Terms of Service
Last updated: April 23rd, 2023
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
BY CLICKING “COMPLETE,” INSTALLING, DOWNLOADING, ACCESSING, OR OTHERWISE USING THE SERVICE, YOU ARE REPRESENTING TO US THAT YOU HAVE READ AND UNDERSTAND THESE TERMS, YOU ARE OVER THE AGE OF 18, AND ARE CONSENTING TO BE LEGALLY BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS OR CANNOT MAKE THESE REPRESENTATIONS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND IVELLA’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY IVELLA AND YOU TO BE BOUND BY THESE TERMS.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 15, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND IVELLA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. See Section 15.
1. Account Registration
You must have a registered Account on the Service to access most features of the Service. During registration of your Account, you will be required to provide us with some information about yourself, such as your name, email, address, phone number, SSN, birth date, and other information. You agree that: (a) the information you provide to us is accurate and that you will keep it accurate and up to date at all times; (b) you are solely responsible for maintaining the confidentiality of your Account and for restricting access to it; and (c) you accept responsibility for all activities that occur in your Account or under your access credentials. You acknowledge and agree that Ivella is not responsible for any third-party access to your Account that results from theft or misappropriation of your Account. You agree to immediately notify us at email@example.com of any unauthorized use of your access credentials or otherwise of your Account or any other known or suspected breach of security. We will not be liable for any loss or damage arising from your failure to comply with this section.
(a) Split Account. The Split Account is designed to help couples more easily split their expenses. The Split Account is comprised of two individual deposit Accounts that are linked virtually through Ivella. In order to create a Split Account you’ll want to select Split Account in registration and then invite or connect your Account to your partner’s account on the Service (your “Partner’s Account”). After your Partner’s Account is connected to your Account, the two accounts together constitute your and your partner’s split account on the Service (your “Split Account”), and you and your partner may set a default ratio in any 1% increment (e.g., 50%:50%) for splitting how expenses are paid out from your Account and your Partner’s Account (your “Split Account Ratio”). You and your partner may change the Split Account Ratio from time to time, but only if you both agree to the change. When you use the Ivella Visa® Debit Card to complete a transaction, the total transaction amount will be charged to your Account, and Ivella will facilitate a book transfer from the Partner’s Account back to your Account for your Partner’s Account obligation of that payment (their “Split Obligation”). For example, if you and your partner set a Split Account Ratio of 40%:60% (with 60% being deducted from your Partner’s Account and 40% being deducted from your Account) and then you use the Ivella Visa® Debit Card to complete a $100 transaction, $100 will be reduced from your Account initially, and $60 will be reduced from your Partner’s Account and transmitted by our Partner Bank to your Account in order to align your payment obligation with the Split Account Ratio and reduce your payment amount to $40 accordingly. Your split of this payment will then be 40%:60% or your transaction (“Split Ratio”). You and/or your partner may set rules around how or when transactions get split (“Transaction Preferences”). One such Transaction Preference is a (“Transaction Limit”), whereby, if transactions exceed a user-defined Transaction Limit, those transactions are held for approval by the Partner’s Account before being split. If no Transaction Limit is set, or a transaction is below such limit, transactions can and may be split immediately. Similarly, you and/or your partner may opt to set a (“Daily Limit”), whereby, a limit is set on the aggregate Split Obligation for a user before transactions are held for approval. A single day is defined as 12:00 AM PT to 12:00 AM PT, the start of the following calendar day. After a transaction is split, the transaction may be modified to a different ratio than your Split Account Ratio, subject to your partner’s approval, depending on your account settings. When a modification is made, Ivella processes a book transfer on the difference between that transaction’s current Split Ratio and the new Split Ratio. If your Split Account contains, in aggregate between your Account and your Partner’s Account, sufficient funds to pay for a transaction using the Ivella Visa® Debit Card, then that transaction may be processed, regardless of whether your Account or your Partner’s Account independently has sufficient funds to facilitate the transaction. If you make a transaction where your Account has sufficient funds to facilitate the transaction, but your Partner’s Account does not have sufficient funds to fulfill their Split Obligation, then this transaction will be processed and placed into a state called (“Failed to Split”). Failed to Split transactions are automatically re-processed when your Partner’s Account has sufficient balance in order to cover their Split Obligation of that payment. If there are multiple Failed to Split transactions on an account, and sufficient balance in order to reconcile some, or all, of those transactions, then those transactions will be reconciled oldest to newest. Failed to Split transactions will not prevent accounts from being unlinked, therefore, it is your responsibility to resolve any pending Failed to Split transactions before unlinking accounts with your partner. Ivella, our Partner Bank, or any third-parties will not be held liable for any balance owed due to a transaction being Failed to Split. If your Split Account contains an insufficient amount of money to fulfill a transaction request using a Ivella Visa® Debit Card, then Ivella will not be required to fulfill the request. Title to any money stored in your Account will remain with you at all times and will not transfer to us, and, as the owner of money in your Account, you bear all risk of loss of that money.
