Terms of Service
June 16th, 2022
These Terms of Service (these “Terms”) apply to the cushion.ai website, application (webapp.cushion.ai), and our related social media sites, including our Facebook Messenger bot (collectively, the “Site”) operated by Cushion AI, Inc. (“Us”, “We” or “Our”) and the services available through the Site (the “Service”).
1. Agreement to Terms.
Because our platform operates on the Internet, you consent to transact business with us electronically. You agree that we may provide notices to you by electronic means, for example, by posting it on our website, sending you an in-App message, emailing it to any email address that you have provided us, or sending it as a text message to any mobile phone number that you have provided us. We may also send notices to you by postal mail to any postal address that you have provided us. All notices by any of these methods will be deemed received by you no later than the earlier of when received or posted or 24 hours after sent, except for notice by postal mail, which will be deemed received by you no later than the earlier of when received or 3 Business Days after it is mailed.
You consent to be contacted by us, our agents, representatives, affiliates, or anyone calling on our behalf for any purposes, at any telephone number, or physical or electronic address you provide or at which you may be reached. You agree we may contact you in any way, including short message service (“SMS”) messages (including text messages), multimedia messaging service (“MMS”), calls using prerecorded messages or artificial voice, and calls and messages delivered using auto telephone dialing systems or automatic texting systems. Automated messages may be played when the telephone is answered, whether by you or someone else. In the event that an agent or representative calls, he or she may also leave a message on your answering machine, voice mail, or send one by text.
You consent to receive SMS messages, calls, and messages (including prerecorded and artificial voice and autodialed) from us, our agents, representatives, affiliates, or anyone calling on our behalf at the specific numbers you have provided to us, or numbers we can reasonably associate with your account (through skip trace, caller ID capture, or other means), with information or questions relating to you, your account, or our Services. You acknowledge and agree that standard call, message, and data rates apply. Consent to receive SMS messages is not required as a condition of purchase.
To unsubscribe from text messages at any time, reply STOP to any text message you receive from us. If you unsubscribe, you will be unable to access your account. You consent that following such a request to unsubscribe, you may receive one final text message from us confirming your request and/or providing an alternative to access your account.
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS, YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND CUSHION AI, INC. THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 18.6 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION).
3. CHANGES TO TERMS OF SERVICES.
We may update the Terms at any time, at our sole discretion. If we do so, we will let you know either by posting the updated Terms on the Site or through other communications. It’s important that you review the Terms whenever we update them or you use the Service. If you continue to use the Service after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you do not agree to be bound by the updated Terms, then, except as otherwise provided in Section 18.6 “Effect of Changes on Arbitration,” you may not use the Service anymore. Because the Service is evolving over time, We may change or discontinue all or any part of the Service, at any time and without notice, at our sole discretion.
The Service is available to users who are at least 18 years of age. By accessing and using the Service, you represent and warrant that (a) any and all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Service will comply with and does not violate any applicable law, regulation, order or guideline.
In order for you to use the Service, you must create an account by registering on the Site (“Account”). It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.
In addition, you will need to link your Account with your accounts at third party financial institutions (e.g., banks and credit card companies) (“Financial Institution Accounts”) so we can access the transaction history of your Financial Institution Accounts (“Transaction History”), and as necessary to identify money saving opportunities as described below. You must provide Us access to your Financial Institution Accounts.
CUSHION.AI IS NOT AFFILIATED WITH THE THIRD PARTY FINANCIAL INSTITUTIONS WITH WHICH WE MAY COMMUNICATE. WE DO NOT GUARANTEE THAT OUR SERVICES WILL INTEGRATE WITH EVERY FINANCIAL INSTITUTION. WE WILL ATTEMPT TO NOTIFY YOU AS SOON AS POSSIBLE IF WE ARE UNABLE TO INTEGRATE WITH A FINANCIAL INSTITUTION ACCOUNT.
6.1 Fee Genius. By enrolling in this feature, you are agreeing to share transactions involving your Financial Institution Accounts with Us using the Services. We will use this access to identify bank fees, identify credit card fees and interest charges, surface information about your transactions and other fees within your dashboard, generate fee insights, alert you of recent fees, predict upcoming fees, and identify money-saving opportunities for you (each an “Opportunity”). Our ability to provide the Fee Genius feature is in part contingent on your Financial Institution. Any changes to the Financial Institution services or terms may limit or otherwise affect your ability to identify Opportunities.
No negotiations are included with Fee Genius. You must opt-into Fee Negotiation if you are interested in bank fee, credit card fee, or credit card interest charge negotiations.
6.2 Fee Negotiation. As an addition to the Fee Genius feature, you can purchase the ability to identify a refund Opportunity. Once identified, you authorize the Service to attempt to: (a) obtain a refund, (b) obtain a fee waiver, (c) or negotiate a better deal. Fee Negotiation only negotiates bank fees, credit card fees, and credit card interest charges that have already been applied to your accounts.
