Falkon Terms and Conditions of Use
Effective as of April 2016
Thanks for choosing Falkon (“Falkon”, “we”, “us”, “our”). By signing up or otherwise using the Falkon service, websites, and software applications (together, the “Falkon Service” or “Service”), or accessing any content or material that is made available by Falkon through the Service (the “Content”) you are entering into a binding contract with the Falkon entity indicated at the bottom of this document.
Please read the Agreements carefully. They cover important information about Falkon Services provided to you and any charges, taxes, and fees we bill you. The Agreements include information about future changes to the Agreements, export controls, automatic renewals, limitations of liability, privacy information, a class action waiver, and resolution of disputes by arbitration instead of in court.
Any information that you provided during sign-up can be corrected during the sign-up process by returning to the previous screens and correcting erroneous information.
In order to use the Falkon Service and access the Content, you need to (1) be 18 or older, or be 13 or older and have your parent or guardian’s consent to the Agreements (except as set forth in the chart below), (2) have the power to enter a binding contract with us and not be barred from doing so under any applicable laws, and (3) be resident in a country where the Service is available. You also promise that any registration information that you submit to Falkon is true, accurate, and complete, and you agree to keep it that way at all times.
2 Changes to the Agreements
Occasionally we may, in our discretion, make changes to the Agreements. When we make material changes to the Agreements, we’ll provide you with prominent notice as appropriate under the circumstances, e.g., by sending you an email. In some cases, we will notify you in advance, and your continued use of the Service after the changes have been made will constitute your acceptance of the changes. Please therefore make sure you read any such notice carefully. If you do not wish to continue using the Service under the new version of the Agreements, you may terminate the Agreements by contacting us.
3 Enjoying Falkon
Here’s some information about all the ways you can enjoy Falkon.
3.1 Our Services & Paid Subscriptions
Falkon provides property information services offering a selection of real estate information and other content. Certain Falkon services are provided to you free-of-charge. Other Falkon services require payment before you can access them. The Falkon services that may be accessed after payment are currently referred to as the “Falkon Pro Service,” “Falkon Pro” and/or the “Unlimited Service” (together, the “Paid Subscriptions”). The Falkon service that does not require payment is currently referred to as the “Free Service” and/or “Falkon”. You can learn more about our services by visiting our website.
The Unlimited Service may not be available to all users. We will explain which services are available to you when you are signing up for the services. If you cancel your subscription to the Unlimited Service, or if your subscription to the Unlimited Service is interrupted (for example, if you change your payment details), you may not be able to re-subscribe for the Unlimited Service. Note that the Unlimited Service may be discontinued in the future, in which case you will no longer be charged for the Service.
3.2 Codes and other pre-paid offers
If you have purchased or received a code, gift card, pre-paid offer or other offer provided or sold by or on behalf of Falkon for access to a Paid Subscription (“Code”), separate terms and conditions presented to you along with the Code may also apply to your access to the Service and you agree to comply with any such terms and conditions.
From time to time, we or others on our behalf may offer trials of Paid Subscriptions for a specified period without payment or at a reduced rate (a “Trial”). Falkon reserves the right, in its absolute discretion, to determine your eligibility for a Trial, and, subject to applicable laws, to withdraw or to modify a Trial at any time without prior notice and with no liability, to the greatest extent permitted under the law.
For some Trials, we’ll require you to provide your payment details to start the Trial. AT THE END OF SUCH TRIALS, WE MAY AUTOMATICALLY START TO CHARGE YOU FOR THE APPLICABLE PAID SUBSCRIPTION ON THE FIRST DAY FOLLOWING THE END OF THE TRIAL, ON A RECURRING MONTHLY BASIS. BY PROVIDING YOUR PAYMENT DETAILS IN CONJUNCTION WITH THE TRIAL, YOU AGREE TO THIS CHARGE USING SUCH PAYMENT DETAILS. IF YOU DO NOT WANT THIS CHARGE, YOU MUST CANCEL THE APPLICABLE PAID SUBSCRIPTION THROUGH YOUR FALKON ACCOUNT’S SUBSCRIPTION PAGE OR TERMINATE YOUR FALKON ACCOUNT BEFORE THE END OF THE TRIAL. IF YOU DO NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING MONTHLY BASIS, YOU MUST CANCEL THE APPLICABLE PAID SUBSCRIPTION THROUGH YOUR FALKON ACCOUNT’S SUBSCRIPTION PAGE OR TERMINATE YOUR FALKON ACCOUNT BEFORE THE END OF THE RECURRING MONTHLY PERIOD. PAID SUBSCRIPTIONS CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, FALKON WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID. THE LIMITATION SECTION SETS FORTH ADDITIONAL TERMS REGARDING CANCELLATION OF YOUR PAID SUBSCRIPTION.
