sole determination, to violate applicable law or these Terms;
        • Take any action with respect to your User Content that is necessary or appropriate, in Confabulation’s sole discretion, to ensure compliance with applicable law and these Terms, or to protect Company’s rights, or to protect any third-party rights, including third-party intellectual property and privacy rights (e.g., providing information to copyright owners in furtherance of Digital Millennium Copyright Act takedown requests); and as permitted by law, cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any User Content on or through the Services.

      Prohibited Conduct

      1. You will not use our Services if you are not eligible to use our Services in accordance with Section 1 and will not use our Services other than for their intended purpose. Further, you will not, in connection with our Services:
        • Violate any applicable law, contract, intellectual property right, or other third-party right or commit a tort;
        • Engage in any harassing, threatening, intimidating, predatory, or stalking conduct;
        • Use or attempt to use another user’s account or information without authorization from that user and Confabulation;
        • Impersonate or post on behalf of any person or entity or otherwise misrepresent your affiliation with a person or entity;
        • Sell or resell our Services;
        • Copy, reproduce, distribute, publicly perform, or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;
        • Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services;
        • Use our Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying our Services or that could damage, disable, overburden, or impair the functioning of our Services in any manner;
        • Reverse engineer any aspect of our Services or do anything that might discover or reveal source code, or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
        • Use any data mining, robots, or similar data gathering or extraction methods designed to scrape or extract data from our Services except in accordance with instructions contained in our robot.txt file and only to compile for search results, provided that Confabulation grants to the operators of public search engines permission to use spiders to copy materials from the Site for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. Confabulation reserves the right to revoke such permission either generally or in specific cases, at any time and without notice;
        • Develop or use any applications or software that interact with our Services without our prior written consent;
        • Send, distribute, or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;
        • Link to any online portion of the Services in a manner that damages or exploits, in our sole discretion, our reputation or suggests any form or association, approval, or endorsement by the Confabulation; or
        • Use our Services for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates these Terms.
      1. Enforcement of this Section 5 is solely at Confabulation’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances.

      Product Listings

      The Services may make available listings, descriptions, and images of products, as well as references and links to products and coupons or discounts for products (“Listings”). Such products may be made available by third parties and may be made available for any purpose, including general information purposes. The availability through the Services of any listing, description, or image of a third-party product does not imply our endorsement of such product or affiliation with the provider of such product. We attempt to ensure that any such Listings are complete, accurate, and current, but despite our efforts, the Listings may occasionally be inaccurate, incomplete, or out of date. We make no representations as to the completeness, accuracy, reliability, validity, or timeliness of such Listings (including any features, specifications, and prices contained therein). Such Listings and the availability of any product (including the validity of any coupon or discount) are subject to change at any time without notice. Certain weights, measures, and similar descriptions are approximate and are for convenience only. We make reasonable efforts to accurately display the attributes of products, including the applicable colors; however, the actual colors you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors.

      Ownership; Limited License

      The Services, including the text, graphics, images, photographs, videos, illustrations, and other content contained therein, and all intellectual property rights therein and thereto, are owned by Confabulation or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services including all intellectual property rights therein and thereto, are reserved by us or our licensors. Subject to your compliance with these Terms (including Sections 4 and 5), you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services for your own personal, noncommercial use. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein and violate our intellectual property rights. Any applications included in the Services are licensed (not sold), and if you fail to comply with any of the terms or conditions of these Terms, you must immediately cease using the applicable application and remove (that is, uninstall and delete) the applicable application from your mobile or personal device.

      Trademarks

      Confabulation, Ollie, and our logos, product or service names, slogans, and the look and feel of the Services are trademarks of Confabulation and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names, and company names or logos mentioned on or in connection with the Services are the property of their respective owners. Reference to any products, services, processes, or other information by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation by us.