You must purchase the Fee Genius feature in order to use the Fee Negotiation add-on feature. NOT ALL FEES ARE ELIGIBLE FOR NEGOTIATION. We do not negotiate:
- credit card interest rates (e.g., APRs) ;
- interest rates on any loan products; or
- other fees associated with certain loan products.
We may adjust this list at any time by communicating any such changes either in these Terms, the Site, or by otherwise notifying through any reasonable form of communication. Please contact us if you have any questions about whether a particular fee is eligible for negotiation.
6.3 Authorization. If you decide to use Fee Negotiation, you agree to contest fees, request discounts, and perform other actions with the Institutions you have specified by using the Service. To the extent necessary, you hereby appoint Us as your attorney-in-fact with full authority to act on your behalf in connection with communications with your Institutions in order to provide the Service.
6.4 Notification and Non-Interference. Once we start the Opportunity, we will contact you via an in-app notification, text message, or email. You should not contact the financial institution affiliated with the Financial Institution Account to attempt to negotiate, reduce, or otherwise challenge the fee once you receive notice from Us that we’ve begun an Opportunity. If you contact the financial institution affiliated with your Financial Institution Account, you may still be charged the Service Fee (described below).
6.5 NO GUARANTEE. WE MAKE NO REPRESENTATIONS, GUARANTEES, OR PROMISES THAT THE SERVICE WILL RESULT IN A REDUCTION IN A FEE, REFUND, OR ANY OTHER BENEFIT. SOME FEES ARE NON-NEGOTIABLE AND SOME FINANCIAL INSTITUTIONS ARE UNWILLING TO NEGOTIATE FEES. WE DO NOT SUPPORT ALL FINANCIAL INSTITUTIONS.
6.6 Rewards Program. We will reward you with points for taking a variety of actions, including but not limited to: paying for the Service, inviting friends to sign up and pay for the Service, and many more (“Rewards Program”). Once you accumulate enough points and reach a predetermined points threshold, you can redeem your points to receive a promotional reward by converting the rewards to a prize, under the following conditions:
- We will identify the eligible prizes. Such prizes may include an Amazon Gift card, other gift cards, or a cash reward. We have sole discretion to determine the eligible prize and may change the eligible prizes without notice.
- You may not redeem your points until you have reached or exceeded the required point threshold. We will notify you on the Site the amount of points necessary to reach a prize. We reserve the right to change the amount of points necessary to redeem at any time with or without advance notice.
- We reserve the right to discontinue, reduce or modify the Rewards Program at any time, WITH LIMITED OR NO ADVANCED NOTICE. Any significant changes to the rewards program that affect everyone will be reflected in these terms and conditions.
- If We are involved in a merger, acquisition, financing due diligence, reorganization, bankruptcy, receivership, purchase or sale of assets, or transition of service to another provider, then your rewards points will be deleted automatically, and we will not owe you any compensation whatsoever for the value of the points that you carried before this event.
- If we suspect that you are abusing Our Rewards Program or the Service in any way, we reserve the right to terminate your account and you may lose any accumulated Rewards Program points balance.
- Running paid advertisements of any kind that direct consumers to the Company’s website (https://cushion.ai), any subdomain of the Company’s website, or any website or landing page that impersonates the Company in any way is prohibited and will be treated as abuse of Our Rewards Program and a violation of these Terms.
- Running paid advertisements that include your Cushion referral code (issued by the Company when you create your account) or the referral code of any other Cushion user or customer is prohibited and will be treated as abuse of Our Rewards Program and a violation of Our terms. You are prohibited from including a referral code of any kind in the source URL or destination URL of any paid advertisement. You are also prohibited from displaying or mentioning a Cushion referral code of any kind in the copy, creative, text, video, or audio of any paid advertisement.
7. service fees.
7.1 General Rules. We require payment of a fee for use of the Services (or certain portions thereof) and you agree to pay such fees. To use Fee Genius, you will need to purchase a subscription (“Subscription”) for such use. You may also purchase add-on features such as Fee Negotiation, which will be billed as an additional charge on your Subscription Fee.
You expressly authorize us (or our third-party payment processor) to charge you for such the Subscription. We may ask you to supply additional information relevant to your Subscription, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). By initiating a Transaction, you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted or otherwise communicated to you. All payments for Transactions are non-refundable and non-transferable except as expressly provided in these Terms. All fees and applicable taxes, if any, are payable in United States dollars.
