• “Suppliers” means third-party vendors that provide products and/or services for the operation of the TEND Platform.  For example, TEND uses a third-party vendor (currently Square, www.squareup.com) to provide online/mobile payment processing services for the TEND Platform.
  

• “TEND Software” means any and all software tools, applications and services, whether or not downloadable, comprised in or accessible on or through the TEND Platform.  For the purposes of these Terms of Use, all TEND Software shall be deemed a part of the TEND Platform.
  

• “TEND Content” means any and all content, data and information (in whatever form or medium) comprised in or accessible on or through the TEND Platform, including, without limitation: text, graphics, designs, artworks, images, photos, videos, audios, forms and templates (such as those designed to help users track, record, or organize their farm data, generate analytics reports, build their farm websites/online stores, etc., and whether or not downloadable, printable, or customizable), instructions, descriptions, messages, advertisements, and TEND Trademarks (as defined below); but specifically excluding any User Content (as defined below).  For the avoidance of doubt, “TEND Content” also includes the following: (i) the “look and feel” and user interface designs of the TEND platform and its components; and (ii) the programming code (including HTML code) of the TEND platform and its components, whether in human-readable or machine-readable form.  For the purposes of these Terms of Use, all TEND Content shall be deemed a part of the TEND Platform.
  

• “TEND Trademarks” means, collectively, the “Tend” name and logo, the Tend.ag domain name, the Tend.com domain name, and any and all other marks and logos owned or used by TEND, whether existing now or in the future, and whether registered or unregistered.  As used herein, TEND Trademarks also include its Suppliers’ marks and logos as used by TEND under license.
  

• “User Content” means any and all of the following: (i) account information provided by users, including identifying information about themselves and their farms; (ii) farm business and operational data provided by users in connection with their use of the TEND Platform, including, for example, farm crops, yields, and sales data, and farm customer contact lists; (iii) farm analytics generated by users through the use of the analytics tools of the TEND Platform; (iv) user-provided photos, images, artworks, videos, audios, advertisements, descriptions, messages, and other content about their farms, and including also logos, trademarks, service marks, trade names and other trade identifiers associated with their farms; and (v) User Feedback (as defined below).  To the extent your User Content includes any element of your identity (name, voice, photograph, likeness, biographical information, etc.), you acknowledge and agree that any such element of your identity will be treated as part of your User Content.
  

• “User Feedback” means any idea, opinion, suggestion, comment, review, or other feedback (whether solicited or unsolicited) provided by users to TEND in connection with their use of the TEND Platform.
  

• TEND’s legal name is Spiraledge, Inc., d/b/a/ TEND.
  
• TEND’s address is 4300 Port Union Road, West Chester, OH 45011.
  
• For complaints, California residents may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs, in writing at 1625 N. Market Blvd., Suite N-112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210, or by email at [email protected].
  

1. By registering an account on the TEND Platform, you represent and warrant that all account information you submit is your own information and is truthful and accurate.  You acknowledge and agree that we may immediately suspend or terminate your account and your access to the TEND Platform if we have any reason to believe that you have misrepresented or provided false account information to us.
   
   
2. It is your responsibility to keep your farm’s TEND account information (including contact, billing, and other information about your farm) accurate and current.  This includes updating your farm’s account information in the event of a change of ownership of your farm.  For example, if your farm is sold or transferred to a new owner, your farm’s TEND account will need be updated to reflect the new owner’s information, and by continuing to use the account, the new owner will be deemed to have accepted, and will be bound by, these Terms of Use and our Privacy Policy.  Failure to keep your farm’s account information up to date may result in suspension or cancellation of the account (at TEND’s sole discretion).  As the account holder, you are responsible for safeguarding your farm’s account login information, and you should notify us immediately in the event your account login has been stolen, lost, or used by another without your permission.  If your farm’s account has two or more  authorized users, you are responsible for all your farm users’ activities under the account.
   

1. By purchasing a Subscription, you represent and warrant that you are the account holder (or an authorized user) of the credit/debit card or payment account that you use to pay for your Subscription purchase, and such payment card or account has sufficient funds to cover your Subscription purchase.  You acknowledge and agree that we may immediately suspend or terminate your Subscription and your access to the TEND Platform if we have any reason to believe that you have misrepresented or provided false payment information to us.
   