4 Rights we grant you
The Falkon Service and the Content are the property of Falkon or Falkon's licensors. We grant you a limited, non-exclusive, revocable license to make use of the Falkon Service, and a limited, non-exclusive, revocable licence to make personal, non-commercial, entertainment use of the Content (the “Licence”). This Licence shall remain in effect until and unless terminated by you or Falkon. You promise and agree that you are using the Content for your own personal, non-commercial, entertainment use and that you will not redistribute or transfer the Falkon Service or the Content.
The Falkon software applications and the Content are licensed, not sold, to you, and Falkon and its licensors retain ownership of all copies of the Falkon software applications and Content even after installation on your personal computers, mobile handsets, tablets, and/or other relevant devices (“Devices”).
All Falkon trademarks, service marks, trade names, logos, domain names, and any other features of the Falkon brand (“Falkon Brand Features”) are the sole property of Falkon or its licensors. The Agreements do not grant you any rights to use any Falkon Brand Features whether for commercial or non-commercial use.
You agree to abide by our User guidelines and not to use the Falkon Service, the Content, or any part thereof in any manner not expressly permitted by the Agreements. Except for the rights expressly granted to you in these Agreements, Falkon grants no right, title, or interest to you in the Falkon Service or Content.
Third party software (for example, open source software libraries) included in the Falkon Service are licensed to you either under the Agreements or under the relevant third party software library’s license terms as published in the help or settings section of our desktop and mobile client and/or on our website.
5 Third Party Applications
The Falkon Service is integrated with third party applications, websites, and services (“Third Party Applications”) to make available content, products, and/or services to you. These Third Party Applications may have their own terms and conditions of use and privacy policies and your use of these Third Party Applications will be governed by and subject to such terms and conditions and privacy policies. You understand and agree that Falkon does not endorse and is not responsible or liable for the behavior, features, or content of any Third Party Application or for any transaction you may enter into with the provider of any such Third Party Applications.
6 Rights you grant us
In consideration for the rights granted to you under the Agreements, you grant us the right (1) to allow the Falkon Service to use the processor, bandwidth, and storage hardware on your Device in order to facilitate the operation of the Service, (2) to provide advertising and other information to you, (3) to allow our business partners to do the same, (4) disclose your name, firm, and company of association as a user and/or subscriber of the Falkon Service for marketing, media, and public relations. In any part of the Falkon Service, the Content you view, including its selection and placement, may be influenced by commercial considerations, including agreements with third parties.
If you provide feedback, ideas or suggestions to Falkon in connection with the Falkon Service or Content (“Feedback”), you acknowledge that the Feedback is not confidential and you authorize Falkon to use that Feedback without restriction and without payment to you. Feedback is considered a type of User Content.
7 User guidelines
Falkon respects intellectual property rights and expects you to do the same. We’ve established a few ground rules for you to follow when using the Service, to make sure Falkon stays enjoyable for everyone. Please follow these rules and encourage other users to do the same.