      Feedback

      You may voluntarily post, submit, or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials, or other information about Confabulation or our Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, or improve the Feedback or Services, or to improve or develop new products, services, or the Services in Confabulation’s sole discretion. Confabulation will exclusively own all improvements to, or new, Confabulation products, services, or Services based on any Feedback. You understand that Confabulation may treat Feedback as nonconfidential.

      Repeat Infringer Policy; Copyright Complaints

      1. Our Policy. In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others (our “DMCA Policy“).
      1. Reporting Claims of Copyright Infringement. If you believe that any content on our Services infringe any copyright that you own or control, you may notify Confabulation’s designated agent (your notification, a “DMCA Notice”) as follows:

       

      Designated Agent: Legal Department, Confabulation Corporation

      Address: 8910 University Center Lane, Suite 400

      San Diego CA 92122

      Telephone Number: 619-273-3607‬

      Email Address: legal@confabulation.ai

       

      Please see Section 512(c)(3) of the DMCA for the requirements of a proper notification. If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your notice may not be effective. If you knowingly materially misrepresent that any activity or material on our Services is infringing, you may be liable to Confabulation for certain costs and damages.

      Third-Party Content

      1. Our Services rely on or interoperate with third-party products and services, including, without limitation, data storage services, communications technologies, IoT platforms, third-party app stores, and internet and mobile operators (collectively, “Third-Party Materials”). These Third-Party Materials are beyond our control, but their operation may impact, or be impacted by, the use and reliability of our Services. You acknowledge that (a) the use and availability of the Services is dependent on third-party product vendors and service providers and (b) these Third-Party Materials may not operate reliably 100% of the time, which may impact the way that our Services operate.
      1. We may further provide information about or links to third-party products, services, activities, or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party.
      1. We have no obligation to monitor Third-Party Materials or Third-Party Content, and we may block or disable access to any Third-Party Materials or Third-Party Content (in whole or part) through our Services at any time. Your access to and use of such Third-Party Content or Third-Party Materials may be subject to additional terms, conditions, and policies applicable to such Third-Party Content (including terms of service or privacy policies of the providers of such Third-Party Materials). You are responsible for obtaining and maintaining any computer hardware, equipment, network services and connectivity, telecommunications services, and other products and services necessary to access and use the Services.

      Indemnification

      To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless Confabulation and  our  officers, directors, agents, partners, and employees (individually and collectively, the “Confabulation Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Indemnification Claims”) arising out of or related to (a) your access to or use of the Services; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation, or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Services. You will promptly notify Confabulation Parties of any third-party Indemnification Claims, cooperate with Confabulation Parties in defending such Indemnification Claims, and pay all fees, costs, and expenses associated with defending such Indemnification Claims (including attorneys’ fees). The Confabulation Parties will have control of the defense or settlement, at Confabulation’s sole option, of any third-party Indemnification Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Confabulation or the other Confabulation Parties.

      Disclaimers

      Your use of our Services and any content or materials provided therein or therewith (including the Third-Party Content and Third-Party Materials) is at your sole risk. Except as otherwise provided in a writing by us and to the fullest extent permitted under applicable law, our Services, and any content or materials provided therein or therewith (including the Third-Party Content and Third-Party Materials) are provided “as is” and “as available” without warranties of any kind, either express or implied. Confabulation disclaims all warranties with respect to the foregoing, including implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Confabulation does not represent or warrant that our Services or any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) are accurate, complete, reliable, current, or error-free or that access to our Services or any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) will be uninterrupted. While Confabulation attempts to make your use of our Services and any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) safe, we cannot and do not represent or warrant that our Services or any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) or our servers are free of viruses or other harmful components or content or materials. You assume the entire risk as to the quality and performance of the Services and any content provided therein or therewith (including the Third-Party Content and Third-Party Materials). All disclaimers of any kind (including in this section and elsewhere in these Terms) are made for the benefit of Confabulation, Confabulation Parties, and Confabulation’s respective shareholders, agents, representatives, licensors, suppliers, and service providers, as well as their respective successors and assigns.