   
2. Once your Subscription purchase is processed and completed, we will send you a Subscription confirmation email that includes details about your Subscription, including the start date and end date of your Subscription, your renewal option, and the applicable Subscription fee charged to your payment card or account.  If you believe there is an error in any detail about your Subscription, please immediately contact our customer service at [email protected] .
   
   
3. Unless you cancel your Subscription before its scheduled end date pursuant to Section 3.2(v) below, all Subscriptions are subject to automatic renewal, which means that, on the scheduled end date of your Subscription, your payment card/account that is on file with TEND will automatically be charged the then-applicable Subscription fee for a new Subscription term.  A monthly Subscription will automatically renew for another month, and a yearly Subscription will automatically renew for another 12-month period; except that you may elect to have your Subscription renewed to a different plan (i.e., from monthly to yearly, or from yearly to monthly).
   
   
4. Unless expressly otherwise indicated by TEND, a purchased Subscription is NON-REFUNDABLE.  This means that if you cancel your Subscription before its scheduled end date, cancellation will not take effect until the scheduled end date of your Subscription, and the Subscription fee you already paid will not be refunded.
   
   
5. All cancellation requests must be submitted electronically by clicking “Cancel Subscription” in the Subscription settings of the web application.using our online cancellation request form (click here).  Once processing is completed, we will send you a cancellation confirmation via email, and you will have access to your account until the end of the paid billing cycle. Once cancellation takes effect, you will no longer have access to those tools and service features covered by your cancelled Subscription, including any User Content you have stored on the TEND Platform using those tools and service features.  It is your responsibility to download such stored User Content from the TEND Platform prior to cancelling your Subscription.  Upon cancellation of your Subscription, we reserve the right to delete such stored User Content from the TEND Platform.
   

   
   

   IMPORTANT: If you do not want your Subscription renewed, please be sure to cancel your Subscription prior to its scheduled end date.  Otherwise, we cannot guarantee that your Subscription will be cancelled in time so that you won’t be charged for renewal.
   

   
   
6. From time to time we may offer our users an opportunity to try out some of our Subscription-based tools and features for free for a limited time (“Free Trial”).  If you participate in a Free Trial, you will pay nothing during the specified trial period for using the applicable tools and features.  At the conclusion of the Free Trial, you will need to purchase a Subscription if you wish to continue to use the applicable tools and features.
   
   
7. We reserve the right to change our Subscription plan terms (including pricing) at any time.  If you have an existing Subscription, we will notify you of any price change for the upcoming renewal term at least fifteen (15) days before the beginning of the renewal term in which the new price will be effective, and such notice may be sent via email and/or posted directly to your account on the TEND Platform.
   

   
   

   IMPORTANT: If you do not cancel your Subscription prior to its scheduled end date pursuant to Section 3.2(v) above, you will be deemed to have agreed to the new price and have authorized us to charge your payment card/account based on the new price at the time of renewal of your Subscription.
   

   
   

1. You acknowledge and agree that: (a) the above license is personal to you, which means that only your farm (including those acting on your behalf, such as your employees and agents) are authorized to access the TEND Platform and that you may not sell, lend, rent, lease, transfer, assign, sublicense, or otherwise provide such access to any third party (except with TEND’s express written approval); and (b) the above license is immediately revocable and terminable by TEND, if TEND determines, in its sole judgement, that you are in violation of these Terms of Use or any applicable law or that your use of the TEND Platform may expose TEND or its Suppliers to liability of any kind, or may adversely affect the reputation or goodwill of TEND or its Suppliers.
   
   
2. You further acknowledge and agree that your use of any TEND Software, including any downloaded TEND Software, is subject to the following additional terms and conditions:
   
   
   
   1. Any such TEND Software is licensed, and NOT sold or transferred, to you.
      
      
   2. You may not distribute, sell, offer to sell, lend, rent, lease, transfer, or otherwise furnish any TEND Software to a third party.
      
      
   3. You may not modify, translate, or otherwise make derivative works from, or reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of, any TEND Software.
      
      
   4. You may not bypass, disable, deactivate or render ineffective any copy control, copy protection, or other digital rights management (DRM) mechanism, scheme, device, program, tool, code or file contained or embedded in or associated with any TEND Software.
      