(b) Joint Account. The Joint Account is designed to help share their finances. The Joint Account is comprised of one depository account with two account holders. When registering for a Joint Account on Ivella, you’ll automatically be given two accounts: a checking account (“Joint Checking Account”) and a savings account (“Savings Pod”). For more information on the legal policies regarding Joint Accounts, please reference our Deposit Account Agreement.
(c) Savings Pods. Savings Pods are designed to help couples save towards various goals. Savings Pods are Joint Accounts that are also interest-bearing. Because Savings Pods are Joint Accounts, either partner is able to close a Savings Pod at any time, for any reason, with or without consent from the other party. For more information on the legal policies regarding Savings Pods, please reference our Deposit Account Agreement. As a basic Ivella Joint Account holder, you’ll be entitled to one (1) Savings Pod account. If you choose to upgrade to our premium subscription (“Pods+”) you’ll be entitled to create up to 500 Savings Pods accounts, set savings goals, add up to two (2) virtual cards per Savings Pod, and earn our highest offered APY rate regardless of direct deposit status. You are always required to have one (1) Savings Pod open at all times. If you have more than one (1) Savings Pod open you’ll be able to close any additional Savings Pods. When closing a Savings Pod it is highly encouraged that you transfer any remaining balance to your preferred Account before doing so. If you close a Savings Pod that has a balance greater than $0.00, the balance will be transferred to your Joint Checking Account. If there is no open Joint Checking Account then you will receive a check in the mail with the remaining account balance. If a Pods+ subscription payment is missed, then all Savings Pods will be closed and the balances of all Savings Pods will be combined into one (1) new default Savings Pod.
3. Features and Account Changes
(a) Random. You and your partner may have the option to randomize the Split Ratio of a given transaction if you both have sufficient balance to do so (“Randomize”). Randomize returns a randomized ratio between 0% and 100% that the user initiating the feature will pay (“Randomized Ratio”). Conversely, Partner’s Account will be obligated to pay the remaining percentage that is not covered by the Randomized Ratio. By using Randomize you and your partner agree that the Randomized Ratio is a final state, and cannot be modified. The Randomized Ratio is calculated using the following parameters: there’s a 90% chance that the Randomized Ratio falls between 0% and 15% or 85% and 100%. There is a 10% chance that the Randomized Ratio falls between 15% and 85%. Further, you agree that both parties have agreed to use the Randomize feature on a given transaction. Ivella will not be responsible for claims that either party is discontent with the outcome or did not agree to the use of Randomize.
(b) 1-Click Upgrade. If you’re a Split Account user and you’d like to upgrade to the Joint Account, you can do so on the settings page of your Ivella mobile app. Upgrading from the Split Account to a Joint Account requires approval from both partners. Once mutual approval has been made, Ivella will combine both existing account balances into a new jointly-owned Account, re-issue both partners new cards, migrate any existing recurring transfers and low balance alerts. Any existing card authorizations on the Split Account will be covered by a balance transfer from the newly created Joint Account back to the existing Split Account. Any further unprocessed and/or incoming ACH or card transactions to the Split Account will be rejected and returned.
