TERMS OF SERVICE
Last Updated: February 06, 2025
These Terms of Service (these "Terms") are a legally binding agreement between the party accepting these Terms as set forth in this paragraph ("you") and Scarf Systems, Inc. ("Scarf") and apply to Scarf's online services, applications, tools, and other technology, including those made available via https://scarf.sh and any successor links and associated webpages (the "Site") (collectively, the "Services"). PLEASE READ THESE TERMS CAREFULLY. WHEN YOU CREATE AN ACCOUNT, CHECK A BOX, ENTER INTO AN ORDER FORM (AS DEFINED BELOW), OR OTHERWISE ACCESS OR USE THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.
BY AGREEING TO THESE TERMS, EXCEPT FOR (A) CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 12, (B) WHERE YOU EXERCISE YOUR RIGHT TO OPT OUT OF ARBITRATION AS DESCRIBED IN SECTION 12, OR (C) TO THE EXTENT PROHIBITED BY LAW, DISPUTES BETWEEN YOU AND SCARF 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.
You may access or use the Services by entering into an order form, statement of work, or other similar written documentation with Scarf (each, an "Order Form"). If you enter into an Order Form, then in addition to these Terms, the terms, conditions, guidelines, policies, and/or rules included in or incorporated by reference into such Order Form will govern your access and use of the Services. Additionally, we may indicate that different or additional terms, conditions, guidelines, policies, and/or rules apply in relation to some of the Services ("Supplemental Terms"). Any Supplemental Terms become part of your agreement with Scarf if you use the applicable Services. If there is a conflict between these Terms and the Supplemental Terms, the Supplemental Terms will control for that conflict.
Scarf may make changes to these Terms. If Scarf makes changes, Scarf may provide you with notice of such changes, such as by sending an email, providing a notice through the Site, or otherwise. Unless Scarf says otherwise in its notice, the amended Terms will be effective immediately, and your continued use of the Services after Scarf provides such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must immediately stop using the Services. Any changes to these Terms will not apply to any dispute between you and Scarf arising prior to the date on which Scarf posted the updated Terms incorporating such changes or otherwise notified you of such changes.
1. THE SERVICES
1.1 Right to Use. Subject to your compliance with the terms and conditions of these Terms, Scarf grants you a limited, non-exclusive, revocable right to use the Services solely for your internal purposes on a device that you own or control. You may not resell, transfer, assign, or sublicense your rights under these Terms to any third party or use the Services to provide services for the benefit of any third party.
1.2 Third-Party Services. Certain Services or features thereof may rely on, interoperate with, or otherwise utilize or leverage products and/or services provided by third parties (such services, "Third-Party Services" and the providers of such services, "Third-Party Service Providers"). You are solely responsible and liable for complying with all terms, conditions and policies imposed by Third-Party Service Providers on Third-Party Services (" Third-Party Terms"). Scarf is not, and will not be deemed to be, a party to any Third-Party Terms, all of which are exclusively between you and the applicable Third-Party Service Provider(s). Scarf does not make any warranties or guarantees with respect to Third-Party Services, including the performance or continued availability of Third-Party Services and Scarf may (either itself or as required by the Third-Party Service Provider) limit or cease providing interoperation with any or all Third-Party Services (and, as a consequence, certain or all features of the Services may be limited or ceased) without entitling you to any refund, credit, or other compensation if, for example and without limitation, the Third-Party Service Provider ceases to make the Third-Party Service available for interoperation or use with the Services in a manner acceptable to us. Moreover, the performance of Third-Party Services (and Third-Party Service Providers) is outside Scarf's control. SCARF WILL NOT BE LIABLE FOR, AND SCARF EXPRESSLY DISCLAIMS, ANY LIABILITY FOR LOSSES, COSTS, OR EXPENSES TO THE EXTENT CAUSED BY ANY THIRD- PARTY SERVICES OR THIRD-PARTY SERVICE PROVIDERS OR FOR YOUR COMPLIANCE (OR NON-COMPLIANCE) WITH ANY APPLICABLE THIRD-PARTY TERMS, EACH OF WHICH ARE YOUR EXCLUSIVE RESPONSIBILITY AND LIABILITY.