      
   5. All TEND Software is subject to U.S. export control laws and regulations and may not be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Sudan, Libya, North Korea, Iran, Syria, or any other country to which the U.S. has embargoed goods, or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.  By downloading, installing, or using any TEND Software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.  You may not download, install, use, export or re-export any TEND Software or any underlying information or technology except in full compliance with U.S. export control laws and regulations.
      
      
   6. You acknowledge and agree that, unless expressly otherwise indicated by TEND, TEND and its Suppliers are not obligated or required to provide any assistance or support (including any technical or customer support) with respect to your download, installation, or use of any TEND Software.
      
      
      
   7. From time to time TEND and/or its Suppliers may make changes and updates to certain TEND Software, and you understand that it may be necessary for you to download and install the changes and updates in order for such TEND Software to function properly on your computer or mobile device.
      
      

• use the TEND Platform or any TEND Software or TEND Content for any unlawful purpose, including, without limitation:  operating any scam or fraudulent scheme (such as a pyramid or ponzi scheme); impersonating another, or making unauthorized use of another’s information; selling or offering to sell products without requisite licenses, permits, approvals or certifications; conducting false or deceptive advertising, or engaging in any other unfair trade practice; disseminating junk email, spam, or other unsolicited and unwanted messages or communications; or collecting personal information from or about others (including your farm customers) without their knowledge or consent, including through “phishing” or under any other false pretense;
  
  
  
• use the TEND Platform or any TEND Software or TEND Content to upload, store, display, transmit, publish or distribute any content, data or information that: (i) is unlawful; threatening; harassing; abusive; hateful; discriminatory; derogatory; obscene; vulgar; pornographic; excessively violent; false, deceptive or misleading; defamatory or libelous; or otherwise offensive; (ii) promotes, solicits or aids crimes or illegal activities; (iii) promotes or solicits violence; (iv) promotes or solicits gambling, public intoxication, underage drinking, or drug abuse; (v) promotes or solicits animal cruelty; (vi) contains, promotes, or links to fake offers, scams, or other fraudulent schemes (such as pyramid schemes and ponzi schemes); (vii) contains, promotes, or links to viruses, worms, Trojan horses, spyware, malware, ransomware, or other malicious, harmful or disruptive code or material that is designed to damage, interfere with, intercept, lock out, or expropriate any software, hardware, information or data; or (viii) violates another’s copyright, trademark, trade secret, patent, right of publicity, right of privacy, contractual right, or other property or proprietary right of any kind (including, without limitation: using another’s name, likeness, photo, or other identity without consent);
  
  
  
• copy, reproduce, distribute, sell, lend, rent, lease, or modify, translate, or otherwise make derivative works from, the TEND Platform or any TEND Software or TEND Content;
  
  
  
• use the TEND Platform for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes, including, without limitation, for the purpose of developing any product or service to compete against TEND;
  
  
  
• offer the use of the TEND Platform or any TEND Software or TEND Content as part of a service bureau, time-sharing, or other similar arrangement;
  
  
  
• interfere in any way with the operation of the TEND Platform or any TEND Software or TEND Content, or any server, network or system associated therewith, including, without limitation: hacking, mail-bombing, flooding, overloading, or making “denial of service” attacks; probing, scanning or testing the vulnerability of the TEND Platform or any TEND Software or TEND Content, or any server, network or system associated therewith; breaching or circumventing firewall, encryption, security or authentication routines; accessing data not intended for you, or accessing another’s account that you are not expressly authorized to access;
  
  
  
• use any automated program, tool or process (including, without limitation, web crawlers, robots, bots, spiders, or automated agents or scripts) to access the TEND Platform, or to register multiple accounts on the TEND Platform, or to generate automated searches, requests, or queries to the TEND Platform, or to strip, scrape, extract, or mine data or information from the TEND Platform (except, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the TEND Platform for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file);
  
  
  
• remove, erase, conceal, alter, or otherwise tamper with TEND or third-party intellectual property, attribution, or other legal notices included in or associated with the TEND Platform or any TEND Software or TEND Content;
  
  
  
• frame, or otherwise create a browser or border environment around, any portion of the TEND Platform, or any TEND Software or TEND Content;
  
  
  
• use any of TEND Trademarks: (i) for advertising, promotional, marketing, sale, or any other commercial or for-profit purposes (unless with the express prior written consent of TEND); (ii) in any way that falsely suggests or implies an association or affiliation with, or endorsement, sponsorship or approval by, TEND; or (iii) in any way that defames or disparages TEND or its Suppliers; or
  
  
  
• otherwise use the TEND Platform in a way that violates these Terms of Use or any applicable law.
  