      Limitation of Liability

      1. To the fullest extent permitted by applicable law, Confabulation and the other Confabulation Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive, or special damages or lost profits, even if Confabulation or the other Confabulation Parties have been advised of the possibility of such damages.
      1. The total liability of Confabulation and the other Confabulation Parties for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the greater of $10 or the amount paid by you to use our Services giving rise to the claim.
      1. The limitations set forth in this Section 15 will not limit or exclude liability for the gross negligence, fraud, or intentional misconduct of Confabulation or the other Confabulation Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.

      Release

      To the fullest extent permitted by applicable law, you release Confabulation and the other Confabulation Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 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.”

      Dispute Resolution; Binding Arbitration

      PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND CONFABULATION TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH WE CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND  CONFABULATION FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND  CONFABULATION AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING.  CONFABULATION AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.

      FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT.

      1. Informal Dispute Resolution Prior to Arbitration. For any dispute or claim that you have against Confabulation, that Confabulation has against you, or that you have or Confabulation has arising from or relating to these Terms, our Services, or any aspect of the relationship between you and Confabulation as relates to these Terms, our Services, including any privacy or data security claims, (collectively, “Claims”, and each a “Claim”), you and Confabulation agree to attempt to first resolve the Claim informally via the following process:
        1. If you assert a Claim against Confabulation, you will first contact Confabulation by sending a written notice of your Claim (“Claimant Notice”) to Confabulation by certified mail addressed to Confabulation Corporation, 8910 University Center Lane, Suite 400, San Diego CA 92122 or by email to legal@confabulation.ai. The Claimant Notice must (i) include your name, residence address, email address, and telephone number; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought.
        1. If Confabulation asserts a Claim against you, Confabulation will first contact you by sending a written notice of Confabulation’s Claim (“Confabulation Notice”), and each of a Claimant Notice and Confabulation Notice, a “Notice”) to you via email to the primary email address associated with your account. The Confabulation Notice must (i) include the name of a Confabulation contact and the contact’s email address and telephone number; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought.
        1. If you and Confabulation cannot reach an agreement to resolve the Claim within thirty (30) days after you or Confabulation receives such a Notice, then either party may submit the Claim to binding arbitration as set forth below. The statute of limitations and any filing fee deadlines shall be tolled for thirty (30) days from the date that either you or Confabulation first send the applicable Notice so that the parties can engage in this informal dispute-resolution process.
      1. Claims Subject to Binding Arbitration; Exceptions. Except for individual disputes that qualify for small claims court and any disputes exclusively related to the intellectual property or intellectual property rights of you or Confabulation, including any disputes in which you or Confabulation seek injunctive or other equitable relief for the alleged unlawful use of your intellectual property or other infringement of your or Confabulation’s intellectual property rights (“IP Claims”), all Claims, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, including Claims that are not related to intellectual property or intellectual property rights but are jointly filed with IP Claims, that are not resolved in accordance with Section 17(a) will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury. Such Claims include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. The arbitrator will have the authority to grant any remedy or relief that would otherwise be available in court.
      1. Federal Arbitration Act. These Terms affect interstate commerce, and the enforceability of this Section 17 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq., to the extent permitted by law. As limited by the FAA, these Terms, and the AAA Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability.
      1. Arbitration Procedure (Consumers and Businesses). All Claims must be submitted to the American Arbitration Association (the “AAA”) and will be resolved through binding arbitration before one arbitrator. The AAA administers arbitration pursuant to the due process standards set forth by the AAA and rules set forth by the AAA. Such rules differ if you are a consumer or a business as further described below:
        1. If you are an individual using the Services for your personal use, you are a Consumer, the then-current version of the AAA’s Consumer Arbitration Rules, which are available on the AAA’s website (adr.org), as amended by these Terms as follows, will apply to any arbitration between you and Confabulation:
          1. YOU AND Confabulation AGREE THAT ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND YOU AND Confabulation ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitrator may conduct only an individual arbitration and, except as described below for the additional procedures to govern if twenty-five (25) or more similar or coordinated claims are asserted against Confabulation or you by the same or coordinated counsel, may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual.
          1. For any arbitration you initiate, you will pay the consumer filing fee, and Confabulation will pay the remaining AAA fees and costs. For any arbitration initiated by Confabulation, Confabulation will pay all AAA fees and costs.
          1. For all arbitrations where the Claims asserted are $25,000 or less, the arbitration shall be resolved according to the AAA’s Procedures for the Resolution of Disputes through Document Submission, and for all other arbitrations the following procedure will apply: (i) the arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate; (ii) any in-person appearances will be held at a location that is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, and (iii) if the parties are unable to agree on a location, such determination will be made by the AAA or by the arbitrator.
          1. If you or Confabulation submits a dispute to arbitration and the arbitrator orders any exchange of information, you and Confabulation agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and/or other materials that might be exchanged or the subject of discovery in the arbitration. You and Confabulation agree to seek such protection before any such information, documents, testimony, and/or materials are exchanged or otherwise become the subject of discovery in the arbitration.
          1. The arbitrator’s decision will follow these Terms and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of these Terms, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
          1. The AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule will apply if twenty-five (25) or more similar claims are asserted against Confabulation or against you by the same or coordinated counsel or are otherwise coordinated.
            1. In addition to the application of the AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule, you and Confabulation understand and agree that when twenty-five (25) or more similar claims are asserted against Confabulation or you by the same or coordinated counsel or are otherwise coordinated resolution of your or Confabulation’s Claim might be delayed.
            1. For such coordinated actions, you and Confabulation also agree to the following coordinated bellwether process. Counsel for claimants and counsel for Confabulation shall each select ten (10) cases (per side) to proceed first in individual arbitration proceedings. The remaining cases shall be deemed filed for purposes of the statute of limitations but not for the purpose of assessing AAA fees. No AAA fees shall be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a bellwether process. If the parties are unable to resolve the remaining cases after the conclusion of the initial twenty (20) proceedings, each side shall select another ten (10) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process.
            1. A single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise.
            1. This bellwether process shall continue, consistent with the parameters identified above, until all the claims included in these coordinated filings, including your case, are adjudicated or otherwise resolved.
            1. The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this bellwether process from the time the first cases are selected for a bellwether process until the time your or Confabulation’s case is selected for a bellwether process, withdrawn, or otherwise resolved.
            1. A court shall have authority to enforce this paragraph and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against Confabulation or you.
      1. If you are a NOT a Consumer (as defined above), you are a “Business” and the then-current version of the AAA’s Commercial Arbitration Rules and Mediation Procedures, which are available on the AAA’s website (adr.org), as amended by these Terms as follows, will apply to any arbitration between you and Confabulation:
        1. YOU AND Confabulation AGREE THAT ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND YOU AND Confabulation ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitrator may conduct only an individual arbitration and, except as described below for the additional procedures to govern if twenty-five (25) or more similar or coordinated claims are asserted against Confabulation or you by the same or coordinated counsel, may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual.