1.3 Modifications. Notwithstanding anything to the contrary in these Terms, (a) Scarf may conduct maintenance on the Services from time to time without prior notice to you and (b) Scarf may modify, limit, or entirely eliminate features of the Services from time to time at Scarf's sole discretion, including due to limitations imposed on, or the unavailability of, Third-Party Services.
2. ELIGIBILITY AND ACCOUNTS
2.1 Eligibility. In order to use the Services, you must meet, and you represent and warrant that you do meet, the following criteria: (a) you must not be located in a country that is subject to the United States government embargo, or that has been designated by the United States government as a "terrorist supporting" country; (b) you must not be listed on any United States government list of prohibited or restricted parties; and (c) you must be at least 18 years of age (or the minimum age in your jurisdiction required for the formation of binding agreements).
2.2 Use on Behalf of Others. You represent and warrant that these Terms are valid, binding, and enforceable against you. If you use the Services on behalf of another person or entity, (a) all references to "you" throughout these Terms (other than in this Section 2.2) will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person’s or entity's behalf, and (c) in the event you or that person or entity violates these Terms, that person or entity also agrees to be responsible to us. If an entity, you additionally represent and warrant that (i) you are validly existing and in good standing under the laws of the place of your establishment or incorporation and (ii) you have full corporate power and authority to execute, deliver and perform your obligations under these Terms.
2.3 Accounts.
(a) Registration. You need to register for an account to access our Services. When you register for an account, you must provide accurate account information and promptly update this information if it changes. You are responsible for all activities that occur in connection with your account. We may accept or reject your account request in our sole discretion, including, without limitation, if you fail to comply with the terms and conditions of Section 2.3(b) below.
(b) Provision of Information. You agree to provide us with the information we request for the purposes of (i) registering and maintaining your account and (ii) otherwise providing the Services. You permit us to keep a record of such information and represent and warrant that such information (and all other information submitted in connection with the Services, including, without limitation, Your Data (as defined below)) is accurate, complete and truthful. You agree to keep us updated if any of the information you provide changes. We may modify, limit, or entirely eliminate your access to any or all Services as a result of information collected about you. You authorize us to make inquiries, whether directly or through third parties, that we consider necessary to verify your identity or protect you and/or us against fraud or other financial crime, and to take action we reasonably deem necessary based on the results of such inquiries. When we carry out these inquiries, you acknowledge and agree that your personal information may be disclosed to credit reference and fraud prevention or financial crime agencies and that these agencies may respond to our inquiries in full.
(c ) Conditions. Your account is subject to the following conditions:
(i) Access. You understand and agree that access to your account is limited solely to you. You agree that you will not sell, rent, lease, or grant access to your account to any person without our prior written permission.
(ii) Security. You understand and agree that you are solely responsible for maintaining the security of your account and control over any usernames, passwords and any other codes that you use to access our Services, and any payment information (including, without limitation, debit and credit card information) used in connection with your account. You understand and agree that you will not hold us responsible for managing or maintaining the security of your account. You further understand and agree that we are not responsible (and you will not hold us responsible) for any unauthorized access to or use of your account. You are responsible for monitoring your account. If you notice any unauthorized or suspicious activity in your account, please notify us immediately.
(iii) Electronic Communication. You agree and understand that we may communicate with you via electronic means. To ensure that you receive all of our communications, you agree to keep your email address and other applicable contact information current and notify us if there are any changes. You agree that any notices, agreements, disclosures, or other communications delivered to your email address on record are considered valid.