The following is not permitted for any reason whatsoever:
- copying, redistributing, reproducing, “ripping”, recording, transferring, performing or displaying to the public, broadcasting, or making available to the public any part of the Falkon Service or the Content, or otherwise making any use of the Falkon Service or the Content which is not expressly permitted under the Agreements or applicable law or which otherwise infringes the intellectual property rights (such as copyright) in the Falkon Service or the Content or any part of it;
- using the Falkon Service to import or copy any local files you do not have the legal right to import or copy in this way;
- transferring copies of cached Content from an authorized Device to any other Device via any means;
- reverse-engineering, decompiling, disassembling, modifying, or creating derivative works based on the Falkon Service, Content or any part thereof unless permitted by applicable law;
- circumventing any technology used by Falkon, its licensors, or any third party to protect the Content or the Service;
- selling, renting, sublicensing or leasing of any part of the Falkon Service or the Content;
- circumventing any territorial restrictions applied by Falkon or it licensors;
- artificially increasing play count or otherwise manipulating the Services by using a script or other automated process;
- removing or altering any copyright, trademark, or other intellectual property notices contained on or provided through the Falkon Service (including for the purpose of disguising or changing any indications of the ownership or source of any Content);
- providing your password to any other person or using any other person’s username and password;
- “crawling” the Falkon Service or otherwise using any automated means (including bots, scrapers, and spiders) to collect information from Falkon; or
- selling a user account, or otherwise accepting any compensation, financial or otherwise, to influence an account.
Please be thoughtful about how you use the Falkon Service and what you share. The Falkon Service includes social and interactive features, including the ability to share content. Remember that shared or publicly available information may be used and re-shared by other users on Falkon or across the web, so please use Falkon carefully and be mindful of your account settings. Falkon has no responsibility for your actions.
Your password protects your user account, and you are solely responsible for keeping your password confidential and secure. You understand that you are responsible for all use of your username and password on the Service. If your username or password is lost or stolen, or if you believe there has been unauthorized access to your account by third parties, please notify us immediately and change your password as soon as possible.
8 Service limitations and modifications
Falkon will make reasonable efforts to keep the Falkon Service operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. To the extent permissible under applicable law, Falkon reserves the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the Falkon Service, with or without notice, all without liability to you, except where prohibited by law, for any interruption, modification, or discontinuation of the Falkon Service or any function or feature thereof. Notwithstanding the foregoing, if you have prepaid fees for Paid Subscriptions that Falkon permanently discontinues prior to the end of the Pre-Paid Period (defined in the Payments, cancellations, and cooling off section), Falkon will refund you the prepaid fees for the Pre-Paid Period after such discontinuation. You understand, agree, and accept that Falkon has no obligation to maintain, support, upgrade, or update the Service, or to provide all or any specific content through the Service. This section will be enforced to the extent permissible by applicable law. Falkon and/or the owners of any Content may, from time to time, remove any such Content without notice to the extent permitted by applicable law.
9 Customer support
For customer support with account-related and payment-related questions (“Customer Support Queries”), please contact us via email on the About Us section of our website. We will use reasonable endeavours to respond to all Customer Support Queries within a reasonable time frame but we make no guarantees or warranties of any kind that any Customer Support Queries will be responded to within any particular time frame and/or that we will be able to satisfactorily answer any such queries.
10 Payments, cancellations, and cooling off
Paid Subscriptions can be purchased either by (1) paying a monthly subscription fee; or (2) pre-payment giving you access to the Falkon Service for a specific time period (“Pre-Paid Period”). If you have purchased a Paid Subscription using a Code, your Paid Subscription will automatically terminate at the end of the Pre-Paid Period, or when there is an insufficient pre-paid balance to pay for the Service.
When you register for a Paid Subscription, Trial, or Code online, you consent to get access to Falkon Premium immediately. If you reside outside the United States and register for a Paid Subscription or Code online, you may change your mind for any or no reason and receive a full refund of all monies paid within fourteen (14) days (the “Cooling-off Period”). Refunds will not, however, be provided if you have accessed Falkon at any time during the Cooling-off Period.
Unless your Paid Subscription has been purchased as a Pre-Paid Period, your payment to Falkon (or to a third party through whom you purchased the Paid Subscription, such as a telephone company) will automatically renew at the end of the subscription period, unless you cancel your Paid Subscription through your subscription page before the end of the current subscription period. The cancellation will take effect the day after the last day of the current subscription period, and you will be downgraded to the Free Service. However, if you cancel your payment or Paid Subscription and/or terminate any of the Agreements (1) after you have accessed Falkon during the Cooling-off Period, or (2) after the Cooling-off Period is over (where applicable), or (3) before the end of the current subscription period, we will not refund any subscription fees already paid to us.