        1. Any in-person appearances will be held in San Diego County, California.
        1. You and Confabulation agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and/or other materials that might be exchanged or the subject of discovery in the arbitration. You and Confabulation agree to seek such protection before any such information, documents, testimony, and/or materials are exchanged or otherwise become the subject of discovery in the arbitration.
        1. The arbitrator’s decision will follow these Terms and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of these Terms, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
        1. The AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule will apply if twenty-five (25) or more similar claims are asserted against Confabulation or against you by the same or coordinated counsel or are otherwise coordinated.
          1. In addition to the application of the AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule, you and Confabulation understand and agree that when twenty-five (25) or more similar claims are asserted against Confabulation or you by the same or coordinated counsel or are otherwise coordinated resolution of your or Confabulation’s Claim might be delayed.
          1. For such coordinated actions, you and Confabulation also agree to the following coordinated bellwether process. Counsel for claimants and counsel for Confabulation shall each select ten (10) cases (per side) to proceed first in individual arbitration proceedings. The remaining cases shall be deemed filed for purposes of the statute of limitations but not for the purpose of assessing AAA fees. No AAA fees shall be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a bellwether process. If the parties are unable to resolve the remaining cases after the conclusion of the initial twenty (20) proceedings, each side shall select another ten (10) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process.
          1. A single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise.
          1. This bellwether process shall continue, consistent with the parameters identified above, until all the claims included in these coordinated filings, including your case, are adjudicated or otherwise resolved.
          1. The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this bellwether process from the time the first cases are selected for a bellwether process until the time your or Confabulation’s case is selected for a bellwether process, withdrawn, or otherwise resolved.
          1. A court shall have authority to enforce this paragraph and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against Confabulation or you.
      1. One Year to Assert Claims.  To the extent permitted by law, any Claim by you or Confabulation relating in any way to these Terms, our Services, or any aspect of the relationship between you and Confabulation as relates to these Terms or our Services, must be filed within one year after such Claim arises; otherwise, the Claim is permanently barred, which means that you and Confabulation will not have the right to assert the Claim.
      1. Opting Out of Arbitration. You have the right to opt out of binding arbitration within 30 days of the date you first accepted these Terms by providing us with notice of your decision to opt-out via email at legal@confabulation.ai or by certified mail addressed to Confabulation Corporation, 8910 University Center Lane, Suite 400, San Diego CA 92122. In order to be effective, the opt-out notice must include your full name, mailing address, and email address. The notice must also clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 18.
      1. Rejection of Future Arbitration Changes. You may reject any change we make to Section 17 (except address changes) by personally signing and sending us notice within 30 days of the change via email at legal@confabulation.ai or by certified mail addressed to Confabulation Corporation, 8910 University Center Lane, Suite 400, San Diego CA 92122. If you do, the most recent version of Section 17 before the change you rejected will apply.
      1. Severability. If any portion of this Section 17 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from these Terms; (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 17 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 17; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 17 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 17 will be enforceable.
      1. Notwithstanding anything to the contrary in the Terms, if you reside in any country outside of the United States, you may bring legal proceedings regarding the Terms either by following the arbitration procedure detailed above in this Section 17 of the Terms or, if given the right by applicable law, by submitting the dispute to an arbitration administrator in the jurisdiction in which you reside. To the extent any proceeding is not subject to arbitration under applicable law, you may submit the dispute to the courts of the jurisdiction in which you reside.