3. YOUR OBLIGATIONS
3.1 Restrictions. You agree that the Services contain trade secrets and other valuable proprietary information belonging to Scarf. You will not, and will ensure that no third parties: (a) alter, copy, modify, translate, or make derivative works of, or permit the alteration, copying, modification, translation, or making derivative works of, the Services or any component thereof; (b) attempt to derive the source code or object code for the Services, including by reverse engineering, decompiling, disassembling, or similar means; (c) seek to acquire any ownership interest in or to the Services; (d) license, offer, sell, transfer, or lease the Services or attempt any of the foregoing; (e) remove, alter, or obfuscate any copyright, trademark, or other proprietary rights notices included with the Services; (f) access or use the Services in order to design, develop, or build a similar product or competitive product; (g) enable access to the Services by anyone not authorized to use the Services; (h) develop any scripts or software applications that interact with or integrate with the Services unless first authorized in writing by Scarf; or (i) circumvent or modify any security technologies designed to prevent unauthorized access to the Services. You will not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Scarf without Scarf's express written consent. You will not use any meta-tags or any other "hidden text" utilizing any of Scarf's names, trademarks, or service marks without the express written consent of Scarf.
3.2 Acceptable Use. You will not use the Services, and will ensure that no third parties use the Services, to: (a) infringe on, violate, dilute, or misappropriate the intellectual property rights, rights of publicity, privacy rights, or other rights of any person; (b) engage in any fraudulent, unlawful, or abusive activities; (c) store, send, or post disparaging, defamatory, inflammatory, trade libelous, threatening, abusive, hateful, harassing, obscene, pornographic, or indecent content, data, or information; (d) interfere with or attempt to interfere with or disrupt the integrity, security, functionality, or proper working of the Services or Scarf provision of services to other customers; (e) attempt to discover, access, read, alter, destroy, or damage any programs, data, or other information stored on or in connection with the Services; or (f) upload or transmit any content that constitutes unsolicited or unauthorized advertising promotional materials, commercial activities, or any other form of solicitation. You are solely responsible for obtaining and maintaining, at your expense, all of the necessary telecommunications, computer hardware, mobile devices, software, services and Internet connectivity required to access the Services.
3.3 Additional Representations and Warranties. You additionally represent, warrant and covenant that at all times during your use of the Services, (a) you will comply with all applicable laws, rules, and regulations ("Applicable Laws") and (b) you will refrain from any conduct that will or may cause Scarf to be non-compliant with Applicable Laws.
4. DATA
4.1 Ownership. You own and retain all right, title, and interest in and to information, data, content, and/or files accessed, transmitted, uploaded, or stored in association with your use of the Services ("Your Data"), including all intellectual property rights therein. You acknowledge and agree that you (not Scarf) have control over Your Data stored by operation of the Services.
4.2 Use of Your Data. You hereby grant Scarf and its affiliates a worldwide, royalty-free, fully paid, transferable, assignable, sublicensable (through multiple tiers), perpetual, and irrevocable license to collect, host, use, access, view, store, copy, display, create derivative works of, delete, and otherwise process Your Data (including, without limitation, providing Your Data to applicable Service Providers and others) to (a) provide, support, monitor, analyze, and improve the Services and improve Scarf's other products and services, (b) communicate with you about your account, (c) comply with the law and any legal and regulatory requirements, including court orders, subpoenas, and requests or requirements for information made by regulatory or investigatory entities, (d) prevent fraud or misuse of the Services, (e) perform market research, (f) conduct product research and improvement and development of products and services by Scarf, and/or (g) for any other lawful purpose. Scarf may expand its use of Your Data in its discretion if not precluded by Applicable Laws. Scarf will not be required to transmit or provide you or any third party with Your Data in any format except as required by Applicable Laws.
4.3 Rights in Your Data. You represent and warrant to Scarf that you have the rights, licenses, and permissions necessary to grant the license and use rights in Section 4.2 and to otherwise provide Your Data to Scarf and allow the collection of Your Data by Scarf in connection with your use of the Services. You acknowledge that Scarf exercises no control over the content of Your Data. You will not upload, post, reproduce, or distribute any information, software, or other material protected by copyright, privacy rights, or any other intellectual property rights without first obtaining the permission of the owner of such rights. Without limiting the generality of the foregoing, you will be solely responsible for: (a) ensuring that you and Scarf, to the extent acting on your behalf, have the right to collect, store, use, process, and share Your Data via the Services; and (b) providing adequate notice to, and obtaining any necessary consents from, any individuals as required under Applicable Laws with respect to Your Data collected, stored, used, processed, and shared in connection with the Services.