(c) Downgrade. There is currently no automatic option to downgrade from a Joint Account to a Split Account. If you’d like to do so, please reach out support at firstname.lastname@example.org.
4. Payments and Authorizations
(a) Overview. Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. dollars and are non-refundable unless otherwise stated.
(b) Price. Ivella reserves the right to determine pricing for the Service. Ivella will make reasonable efforts to keep pricing information published on the website up to date. We encourage you to check our website periodically for current pricing information. Ivella may change the fees for any feature of the Service, including additional fees or charges, if Ivella gives you advance notice of changes before they apply. Ivella, at its sole discretion, may make promotional offers with different features and different pricing to any of Ivella’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
(c) Authorization. You authorize Ivella to charge all sums for the orders that you make using a Debit Card, any level of Service you select, and any transfers of funds to or from your Account needed to be made by Ivella, our Partner Bank, or our third-party payment processor based on the Split Ratio tied to your Split Account as described in these Terms or published by Ivella, including all applicable taxes, to your Account or otherwise to an alternative payment method specified by you in your Split Account. If you pay any fees with a credit card, Ivella may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
(d) Subscription Service. The Service may include automatically recurring payments for periodic charges (“Subscription Service”). If you activate a Subscription Service, you authorize Ivella to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your Account, all accrued sums on or before the payment due date for the accrued sums. The (“Subscription Billing Date”) is the date when you purchase your first subscription to the Service. For information on the (“Subscription Fee,”) please see our FAQ page. Your Account or an alternative payment method specified by you in your Account will be charged automatically on the Subscription Billing Date all applicable fees and taxes for the next subscription period. The subscription will continue unless and until you cancel your subscription or we terminate it. You must cancel your subscription before it renews in order to avoid billing of the next periodic Subscription Fee to your Account or the alternative payment method specified by you in your Account, as applicable. We will bill the periodic Subscription Fee to your Account or the alternative payment method you provide to us through your Account. You may cancel the Subscription Service in-app or by contacting us at email@example.com.
(e) Delinquent Accounts. Ivella may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid.
5. License to Service
Subject to your complete and ongoing compliance with these Terms, Ivella grants a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile application associated with the Service obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control (“Device”); and (b) access and use the Service, solely for your personal, non-commercial use. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (i) reproduce, distribute, publicly display, or publicly perform the Service; (ii) make modifications to the Service; or (iii) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
Ivella may periodically request that you provide feedback regarding the use, operation, and functionality of the Service (“Feedback”), including any information about known or suspected bugs, errors or compatibility problems, suggested modifications, and user-desired features. You grant Ivella a perpetual, irrevocable, non-exclusive, worldwide, royalty-free, fully paid-up, fully sublicensable, and transferable right to use and incorporate Feedback into any products and services, to make, use, sell, offer for sale, import, and otherwise exploit such products and services, and to otherwise use, copy, distribute, and exploit the Feedback without restriction.
As between you and Ivella, the Service is owned and operated by Ivella. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (including of your Account) (collectively, “Materials”) provided by Ivella are protected by intellectual property and other laws. All Materials included in the Service are the property of Ivella, our Partner Bank, or our third-party licensors. Except as expressly authorized by Ivella, you may not make use of the Materials. Ivella reserves all rights to the Materials not granted expressly in these Terms.
8. Third-Party Services and Software
Ivella may provide tools through the Service that enable you to export information to third-party services, including through features that allow you to link your Account with an account on the third-party service, such as your bank account, or through our implementation of third-party buttons. By using one of these tools, you agree that Ivella may transfer that information to the applicable third-party service. Third-party services are not under Ivella’s control, and, to the fullest extent permitted by law, Ivella is not responsible for any third-party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under Ivella’s control, and Ivella is not responsible for their content. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components. Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining those third-party components under the applicable third-party licenses or to limit your use of those third-party components under those third-party licenses.