      Governing Law

      Any Claims will be governed by and construed and enforced in accordance with the laws of the State of California, except to the extent preempted by U.S. Federal Law, without regard to conflict of law rules or principles (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. If any Claim is not subject to arbitration pursuant to Section 17, then the state and federal courts located in San Diego County, California, will have exclusive jurisdiction. You and Confabulation waive any objection to venue in any such courts. If your local law requires that consumer contracts be interpreted subject to local law and enforced in the courts of that jurisdiction, this section may not apply to you only to the extent that local law conflicts with this section.

      Modifying and Terminating Our Services

      We reserve the right to modify our Services or to suspend or terminate providing all or part of our Services at any time; charge, modify, or waive any fees required to use the Services; or offer opportunities to some or all end users of the Services. We may provide you with notice in advance of the suspension or discontinuation of all or part of our Services, such as by sending an email or providing a notice through our Services. All modifications and additions to the Services will be governed by the Terms, unless otherwise expressly stated by Confabulation in writing. You also have the right to stop using our Services at any time, and you may terminate these Terms by ceasing use of our Services. We are not responsible for any loss or harm related to your inability to access or use our Services.

      Severability

      If any portion of these Terms other than Section 17 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (a) the unenforceable or unlawful provision will be severed from these Terms; (b) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of these Terms; and (c) the unenforceable or unlawful provision may be revised to the extent required to render the Terms enforceable or valid, and the rights and responsibilities of the parties will be interpreted and enforced accordingly, so as to preserve the Terms and the intent of the Terms to the fullest possible extent.

      Export Control

      You are responsible for compliance with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.

      Miscellaneous

      1. Confabulation’s failure to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. These Terms reflect the entire agreement between the parties relating to the subject matter hereof and supersede all prior agreements, representations, statements, and understandings of the parties. The section titles in these Terms are for convenience only and have no legal or contractual effect. Use of the word “including” will be interpreted to mean “including without limitation.” Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. Communications and transactions between us may be conducted electronically.
      1. If you have a question or complaint regarding the Services, please send an email to legal@confabulation.ai. You may also contact us by writing to Confabulation Corporation, 8910 University Center Lane, Suite 400, San Diego CA 92122. Please note that email communications will not necessarily be secure; accordingly, you should not include payment card information or other sensitive information in your email correspondence with us. Further, under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.

      Additional Terms Applicable to Mobile Devices

      The following terms apply if you install, access, or use the Services on any device that contains the iOS mobile operating system (the “iOS App”) developed by Apple Inc. (“Apple”).

      1. Acknowledgement. You acknowledge that these Terms are concluded solely between us, and not with Apple. Confabulation, not Apple, is solely responsible for this iOS App and the content thereof. You further acknowledge that the usage rules for the iOS App are subject to any additional restrictions set forth in the Usage Rules for the Apple iOS App Store Terms of Service as of the date you download the App, and in the event of any conflict, the Usage Rules in the Apple iOS App Store will govern if they are more restrictive. You acknowledge that you have had the opportunity to review the Usage Rules.
      1. Scope of License. The license granted to you is limited to a non-transferable license to use the iOS App on any iPhone, iPod touch, iPad, or any other Apple device that you own or control as permitted by the Usage Rules set forth in the Apple iOS App Store Terms of Service.
      1. Maintenance and Support. You and Confabulation acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
      1. Warranty. You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the App. In the event of any failure of the iOS App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the iOS App by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. The parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of Confabulation. However, Confabulation has disclaimed all warranties of any kind with respect to the App, and therefore, there are no warranties applicable to the App.
      1. Product Claims. You and Confabulation acknowledge that as between Apple and Confabulation, Confabulation, not Apple, is responsible for addressing any claims relating to the iOS App or your possession and/or use of the iOS App, including, but not limited to (a) product liability claims, (b) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation.
      1. Intellectual Property Rights. The parties acknowledge that, in the event of any third-party claim that the iOS App or your possession and use of the iOS App infringe that third party’s intellectual property rights, Confabulation, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under these Terms.
      1. Developer Name and Address. Any questions, complaints, or claims with respect to the iOS App should be directed to:

      Confabulation Corporation

      8910 University Center Lane, Suite 400

      San Diego CA 92122

      hello@confabulation.ai

      1. Third-Party Terms of Agreement. You will comply with any applicable third-party terms when using the Services.
      1. Third-Party Beneficiary. Apple and its subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.

       

      The following terms apply if you install, access, or use the Services on any device that contains the Android mobile operating system (the “Android App”) developed by Google, Inc. (“Google”):

      1. You acknowledge that these Terms are between you and us only, and not with Google.
      1. Your use of our Android App must comply with Google’s then-current Android Market Terms of Service.
      1. Google is only a provider of the Android Market where you obtained the Android App. We, and not Google, are solely responsible for our Android App and the Services and content available thereon. Google has no obligation or liability to you with respect to our Android App or these Terms.
      1. Google is a third-party beneficiary to the Terms as they relate to our Android App.
      Ⓒ 2024 Confabulation Corporation