5. FEES AND PAYMENTS
5.1 General. You will pay Scarf all fees and amounts charged by Scarf for use of the Services (collectively, the "Fees") in accordance with this Section 5. Except as expressly set forth in Section 5.4, we may, in our sole discretion and at any time, with or without notice to you, (a) impose additional Fees and/or (b) increase or lower existing Fees. You are responsible for any and all taxes applicable to the Services, except for taxes on our net income. All Fees are nonrefundable and noncancelable and will be made in U.S. dollars. The terms of payment specified herein may be subject to Scarf's approval of your credit, and Scarf may at any time revise the specified terms of payment.
5.2 Authorization. You authorize us to maintain your account information and charge your designated payment method in your account (the "Designated Payment Method") as permitted in these Terms and as otherwise disclosed to you, including, without limitation, in connection with Recurring Subscriptions (as defined below). You represent and warrant that you are authorized to use and have Fees charged to your Designated Payment Method.
5.3 Subscriptions. Your use of certain Services may require enrollment in a payment plan involving automatic renewal (such Services, "Subscription Services" and such payment plan, a "Recurring Subscription"). If you use Subscription Services, you authorize us to maintain your account information and charge your Designated Payment Method automatically upon the renewal with no further action required by you. The length of your Recurring Subscription will be provided when you make your purchase. Your Recurring Subscription will automatically renew unless you cancel it. If we are unable to charge your Designated Payment Method as authorized by you when you enrolled in a Recurring Subscription, we may in our sole discretion (a) bill you for your Subscription Services and suspend your access to such Subscription Services until payment is received or (b) seek to update your account information through third-party sources (i.e., your bank or a payment processor) to continue charging your Designated Payment Method as authorized by you. You may cancel your subscription by emailing us at help@scarf.sh. You may cancel a Recurring Subscription at any time, but if you cancel your Recurring Subscription before the end of the current subscription period, we will not refund any subscription Fees already paid to us. Following any cancellation, however, you will continue to have access to the applicable Subscription Services through the end of your current subscription period. We may change the Fees charged for Recurring Subscriptions at any time by posting updated pricing through the Services or otherwise notifying you, but the Fees for your Recurring Subscription will remain in force for the duration of the subscription period for which you have paid. After that period ends, your use of the applicable Subscription Services will be charged at the then-current subscription Fees. If you do not agree to these Fee changes, you must cancel your Recurring Subscription at least ten days before the changes take effect. If you do not cancel, your Recurring Subscription will automatically renew at the then-current Fee at the time of renewal and for the same duration as the initial subscription term, and we will charge your Designated Payment Method on the first day of the renewal of the subscription term.
5.4 Effect of Non-Payment. If you fail to pay any Fees or other amounts due and owing, Scarf may, without limiting its rights or remedies at law, in equity, or under these Terms (each of which Scarf expressly reserves), (a) automatically charge your Designated Payment Method, (b) impose a finance charge on any outstanding balances, (c ) suspend or terminate your account or your access to the Services, and/or (d) impose additional fees and/or charges, including, without limitation, reinstatement fees if your account or your access to the Services has been suspended or terminated. You will reimburse us for all costs and expenses associated with any of the foregoing, including, without limitation, attorneys' fees and costs of collection.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Ownership by Scarf. Subject to the use rights granted under these Terms, as between the parties, Scarf owns and retains all right, title, and interest in and to the Services and any improvements, modifications, enhancements, or derivatives of the foregoing, all work product (including any software) and deliverables created, and all intellectual property rights relating to any of the foregoing. These Terms do not convey to you any rights of ownership in or related to the Services, work product, or deliverables. Except for the rights expressly granted in these Terms, no other rights are granted to you in, to, or under Scarf's intellectual property rights, whether by implication, estoppel, waiver, or otherwise.