If you wish to receive a full refund of all monies paid before the Cooling-off Period is over, you must contact Customer Support.
Falkon may change the price for the Paid Subscriptions, Pre-Paid Period (for periods not yet paid for), or Codes from time to time, and will communicate any price changes to you in advance and, if applicable, how to accept those changes. Price changes for Paid Subscriptions will take effect at the start of the next subscription period following the date of the price change. As permitted by local law, you accept the new price by continuing to use the Falkon Service after the price change takes effect. If you do not agree with the price changes, you have the right to reject the change by unsubscribing from the Falkon Service prior to the price change going into effect. Please therefore make sure you read any such notification of price changes carefully.
11 Term and termination
The Agreements will continue to apply to you until terminated by either you or Falkon. However, you acknowledge and agree that the perpetual licence granted by you in relation to User Content, including Feedback, is irrevocable and will therefore continue after expiry or termination of any of the Agreements for any reason. Falkon may terminate the Agreements or suspend your access to the Falkon Service at any time, including in the event of your actual or suspected unauthorized use of the Falkon Service and/or Content, or non-compliance with the Agreements. If you or Falkon terminate the Agreements, or if Falkon suspends your access to the Falkon Service, you agree that Falkon shall have no liability or responsibility to you and Falkon will not refund any amounts that you have already paid, to the fullest extent permitted under applicable law. To learn how to terminate your Falkon account, please contact us through the Customer Service contact form which is available on our About Us page. This section will be enforced to the extent permissible by applicable law. You may terminate the Agreements at any time.
All Sections herein, as well as any other sections of the Agreements that, either explicitly or by their nature, must remain in effect even after termination of the Agreements, shall survive termination.
12 Warranty and disclaimer
WE ENDEAVOUR TO PROVIDE THE BEST SERVICE WE CAN, BUT YOU UNDERSTAND AND AGREE THAT THE FALKON SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. YOU USE THE FALKON SERVICE AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FALKON AND ALL OWNERS OF THE CONTENT MAKE NO REPRESENTATIONS AND DISCLAIM ANY WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NEITHER FALKON NOR ANY OWNER OF CONTENT WARRANTS THAT THE FALKON SERVICE IS FREE OF MALWARE OR OTHER HARMFUL COMPONENTS. IN ADDITION, FALKON MAKES NO REPRESENTATION NOR DOES IT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY APPLICATIONS (OR THE CONTENT THEREOF), USER CONTENT, OR ANY OTHER PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY ON OR THROUGH THE FALKON SERVICE OR ANY HYPERLINKED WEBSITE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING. YOU UNDERSTAND AND AGREE THAT FALKON IS NOT RESPONSIBLE OR LIABLE FOR ANY TRANSACTION BETWEEN YOU AND THIRD PARTY PROVIDERS OF THIRD PARTY APPLICATIONS OR PRODUCTS OR SERVICES ADVERTISED ON OR THROUGH THE FALKON SERVICE. AS WITH ANY PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. NO ADVICE OR INFORMATION WHETHER ORAL OR IN WRITING OBTAINED BY YOU FROM FALKON SHALL CREATE ANY WARRANTY ON BEHALF OF FALKON IN THIS REGARD. SOME ASPECTS OF THIS SECTION MAY NOT APPLY IN SOME JURISDICTIONS IF PROHIBITED BY APPLICABLE LAW.
THIS DOES NOT AFFECT YOUR STATUTORY RIGHTS AS A CONSUMER.