  
  

1. By using the TEND Platform, and for as long as you maintain an account on the TEND Platform, you expressly and irrevocably give TEND permission:
   
   
   
   1. to do all things with your User Content as are reasonably necessary for TEND to provide, host, operate, manage, maintain and improve the TEND Platform, including performing tasks with your User Content as directed by you, such as: tracking, recording, storing, processing, organizing and managing your farm data; generating and reporting your requested analytics; enabling you to build and publish your farm website/online store; enabling you to organize and host farm events; and enabling you to stay connected with your farm customers through emails, newsletters, events, etc.; and
      
      
   2. to use, reproduce, publicly display, and distribute your User Content for the purposes of marketing and promoting the TEND Platform (provided, however, that TEND will not publish or disclose to others your farm business or operational data or analytics without your express written permission).
      
      
2. If you submit User Feedback to TEND, you acknowledge and agree as follows:
   
   
   1. You expressly and irrevocably give TEND permission to use your User Feedback indefinitely for any and all purposes (including, without limitation, for marketing and promoting the TEND Platform, for making improvements to the TEND Platform, and for developing new TEND products and services).
      
      
   2. Your submission of User Feedback is voluntary and consensual and is made without any condition or reservation of rights, including, without limitation, any condition of compensation, payment, credit, attribution, secrecy or confidentiality.  No contractual, fiduciary or confidential relationship of any kind (whether express or implied) is created between you and TEND by reason of your submission of User Feedback.  Your submission is not returnable and may be retained indefinitely by TEND.
      
      
3. You represent and warrant that:
   
   
   1. you own or control all rights (including intellectual property rights) necessary for TEND to make use of your User Content as expressly permitted under these Terms of Use; and
      
      
   2. your User Content does not contain any third party’s confidential or proprietary information, does not violate any right (including, without limitation, any intellectual property right, right of privacy, or right of publicity) of any third party, and does not violate any applicable law.
      
      
4. You acknowledge and agree that TEND will have the absolute right to remove, delete, or block or disable access to, any of your User Content which TEND determines, in its sole judgment, violates these Terms of Use or any applicable law, or may expose TEND or its Suppliers to liability of any kind, or may adversely affect the reputation or goodwill of TEND or its Suppliers.
   

1. All products are sold by you, and not by TEND or its Suppliers.  YOU ASSUME ALL RESPONSIBILITIES FOR PRODUCTS YOU SELL, including: (i) the responsibility to ensure the safety, quality, and proper labeling and packaging of your products and to comply with all laws and regulations and industry standards applicable to your products; (ii) the responsibility to make clear and truthful disclosure to your customers of all material facts, information, and sales terms and conditions concerning your products; (iii) the responsibility to arrange for shipping and delivery of your products to your customers; (iv) the responsibility to provide post-sale customer service and support (including processing returns and refunds) to your customers; and (v) the responsibility to handle and resolve all claims and disputes with your customers concerning your products.
   
   
2. In no event will TEND or its Suppliers have any responsibility or liability of any kind for any products you sell, including, without limitation, any responsibility or liability for personal injuries (including illness and death) and/or economic losses suffered by your customers as a result of: (a) the consumption or use of any product you sold; (b) your non-delivery or late delivery of any product; (c) your failure or refusal to accept a return, to make an exchange, to issue a refund or credit, or to honor a product warranty; (d) your misrepresentation or non-disclosure of any material fact concerning your products; or (e) any unlawful, unfair, or deceptive business or trade practice by you in your transactions or dealings with customers.
   
   
3. You will pay the applicable designated Supplier for payment processing (currently Square) a service fee (click here for Square’s current rates) for each sales transaction you make (hereinafter, “Transaction Service Fee”), regardless of the method of payment by your customers.
   
   

• Your link must be a text-only link.  The TEND logo may not be used for linking purposes, except with the express prior written consent of TEND.
  
  
  
• You do not frame or otherwise create a browser or border environment around any portion of the TEND Platform or any TEND Software or TEND Content.
  