6.2 Usage Data. Notwithstanding anything to the contrary in these Terms, you agree that Scarf may generate, collect, store, use, transfer, and/or disclose to third parties information gathered, prepared, computed, originated, or stored by Scarf resulting from the use or provision of the Services, including information derived from or based on Your Data ("Usage Data") (a) to perform data analytics, (b) to monitor, improve, and support the Services, (c ) to design, develop, and offer Scarf products and services, and/or (d) for any other lawful purpose. Scarf owns and retains all rights to Usage Data, and no rights are granted to you, whether by implication, estoppel, waiver, or otherwise in or to any Usage Data. Scarf has no obligation to provide or make any Usage Data available to you.
7. TERM, TERMINATION, AND SUSPENSION
7.1 Term. The term of these Terms commences on your acceptance of these Terms and, unless either party terminates your access to the Services as set forth in this Section 7 or as set forth in the applicable Order Form, continues until your access to the Services terminates or expires.
7.2 Termination for Convenience. Unless otherwise specified in an applicable Order Form, you may terminate your access to the Services by notifying Scarf in writing or by closing your account. Without limiting Scarf's other termination rights in these Terms (each of which we expressly reserve), Scarf may terminate your access to the Services at any time by notifying you in writing (with email notice being sufficient).
7.3 Suspension of Services; Additional Remedies. Without limiting Scarf's rights or remedies at law, in equity, or under these Terms (each of which we expressly reserve), you agree that Scarf may immediately and without notice to you (a) suspend or close your account, (b) pause or terminate your access to the Services, or (c ) take any other action in Scarf's sole discretion if (i) we suspect or determine, in our sole discretion, that (A) you have breached these Terms, (B) your use of the Services adversely affects or interferes with the normal operation of the Services or any service to others, (C) we are prohibited by an order of a court or other governmental agency from providing the Services, or (D) there exists a security incident that threatens the security of the Services, Your Data, or any data of others or (ii) for any other reason in Scarf's sole discretion. SCARF WILL HAVE NO LIABILITY FOR ANY DAMAGES, LIABILITIES, OR LOSSES AS A RESULT OF ANY ACTIONS TAKEN IN ACCORDANCE WITH THIS PARAGRAPH.
7.4 Effect of Expiration or Termination. Upon any expiration or termination of these Terms, all rights granted to you under these Terms and Scarf's obligations will immediately cease, and you will stop accessing or using the Services, except the following provisions will survive: Sections 3.1 (Restrictions), 4.1 (Ownership), 4.2 (Use of Your Data), 5 (Fees), 6 (Intellectual Property Rights), 7.4 (Effect of Expiration or Termination), 8 (Confidentiality), 9 (Indemnification), 10 (Disclaimers and Release), 11 (Limitation of Liability), 12 (Arbitration), and 13 (General Provisions).
8. CONFIDENTIALITY
8.1 Protection. You may be exposed to or receive certain information that is not generally known to the public and is marked as confidential or proprietary, or which, under the circumstances ought to be treated as confidential ("Confidential Information"). You agree that if you are exposed to or receive Confidential Information, you: (a) will protect Confidential Information from unauthorized disclosure using at least a commercially reasonable degree of care; (b) will not disclose Confidential Information to any third party; and (c) will not use the Confidential Information for any purpose.
8.2 Injunctive Relief. You expressly acknowledge and agree that no adequate remedy exists at law for an actual or threatened breach of this Section 8 and that in such event Scarf will be entitled to seek and obtain immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.
8.3 Feedback. You may from time to time voluntarily provide suggestions, enhancements, recommendations, requests for features or functionality, comments, or other feedback to Scarf regarding Scarf and/or the Services ("Feedback"). Feedback, even if designated as "confidential" or "proprietary" by you, will not create any confidentiality or other obligation for Scarf, and you hereby assign to Scarf all rights (including intellectual property rights), title and interest in and to such Feedback. All Feedback is Confidential Information.