YOU AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE Falkon SERVICE IS TO UNINSTALL ANY FALKON SOFTWARE AND TO STOP USING THE Falkon SERVICE. WHILE FALKON ACCEPTS NO RESPONSIBILITY FOR THIRD PARTY APPLICATIONS OR THE CONTENT THEREOF, AND WHILE YOUR RELATIONSHIP WITH SUCH THIRD PARTY APPLICATIONS MAY BE GOVERNED BY SEPARATE AGREEMENTS WITH SUCH THIRD PARTIES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY, AS WITH RESPECT TO FALKON, FOR ANY PROBLEMS OR DISSATISFACTION WITH THIRD PARTY APPLICATIONS OR THE CONTENT THEREOF, IS TO UNINSTALL AND/OR STOP USING ANY SUCH THIRD PARTY APPLICATIONS.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL FALKON, ITS OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, DIRECTORS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS, OR LICENSORS BE LIABLE FOR (1) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; (2) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS (WHETHER DIRECT OR INDIRECT), IN ALL CASES ARISING OUT OF THE USE OR INABILITY TO USE THE FALKON SERVICE, THIRD PARTY APPLICATIONS, OR THIRD PARTY APPLICATION CONTENT, REGARDLESS OF LEGAL THEORY, WITHOUT REGARD TO WHETHER FALKON HAS BEEN WARNED OF THE POSSIBILITY OF THOSE DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; OR (3) AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE FALKON SERVICE, THIRD PARTY APPLICATIONS, OR THIRD PARTY APPLICATION CONTENT MORE THAN THE AMOUNTS PAID BY YOU TO FALKON DURING THE PRIOR TWELVE MONTHS IN QUESTION, TO THE EXTENT PERMISSIBLE BY APPLICABLE LAW.
Nothing in the Agreements removes or limits Falkon’s liability for fraud, fraudulent misrepresentation, death or personal injury caused by its negligence, and, if required by applicable law, gross negligence. Some aspects of this section may not apply in some jurisdictions if prohibited by applicable law.
14 Third party rights
You acknowledge and agree that the owners of the Content and certain distributors (such as app store providers) are intended beneficiaries of the Agreements and have the right to enforce the Agreements directly against you. Other than as set out in this section, the Agreements are not intended to grant rights to anyone except you and Falkon, and in no event shall the Agreements create any third party beneficiary rights. Furthermore, the rights to terminate, rescind, or agree to any variation, waiver, or settlement of the Agreements are not subject to the consent of any other person.
If you have downloaded the App from the Apple, Inc. (“Apple”) App Store or if you are using the App on an iOS device, you acknowledge that you have read, understood, and agree to the following notice regarding Apple. This Agreement is between you and Falkon only, not with Apple, and Apple is not responsible for the Service and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and Apple will refund any applicable purchase price for the App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the App infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the Service. Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement. You hereby represent and warrant that (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.
15 Entire agreement
Other than as stated in this section or as explicitly agreed upon in writing between you and Falkon, the Agreements constitute all the terms and conditions agreed upon between you and Falkon and supersede any prior agreements in relation to the subject matter of these Agreements, whether written or oral.
Please note, however, that other aspects of your use of the Falkon Service may be governed by additional agreements. That could include, for example, access to the Falkon Service as a result of a gift card or free or discounted Trials. When you are presented with an offer for such aspects of your use, you will be presented with any related additional agreement, and you may have an opportunity to agree to additional terms. Some of those additional terms are listed on Falkon’s website. To the extent that there is any irreconcilable conflict between any additional terms and these Terms, the additional terms shall prevail.
16 Severability and waiver
Unless as otherwise stated in the Agreements, should any provision of the Agreements be held invalid or unenforceable for any reason or to any extent, such invalidity or enforceability shall not in any manner affect or render invalid or unenforceable the remaining provisions of the Agreements, and the application of that provision shall be enforced to the extent permitted by law.
Any failure by Falkon or any third party beneficiary to enforce the Agreements or any provision thereof shall not waive Falkon’s or the applicable third party beneficiary’s right to do so.
Falkon may assign the Agreements or any part of them, and Falkon may delegate any of its obligations under the Agreements. You may not assign the Agreements or any part of them, nor transfer or sub-license your rights under the Agreements, to any third party.
To the fullest extent permitted by applicable law, you agree to indemnify and hold Falkon harmless from and against all damages, losses, and expenses of any kind (including reasonable attorney fees and costs) arising out of: (1) your breach of this Agreement; (2) any User Content; (3) any activity in which you engage on or through the Falkon Service; and (4) your violation of any law or the rights of a third party.