(a) Overview. Your acceptance of our Electronic Disclosure and Consent is required to create your Account. By accepting these Terms, you expressly consent to be contacted by us at any telephone number, e-mail address, or mailing address you provide or at which you may be reached in accordance with these Terms. You agree that we, our agents, and our service providers may contact you in any way, including by e-mail, SMS messages (including text messages, subject to these Terms), calls using pre-recorded messages or artificial voice, and calls and messages delivered using automatic telephone dialing systems (auto-dialer) or an automatic texting system at any phone number you have provided to us. Automated messages may be played when the telephone is answered, whether by you or someone else. In the event that an agent or representative of ours calls you, he or she may also leave messages on your answering machine, voice mail, or send messages via text. You can revoke your consent at any time by contacting us at firstname.lastname@example.org. You certify, warrant, and represent that the telephone numbers that you have provided to us are your contact numbers. You represent that you are permitted to receive calls at each of the telephone numbers you have provided to us. You agree to promptly alert us whenever you stop using a particular telephone number. You are responsible for any and all charges imposed by your communications service provider. You agree that we and our agents, representatives, affiliates or anyone calling on our behalf may contact you on a recorded or monitored line and that any incoming calls may also be recorded and monitored.
(c) Push Notifications. You agree to receive alerts about your Account and Account activity, balances on your Account, payments, suspicious activities, and other matters involving your use of the Service through push notifications to your Device. Receipt of push notifications may be delayed or prevented by factors beyond our control, including those affecting your internet/phone provider. Ivella is not liable for losses or damages arising from non-delivery, delayed delivery, or the erroneous delivery of any push notification; inaccurate push notification content, or your use or reliance on the content of any push notification for any purposes. Each push notification may not be encrypted, and may include your name and information pertaining to your Account, your Account or use of the Service. Ivella may terminate your use of push notifications at any time without notice. You may choose to discontinue receiving push notifications by updating your preferences on your Device.
(d) Email. We may send you emails concerning the Service and our other products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
10. Prohibited Conduct
BY USING THE SERVICE, YOU AGREE NOT TO: (a) use the Service for any illegal purpose or in violation of any local, state, national, or international law; (b) you must not attempt to access or search the Service or Materials or download Materials from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools and the like) other than the software or search agents provided by Ivella or other generally available third-party web browsers; (c) interfere with security-related features of the Service, including by disabling or circumventing features that prevent or limit use or copying of any content or reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law; (d) interfere with the operation of the Service, including by uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code or interfering with or disrupting any network, equipment, or server connected to or used to provide the Service; (e) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth; (f) sell or otherwise transfer the access granted under these Terms or any Materials or any right or ability to view, access, or use any Materials; or (g) attempt to do any of the acts described in this Section 9 or assist or permit any person in engaging in any of the acts described in this Section 9.
11. Modification of Terms
We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will, unless otherwise stated, be effective 30 days after posting or notice to you of the revisions. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. If you do not agree to the modified terms, you should remove your Account and discontinue your use of the Service. Except as expressly permitted in this Section 10, these Terms may be amended only by a written agreement signed by you and Ivella.
12. Term and Termination
These Terms will be effective upon the earlier of your acceptance of these Terms or use of the Service and will continue until terminated (the “Term”). If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, Ivella may, at its sole discretion, terminate these Terms, your Account, or your Account, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your Account and these Terms at any time by contacting customer service at email@example.com. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your Account, or the Service; (c) you must pay Ivella any unpaid amount that was due prior to termination; (d) Ivella will, upon receiving written notice from you, return any funds in your Account to you; and (e) Sections 5–7, 11(a)–(e), and 12–16 will survive.