9. INDEMNIFICATION
You will indemnify and hold Scarf and its affiliates, and its and their officers, employees, and agents (the "Scarf Parties") harmless against any damages, liabilities, losses, costs, or expenses (including reasonable attorneys' fees) arising from or in connection with your access to or use of the Services (including, without limitation, your breach or alleged breach of these Terms) (each, an "Indemnifiable Claim"). Additionally, you will, at Scarf's sole election, defend Scarf and the other Scarf Parties from any Indemnifiable Claims. If Scarf directs you to defend an Indemnifiable Claim, then (i) Scarf has the right to approve the counsel you select to defend the Indemnifiable Claim and (ii) Scarf may also have its own counsel participate in the defense and settlement of the Indemnifiable Claim at your expense. Scarf may also exclusively retain control of the defense of an Indemnifiable Claim. You will not settle an Indemnifiable Claim without Scarf's written consent.
10. DISCLAIMERS AND RELEASE
THE SERVICES ARE PROVIDED "AS IS," AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, SCARF HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SERVICES AND THIRD-PARTY SERVICE PROVIDERS, WHETHER STATUTORY, EXPRESS, IMPLIED, OR THROUGH A COURSE OF DEALING, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SCARF DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS, THAT THE SERVICES WILL COMPLY WITH APPLICABLE LAWS (OR THAT YOUR USE OF THE SERVICES WILL COMPLY WITH APPLICABLE LAWS), OPERATE UNINTERRUPTED, BE ERROR-FREE, OR THAT ALL DEFECTS WILL BE CORRECTED. SCARF MAKES NO WARRANTY CONCERNING TIMELINESS, ACCURACY, PERFORMANCE, QUALITY, RELIABILITY, OR COMPLETENESS OF ANY INFORMATION, RESULTS, OR OUTPUT PROVIDED, OBTAINED OR DERIVED THROUGH THE USE OF THE SERVICES OR CONCLUSIONS DRAWN THEREFROM AND YOU ASSUME SOLE RESPONSIBILITY AND LIABILITY FOR ACTIONS TAKEN OR DECISIONS MADE (OR NOT TAKEN OR MADE) AS A RESULT OF YOUR USE OF THE SERVICES OR ANY INFORMATION, RESULTS, OR OUTPUT PROVIDED, OBTAINED, OR DERIVED THROUGH THE USE OF THE SERVICES OR CONCLUSIONS DRAWN THEREFROM.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, YOU RELEASE SCARF AND THE OTHER SCARF PARTIES FROM RESPONSIBILITY, LIABILITY, CLAIMS, DEMANDS AND/OR DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN (INCLUDING, WITHOUT LIMITATION, CLAIMS OF NEGLIGENCE), ARISING OUT OF OR RELATED TO YOUR USE OF OUR SERVICES AND/OR DISPUTES BETWEEN USERS AND THE ACTS AND 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."
11. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, UNDER NO CIRCUMSTANCES WILL (A) SCARF OR ANY OF ITS SERVICE PROVIDERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR PERSONAL INJURY, PROPERTY DAMAGE, ERROR OR INTERRUPTION OF USE, LOSS, INACCURACY, OR CORRUPTION OF DATA, COVER, LOST PROFITS OR REVENUE, LOSS OF BUSINESS, OR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, OR INCIDENTAL DAMAGES, REGARDLESS OF THE FORM IN WHICH THE ACTION IS BROUGHT (INCLUDING NEGLIGENCE), ARISING OUT OF OR RELATING TO THE RELATIONSHIP BETWEEN THE PARTIES (INCLUDING THESE TERMS), INCLUDING THE USE OR INABILITY TO USE THE SERVICES, WHETHER OR NOT SCARF HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES, OR (B) SCARF'S TOTAL LIABILITY UNDER THESE TERMS, REGARDLESS OF LEGAL THEORY (INCLUDING NEGLIGENCE), EXCEED, IN THE AGGREGATE FOR ALL CLAIMS, $50 OR THE AMOUNT PAID BY YOU TO SCARF IN THE LAST THREE (3) MONTHS AND ASSOCIATED WITH THE SERVICES PROVIDED, WHICHEVER IS GREATER. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMIT. THE PARTIES ACKNOWLEDGE THAT THIS SECTION 11 REFLECTS THE AGREED UPON ALLOCATION OF RISK BETWEEN THE PARTIES AND THAT NEITHER PARTY WOULD ENTER INTO THESE TERMS WITHOUT THESE LIMITATIONS ON ITS LIABILITY. THIS LIMITATION ON LIABILITY WILL APPLY DESPITE THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY SET FORTH IN THESE TERMS.