  
  
• You do not link to the TEND Platform from any adult or sexually oriented website.
  
  
  
• You do not misrepresent or falsely suggest that your website or product or service is sponsored, endorsed or approved by, or affiliated with, TEND.
  
  
  
• You do not disparage TEND, or publish false, misleading or inaccurate information about TEND.
  
  
  

1. your use or misuse of, or your reliance upon the TEND Platform (including your use or misuse of, or your reliance upon, any TEND Software or TEND Content or another’s User Content);
   
   
2. your violation of these Terms of Use or any applicable laws or regulations;
   
   
3. any of your User Content;
   
   
4. any product sold or provided by you;
   
   
5. any of your transactions or dealings with your customers, other users, or any other third parties;
   
   
6. any of your communications to your customers;
   
   
7. the conduct of your farm business, including any of your business or trade practices.
   
   

• a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  
  
  
• identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works are covered by a single notification, a representative list of such works;
  
  
  
• identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit TEND to locate the material;
  
  
  
• information reasonably sufficient to permit TEND to contact the complaining party, such as an address, telephone number, and if available, an electronic mail address at which the complaining party may be contacted;
  
  
  
• a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
  
  
  
• a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  
  
  

• your physical or electronic signature;
  
  
  
• identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
  
  
  
• a statement by you under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification; and
  
  
  
• your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which you are located (or in the State of California, U.S.A., if you reside outside of the U.S.), and that you will accept service of process from the person who filed the notice of copyright infringement or an agent of such person.
  
  
  

1. THE TEND PLATFORM (INCLUDING ALL TEND SOFTWARE AND TEND CONTENT) AND ALL USER CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED.  TO THE FULLEST EXTENT PERMITTED BY LAW, TEND AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE TEND PLATFORM (INCLUDING ALL TEND SOFTWARE AND TEND CONTENT) AND ALL USER CONTENT, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES OF TITLE AND NON-INFRINGEMENT.  WITHOUT LIMITATION TO THE GENERALITY OF THE FOREGOING, TEND AND ITS SUPPLIERS DO NOT WARRANT THAT: (A) THE TEND PLATFORM (INCLUDING ALL TEND SOFTWARE AND TEND CONTENT) AND ALL USER CONTENT WILL BE ACCURATE, ERROR-FREE, UP TO DATE, COMPLETE, OR USEFUL, OR WILL BE UNINTERRUPTED, OR WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECT OR ERROR IN THE TEND PLATFORM (INCLUDING ANY TEND SOFTWARE OR TEND CONTENT) OR IN ANY USER CONTENT WILL BE CORRECTED; OR (C) THE TEND PLATFORM (INCLUDING ALL TEND SOFTWARE AND TEND CONTENT) AND ALL USER CONTENT WILL BE SECURE AND FREE OF ANY VIRUS OR OTHER HARMFUL COMPONENT.  ANY USE OF OR RELIANCE UPON THE TEND PLATFORM (INCLUDING ANY TEND SOFTWARE OR TEND CONTENT) OR ANY USER CONTENT IS ENTIRELY AT YOUR OWN RISK.
   
   
2. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL TEND AND/OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY OTHER USER (WHETHER UNDER CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY OR ANY OTHER LEGAL OR EQUITABLE THEORY) FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOSS OR CORRUPTION OF DATA, LOSS OF BUSINESS, LOSS OF BUSINESS OPPORTUNITY, LOSS OF SALES, LOSS OF INCOME, REVENUE OR PROFIT, LOSS OF GOODWILL, OR LOST OR WASTED STAFF TIME) ARISING OUT OF OR RELATED TO THE TEND PLATFORM (INCLUDING ANY TEND SOFTWARE OR TEND CONTENT), OR ANY USER CONTENT, OR YOUR USE OF OR RELIANCE UPON THE TEND PLATFORM (INCLUDING ANY TEND SOFTWARE OR TEND CONTENT) OR ANY USER CONTENT, EVEN IF TEND AND ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
   
   
3. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL TEND AND/OR ITS SUPPLIERS BE LIABLE TO ANY USER FOR ANY DAMAGES IN EXCESS OF THE SUBSCRIPTION FEE AMOUNT (IF ANY) ACTUALLY PAID BY SUCH USER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT FOR WHICH DAMAGES ARE CLAIMED.
   