To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Ivella, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (collectively, the “Ivella Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
14. Disclaimers; No Warranties
(a) USING YOUR ACCOUNT. YOU REPRESENT AND WARRANT TO US THAT YOU WILL NOT USE ANY MONEY IN YOUR ACCOUNT IN VIOLATION OF ANY APPLICABLE LAWS, INCLUDING ANY ANTI-MONEY LAUNDERING LAWS. WE RESERVE THE RIGHT, WITHOUT PRIOR NOTIFICATION, TO LIMIT YOUR USE OF YOUR ACCOUNT AND TO LIMIT THE SIZE AND FREQUENCY OF YOUR TRANSACTIONS IN YOUR ACCOUNT. YOU ABSOLVE US OF ANY RESPONSIBILITY TO MAINTAIN OR UPDATE YOUR ACCOUNT. IVELLA IS NOT, TO THE GREATEST EXTENT PERMITTED BY LAW, LIABLE FOR ANY LOSS OF ANY KIND SUFFERED BY YOU IN CONNECTION WITH OR ARISING FROM THE ACQUISITION, LOSS, FORFEITURE, OR ANY USE WHATSOEVER OF THE ACCOUNT BY YOU.
(b) BANKING SERVICES. YOU ACKNOWLEDGE AND AGREE THAT: (I) IVELLA IS NOT A DEPOSITORY INSTITUTION, BANK, BRANCH OF A DEPOSITORY INSTITUTION NOR BANK ORGANIZED UNDER ANY DOMESTIC OR FOREIGN LAW; (II) IVELLA DOES NOT ACCEPT OR HOLD ANY DEPOSITS ON BEHALF OF YOU OR YOUR HIRED PARTIES AND, IN ITS PROVISION OF THE SERVICE, IS NOT PROVIDING ANY BANKING SERVICES TO YOU OR YOUR HIRED PARTIES; INSTEAD DEPOSITS ARE HELD IN AN OMNIBUS BANK ACCOUNT AT IVELLA’ PARTNER BANK ; (III) USE OF THE SERVICE WILL BE SUBJECT TO APPLICABLE LAWS AND THE RULES OF ANY PAYMENT NETWORKS THROUGH WHICH TRANSACTIONS IN CONNECTION WITH THE SERVICE MAY BE AUTHORIZED AND SETTLED (“CARD BRAND RULES”); AND (D) BY PROVIDING THE SERVICE, IVELLA IS NOT WARRANTING TO OR OTHERWISE GUARANTEEING YOUR COMPLIANCE WITH ANY APPLICABLE LAWS OR CARD BRAND RULES. YOU REPRESENT, WARRANT AND COVENANT TO IVELLA THAT AT ALL TIMES, IN USING THE SERVICE: (A) YOU WILL COMPLY WITH ALL APPLICABLE LAWS (INCLUDING THOSE AIMED AT COMBATING MONEY LAUNDERING AND TERRORIST FINANCING) AND ALL CARD BRAND RULES; AND (B) YOU WILL, UPON IVELLA’S REQUEST, REASONABLY COOPERATE WITH IVELLA AND PROMPTLY PROVIDE IVELLA WITH ANY MATERIALS REASONABLY REQUIRED BY IVELLA TO ENABLE IVELLA TO PROVIDE THE SERVICE AND OTHERWISE FULFILL ITS OBLIGATIONS AND RESPONSIBILITIES UNDER THESE TERMS AND TO ENABLE IVELLA AND ITS THIRD-PARTY SERVICE PROVIDERS AND PARTNERS TO COMPLY WITH APPLICABLE LAWS AND CARD BRAND RULES. WE DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR POSSESSION, PERMITTED TRANSFER, AND USE OF MONEY THROUGH OR IN CONNECTION WITH THE SERVICE WILL SATISFY OR ENSURE COMPLIANCE WITH APPLICABLE LAWS.