12. ARBITRATION
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND SCARF TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH THE PARTIES CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND SCARF FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND SCARF 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. SCARF 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.
12.1 Informal Dispute Resolution Prior to Arbitration. For any dispute or claim that you have against Scarf, that Scarf has against you, or that you have or Scarf has arising from or relating to these Terms, the Services, or any aspect of the relationship between you and Scarf as relates to these Terms, the Services, including any privacy or data security claims (collectively, "Claims," and each a "Claim"), you and Scarf agree to attempt to first resolve the Claim informally via the following process:
•If you assert a Claim against Scarf, you will first contact Scarf by sending a written notice of your Claim ("Claimant Notice”) to Scarf by certified mail addressed to 548 Market St, PMB 17568, San Francisco, CA 94104-5401, USA or by email to help@scarf.sh. The Claimant Notice must (a) include your name, residence address, email address, and telephone number, (b) describe the nature and basis of the Claim, and (c ) set forth the specific relief sought.
• If Scarf asserts a Claim against you, Scarf will first contact you by sending a written notice of Scarf’s Claim ("Scarf Notice"), and each of a Claimant Notice and Scarf Notice, a "Notice") to you via email to the primary email address associated with your account. The Scarf Notice must (a) include the name of a Scarf contact and the contact’s email address and telephone number, (b) describe the nature and basis of the Claim, and (c) set forth the specific relief sought.
• If you and Scarf cannot reach an agreement to resolve the Claim within thirty (30) days after you or Scarf 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 Scarf first send the applicable Notice so that the parties can engage in this informal dispute-resolution process.
12.2 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 Scarf, including any disputes in which you or Scarf seek injunctive or other equitable relief for the alleged unlawful use of your or Scarf's intellectual property or other infringement of your or Scarf’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 12.1 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.
12.3 Federal Arbitration Act. These Terms affect interstate commerce, and the enforceability of this Section 12 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the "FAA"), to the extent permitted by law. As limited by the FAA, these Terms, and the AAA Rules (as defined below), 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.
12.4 Arbitration Procedure. 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. The then-current version of the AAA’s Commercial Arbitration Rules and Mediation Procedures, which are available on the AAA’s website (adr.org) (the "AAA Rules"), as amended by these Terms as follows, will apply to any arbitration between you and Scarf:
• YOU AND SCARF 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 SCARF 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 Scarf 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.
• Any in-person appearances will be held in San Francisco, California.
• You and Scarf 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 Scarf 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.
• 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 Scarf for you.
• 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 Scarf or against you by the same or coordinated counsel or are otherwise coordinated.
o 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 Scarf understand and agree that when twenty-five (25) or more similar claims are asserted against Scarf or you by the same or coordinated counsel or are otherwise coordinated resolution of your or Scarf 's Claim might be delayed.
o For such coordinated actions, you and Scarf also agree to the following coordinated bellwether process. Counsel for claimants and counsel for Scarf 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.
o 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.
o 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.
o 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 Scarf's case is selected for a bellwether process, withdrawn, or otherwise resolved.
o A court shall have authority to enforce this paragraph and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against Scarf or you.
12.5 One Year to Assert Claims. To the extent permitted by law, any Claim by you or Scarf relating in any way to these Terms, the Services, or any aspect of the relationship between you and Scarf as relates to these Terms or the Services, must be filed within one year after such Claim arises; otherwise, the Claim is permanently barred, which means that you and Scarf will not have the right to assert the Claim.
12.6 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 Scarf with notice of your decision to opt-out via email at help@scarf.sh or by certified mail addressed to 548 Market St, PMB 17568, San Francisco, CA 94104-5401, USA. 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 13.9.
12.7 Rejection of Future Arbitration Changes. You may reject any change we make to Section 12 (except address changes) by personally signing and sending Scarf a notice within 30 days of the change via email at help@scarf.sh or by certified mail addressed to 548 Market St, PMB 17568, San Francisco, CA 94104-5401, USA. If you do, the most recent version of Section 12 before the change you rejected will apply.