   

1. We encourage you to contact our Customer Service department if you have concerns or complaints about the TEND Platform.  Generally, customer complaints can be satisfactorily resolved in this way.  If we cannot resolve your concerns informally, disputes between you and TEND shall be resolved pursuant to this Section 7.
   
   
2. You and TEND agree to arbitrate all disputes and claims (including the interpretation and scope of this clause, and the arbitrability of the dispute or claim) relating to the TEND Platform, including, without limitation, all claims arising out of or relating to any aspect of your relationship with TEND, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, that arose either before or during this, or any prior, version of these Terms of Use, or that may arise after termination of your relationship with TEND.
   
   
3. Arbitration is more informal than a lawsuit.  Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to limited review by courts. Under this Agreement, arbitrators can award the same individual relief affecting individual parties that a court can award, including damages and an award of attorneys' fees, if the applicable law allows.  BY AGREEING TO RESOLVE DISPUTES THROUGH ARBITRATION, YOU AND TEND AGREE TO EACH UNCONDITIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY OR COURT (except small claims court).  Instead of arbitration, either party may bring an individual action in a small claims court for disputes or claims that are within the scope of the small claims court's authority.
   
   
4. The Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision.  The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes, administered by JAMS pursuant to JAMS’ Streamlined Arbitration Rules and Procedures, as modified by this Terms of Use, and unless otherwise agreed upon by the parties in writing.  For more information on JAMS, its rules and procedures, and how to file an arbitration claim, you may call JAMS at 800-352-5267 or visit the JAMS website at http://www.jamsadr.org.  Arbitration will proceed at a location that the arbitrator selects within 100 miles of your primary residence, unless you and TEND agree otherwise.
   
   
   
5. The arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.  The arbitrator’s award shall be final and may be enforced in any court of competent jurisdiction.
   
   
6. In the event that you are able to demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to costs of litigation, TEND will pay as much of your arbitration filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation.  TEND also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration.  However, TEND will not pay your share of the arbitration fees if the arbitrator finds that either your claim or the relief sought is frivolous or brought for an improper purpose, as measured by the standards of Federal Rule of Civil Procedure 11(b).
   
   
7. YOU AND TEND AGREE THAT ANY CLAIMS BROUGHT BY YOU OR TEND WILL BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY AND WILL NOT BE BROUGHT AS A CLASS, REPRESENTATIVE, COLLECTIVE OR PRIVATE ATTORNEY GENERAL ACTION.  The arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class, representative, or private attorney general proceeding.  You and TEND agree to seek only such individual relief – whether in the form of individual damages, an individualized injunction, or other non-monetary individual relief – as is necessary to resolve any individual injury that either you or TEND has suffered or may suffer.
   
   
8. The requirement that claims be brought in binding arbitration only in an individual capacity and not as a representative, private attorney general, or class member (“Class Action Waiver”) is non-severable.  If the Class Action Waiver is found to be unenforceable, then the entirety of this arbitration provision shall be null and void, with the exception of the next sentence.  In the event the Class Action Waiver is found to be unenforceable, or in the event the agreement to arbitrate is found to not apply to a dispute, that such action between you and TEND shall proceed in the federal or state courts located in Santa Clara County, California.
   
   
9. Notwithstanding any provision in these Terms of Use to the contrary, TEND agrees that if TEND makes any change to this arbitration provision, such change will not be applicable to any dispute to which you had previously provided notice to TEND.
   
   
10. If you do not want to be bound to this agreement to arbitrate, you must opt out of it within 30 days of it first becoming applicable to you (i.e., within 30 days of you first agreeing to a version of these Terms of Use containing an arbitration agreement).  To opt out of this agreement to arbitrate, you must send a letter or postcard to TEND’s headquarters, to the attention of the “Legal Department” and state that you do not want to be bound by this arbitration agreement.  TEND’s address is 4300 Port Union Road West Chester, OH 45011.
    
    
11. These Terms of Use and your use of the TEND Platform are governed by the laws of the State of California, subject to the Federal Arbitration Act, without regard to its choice of law provisions.
    
    
12. These Terms of Use expressly exclude and disclaim the terms of the U.N. Convention on Contracts for the International Sale of Goods, which shall not apply to any transaction conducted through or otherwise involving the TEND Platform.