(c) GENERAL DISCLAIMER; NO WARRANTIES. YOUR POSSESSION, PERMITTED TRANSFER, AND USE OF ALL OR ANY PORTION OF THE SERVICE (INCLUDING YOUR ACCOUNT) IS ENTIRELY AT YOUR OWN RISK. THE SERVICE AND YOUR ACCOUNT ARE PROVIDED ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IVELLA AND ALL IVELLA ENTITIES DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING: (I) WARRANTIES OF MERCHANTABILITY, QUALITY, ACCURACY, TITLE, NON-INTERFERENCE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE AND YOUR ACCOUNT; AND (II) WARRANTIES THAT THE SERVICE, YOUR ACCOUNT, AND ANY DATA PROCESSED THROUGH OR USING THE SERVICE IS SECURE, ACCURATE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION. IF ANY OF THESE EXCLUSIONS DO NOT APPLY TO YOU OR ARE VOID WITH RESPECT TO YOU UNDER ANY APPLICABLE LAW, THEN ANY WARRANTY THAT CANNOT BE EXCLUDED IS LIMITED TO THE SHORTER OF: (A) 90 DAYS FROM THE DATE OF FIRST DELIVERY OF THE SERVICE; AND (B) THE SHORTEST PERIOD PERMITTED UNDER APPLICABLE LAW.
15. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) IVELLA’ AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR UNDER THESE TERMS WILL NOT EXCEED THE GREATER OF $100 AND TOTAL FEES PAID TO IVELLA BY YOU IN THE LAST 12 MONTHS; AND (B) IVELLA WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES, EVEN IF ANY IVELLA PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES, OR FOR ANY DAMAGES RELATING TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, DATA CORRUPTION, SECURITY, LOSS OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF PROFITS OR INVESTMENT. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THESE TERMS.
16. Dispute Resolution
(a) Generally. In the interest of resolving disputes between you and Ivella in the most expedient and cost-effective manner, and except as described in Section 15(b) and 15(d), you and Ivella agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND IVELLA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
(b) Exceptions. Despite the provisions of Section 15(a), nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law in aid of arbitration; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
(c) Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 15 within 30 days after the date that you agree to these Terms by sending a letter to Ivella, Inc., Attention: Legal Department – Arbitration Opt-Out, 1334 3rd Street Promenade, Unit 306, Santa Monica, CA 90401 that specifies: your full legal name, the email address associated with your Account, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Ivella receives your Opt-Out Notice, this Section 15 will be void and any action arising out of these Terms will be resolved as set forth in Section 16(b). The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
(d) Arbitrator. Any arbitration between you and Ivella will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting Ivella. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
(e) Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Ivella’s address for Notice is: Ivella, Inc., 1334 3rd Street Promenade, Unit 306, Santa Monica, CA 90401. The Notice of Arbitration must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Ivella may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Ivella must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Ivella in settlement of the dispute prior to the award, Ivella will pay to you the higher of: (A) the amount awarded by the arbitrator; and (B) US$10,000.
(f) Fees. If you commence arbitration in accordance with these Terms, Ivella will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Los Angeles County, California, but if the claim is for US$10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. 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 that case, you agree to reimburse Ivella 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 must 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.
(g) No Class Actions. YOU AND IVELLA 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 PROCEEDING. Further, unless both you and Ivella agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
(h) Modifications to this Arbitration Provision. If Ivella makes any future change to this arbitration provision, other than a change to Ivella’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Ivella’s address for Notice of Arbitration, in which case your account with Ivella will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
(i) Enforceability. If Section 15(g) is found to be unenforceable, or entirety of this Section 15 is found to be unenforceable, or Ivella receives an Opt-Out Notice from you, then the entirety of this Section 15 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 16(b) will govern any action arising out of or related to these Terms.
(b) Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Ivella submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Los Angeles County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
(d) Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you 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 S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
(e) No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
(f) International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
(g) Notice Regarding Apple. This Section 16(h) only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Ivella only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation 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: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (iii) 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 Service infringe a 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 these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (A) 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 (B) you are not listed on any U.S. Government list of prohibited or restricted parties.