12.8 Severability. If any portion of this Section 12 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 this Section 12 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 12; and (c) 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 12 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 12 will be enforceable.
12.9 Disputes Outside the United States. Notwithstanding any terms to the contrary in these Terms, if you reside in any country outside of the United States, you may bring legal proceedings regarding these Terms either by following the arbitration procedure detailed above in this Section 12 or, if given the right by Applicable Laws, 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 Laws, you may submit the dispute to the courts of the jurisdiction in which you reside.
13. GENERAL PROVISIONS
13.1 Entire Agreement. These Terms constitute the entire understanding of the parties with respect to their subject matter and supersede all prior or contemporaneous proposals, understandings, and agreements. If you provide Scarf with any pre-printed terms and conditions that appear on any purchase order or other form document, such terms will be of no force or effect.
13.2 Assignment. You may not assign or transfer these Terms or any of your rights or obligations under it without Scarf's prior written consent. Scarf may freely assign these Terms, including to its affiliates. Any attempted assignment in violation of this paragraph will be null and void. Subject to the foregoing, these Terms are binding upon and inures to the benefit of the parties and their respective successors and permitted assigns.
13.3 Severability. If a court finds any term of these Terms, other than Section 12, to be invalid or unenforceable, that term will be enforced to the maximum extent permissible so as to reflect the parties’ intent, and the remainder of these Terms will remain in full force and effect.
13.4 Waiver. Either party's delay or failure to exercise any right under these Terms or any law does not mean a party waives that right or any other rights under these Terms in the future. No waiver of any provision of these Terms, or any rights or obligations of either party under these Terms, will be effective except pursuant to a written instrument signed by the party against whom the waiver is sought.
13.5 Use of Name and Logo. Notwithstanding any terms to the contrary in this Agreement, you consent to Scarf's use of your name and logo on Scarf's website and on Scarf's promotional and marketing related materials, identifying you as a customer of Scarf and describing your use of the Services.
13.6 Independent Contractors. Nothing contained in these Terms will be construed to create a joint venture or partnership between the parties. Neither party is authorized as an agent or legal representative of the other party. Neither party will have the right or authority to bind or create any obligation on the other party.
13.7 Force Majeure. Scarf is excused from performance of these Terms and will not be liable for any delay in whole or in part caused by any event outside of its control.
13.8 No Third-Party Beneficiary. Nothing contained in these Terms will be deemed to create, or be construed as creating, any third-party beneficiary right of action upon any third party in any manner whatsoever.
13.9 Governing Law and Venue. These Terms will be governed in all respects in accordance with the laws of the State of California, without regard to conflict of law principles that would cause the laws of any other jurisdiction to apply. Except as set forth in Section 12, you expressly agree that federal and state courts located in San Francisco will have exclusive jurisdiction over any action or claim that you bring that arises out of or relating to these Terms. You expressly consent to personal jurisdiction in any such court and hereby irrevocably waive any objection to or claim of lack of jurisdiction or forum non conveniens.
13.10 Notices. By using the Services, you agree (a) to receive communications (including any communications that are required to be issued in writing hereunder) electronically, including via email, (b) that any such electronically-issued communications will satisfy any legal communication requirements, including those that require notices to be in writing, (c) that, without limiting Scarf's notification rights in the fourth introductory paragraph of these Terms, Scarf may issue notices to the email or other address provided by you to Scarf, and (d) that such notice will be effective on delivery. Notices to Scarf, including termination notices, must be delivered to help@scarf.sh or by certified mail to 548 Market St, PMB 17568, San Francisco, CA 94104-5401, USA. Such notice will be effective on receipt.
13.11 Interpretation. The headings of these Terms are for reference only and will not be used to interpret the meaning of these Terms. Any reference to "includes" or "including" will be understood to be exemplary and not limiting and followed by "but not limited to." Each party has had the opportunity to review these Terms with legal counsel, and there will be no presumption that ambiguities will be construed or interpreted against the drafter.