19 Choice of law, mandatory arbitration and venue
19.1 Governing Law and Venue.
This Agreement will be governed and construed solely in accordance with the laws of the State of New York without giving effect to principles of conflict of laws. Both Parties agree to submit to exclusive jurisdiction in New York and further agree that any cause of action arising under this Agreement shall be brought solely in a court in Manhattan County, New York.
19.2 Class Action Waiver CLASS ACTION WAIVER
WHERE PERMITTED UNDER THE APPLICABLE LAW, YOU AND Falkon AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and Falkon agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.
19.3 Dispute Resolution and Arbitration
You and Falkon agree that any dispute, claim, or controversy between you and Falkon arising in connection with or relating in any way to these Agreements or to your relationship with Falkon as a user of the Service (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination of the Agreements) will be determined by mandatory binding individual arbitration. Arbitration is more informal than a lawsuit in court. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. There may be more limited discovery than in court. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney fees), except that the arbitrator may not award declaratory or injunctive relief benefiting anyone but the parties to the arbitration. This arbitration provision will survive termination of the Agreements.
Notwithstanding clause (19.3) above, you and Falkon both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our rights, at any time, to (1) bring an individual action in a U.S. small claims court, (2) pursue enforcement actions through applicable U.S. federal, state, or local agencies where such actions are available, (3) seek injunctive relief in a court of law, or (4) to file suit in a court of law to address intellectual property infringement claims.
19.3.2 Arbitration rules
Either you or we may start arbitration proceedings. If you are located in, are based in, have offices in, or do business in the United States, any arbitration between you and Falkon will be finally settled under the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”) then in force (the “AAA Rules”), as modified by the Agreements. You and Falkon agree that these Agreements affect interstate commerce, so the U.S. Federal Arbitration Act and federal arbitration law apply and govern the interpretation and enforcement of this provision (despite the choice of law provision above). The AAA Rules, as well as instructions on how to file an arbitration proceeding with the AAA, appear at adr.org, or you may call the AAA at 1-800-778-7879. Falkon can also help put you in touch with the AAA.
Any arbitration hearings will take place at a location to be agreed upon in New York, New York, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (1) solely on the basis of documents submitted to the arbitrator; (2) through a non-appearance based telephonic hearing; or (3) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address.
Your arbitration fees and your share of arbitrator compensation will be limited to those fees set forth in the AAA’s Consumer Rules with the remainder paid by Falkon. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Falkon for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
If you are not located in, are not based in, do not have offices in, and do not do business in the United States, any arbitration between you and Falkon will be finally settled under the Rules of Arbitration of the International Chamber of Commerce (the “ICC”) then in force (the “ICC Rules”) by one or more arbitrators appointed in accordance with the ICC Rules, as modified by these Developer Terms, and will be administered by the International Court of Arbitration of the ICC.
Any arbitration will be conducted in the English language and unless otherwise required by a mandatory law of a member state of the European Union or any other jurisdiction, the law to be applied in any arbitration shall be the law of the State of New York, United States, without regard to choice or conflicts of law principles.
19.3.3 Time for filing
Any arbitration must be commenced by filing a demand for arbitration within ONE (1) YEAR after the date the party asserting the claim first knows or reasonably should know of the act, omission, or default giving rise to the claim; and there shall be no right to any remedy for any claim not asserted within that time period. If applicable law prohibits a one-year limitation period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law.
In the event that Falkon makes any future change to this arbitration provision (other than a change to Falkon's address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Falkon's address for Notice, in which case your account with Falkon shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject, shall survive.
If the class action waiver at Section 19.1 is found to be unenforceable in arbitration or if the entirety of this Section 19 is found to be unenforceable, then the entirety of this Section 19.2 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 19 shall govern any action arising out of or related to the Agreements.
20 Contact us
If you have any questions concerning the Falkon Service or the Agreements, please contact Falkon customer service by visiting the About Us section of our website.
Thank you for reading our Terms. We hope you enjoy Falkon!