7.2 Subscriptions. For Subscriptions, you will be charged a monthly or yearly Subscription fee, plus any applicable taxes, and other charges (“Subscription Fee”), at the beginning of your Subscription and each renewal date thereafter, at the then-current Subscription Fee. BY PURCHASING A SUBSCRIPTION, YOU AUTHORIZE US TO INITIATE RECURRING NON-REFUNDABLE PAYMENTS AS SET FORTH BELOW. If you purchase a Subscription, we (or our third-party payment processor) will automatically charge you on the renewal date of your Subscription, using the Payment Information you have provided until you cancel your Subscription. We will periodically send you a reminder with the then-current Subscription Fee. By agreeing to these Terms and electing to purchase a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or Us. Your Subscription continues until cancelled by you or we terminate your access to or use of the Services or Subscription in accordance with these Terms.
7.3 Cancelling One-Time Payment or Subscription. YOUR PURCHASE IS FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND OF YOUR ONE-TIME PAYMENT OR SUBSCRIPTION FEE AT ANY TIME. If we cancel your attempted purchase, we’ll refund any payment you have already remitted to us for such Transaction. Without limiting the foregoing, you may cancel your Subscription at any time, but please note that such cancellation will be effective at the end of the then-current Subscription period. EXCEPT AS SET FORTH ABOVE WITH RESPECT TO YOUR INITIAL SUBSCRIPTION PURCHASE, YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. To cancel, you can do so in-app or send an email to [email protected] You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If you cancel, your right to use the Services will continue until the end of your then current Subscription period and will then terminate without further charges.
7.4 Fee Genius (Subscription) In order to use the Service, you will be required to select and pay for a subscription to Fee Genius – which offers fee detection, alerts, and analytics powered by Artificial Intelligence.
Fee Genius does not include any form of fee negotiation.
7.5 Fee Negotiation (Commission) As an add-on to Fee Genius, you can opt-into Fee Negotiation – a bank and credit card fee negotiation service:
- Fee Negotiation cannot be activated on its own. It can only be activated as an add-on to a paid Fee Genius subscription
- Fee Negotiation costs $0 upfront
- When the Company successfully negotiates any of your fees, you accept to pay some percentage of the fee-waiver or refund amount (a Commission) to the Company. The exact Commission percentage may vary
- If you interfere with a negotiation that was initiated by the Company and the negotiation results in a fee-waiver or refund, you understand and accept that the Company will take credit for the negotiation’s success and you are required to pay the Company the appropriate Commission percentage
- The Company is not required to negotiate any of your fees
- The Company does not negotiate fees with low refunds odds
- The Company makes no guarantees of any kind. While the Company negotiates on your behalf, it is your bank or credit card company that makes the final decision about refunding or waiving any of your fees
7.6 Annual Fee Negotiation Customers If you have already paid for any of the Company’s annual negotiation packages (Basic, People’s Choice, or The Works), the Company will continue to honor the terms of your subscription until its next renewal date. As stated when you signed up initially, all packages and payments to the Company are non-refundable.
You have until your next renewal date to switch over to Fee Genius or Fee Genius plus Fee Negotiation, or to cancel your account.
If you do not make the switch to Fee Genius before your next renewal date, then your account will be canceled at that time, and then deleted permanently.
8. ACH Authorization
You acknowledge that the “Transfer Funds” feature allows you to electronically transfer funds via the Automated Clearing House (“ACH”) between my eligible Cushion. (“Cushion”) account(s) and my external account(s) at other financial institutions (“External Account(s)”, once you have successfully registered your External Account(s). This includes:
- One-time on-demand transfers, which allow me to initiate multiple, non-recurring, individual transfers based on the transfer date and dollar amount that you request through the Transfer Funds feature of Online and Mobile Banking from time to time;
- Recurring transfers, which allows you to initiate recurring transfers of a set dollar amount at regular intervals that you have established through the Transfer Funds feature of Online and Mobile Banking; and/or
- Other ACH transfer features that Cushion may make available.
Subject to the terms of the Transfer Funds feature and the terms of your other agreements with Cushion, you hereby authorize Cushion to initiate electronic credit/debit entries to your eligible Cushion account(s) and each registered External Account for (a) various amounts at varying times by making on-demand transfers pursuant to your instructions, and/or (b) fixed amount at the frequency you have selected by making recurring transfers pursuant to your instructions (a “Preauthorized Transfer”). If any transfer date falls on a weekend or bank holiday, you understand and agree that the transfer may be executed on the next business day, or as soon as reasonably possible at the discretion of Cushion.
You hereby represent and warrant that you have all necessary right, power and authority to debit and credit my Cushion account and any External Account(s) registered, and that all information or instructions that you provide to Cushion in relation to any ACH transfer are complete and accurate. You agree that ACH transactions you authorize comply with all applicable law.
Should an incorrect amount be withdrawn from or deposited to my External Account(s) or my Cushion account(s), you authorize Cushion to correct the error by debiting/crediting your External Account(s) or your Cushion account(s).
This authorization is to remain in full force and effect until Cushion has received written notification from you of its termination in such time and in such manner as to afford Cushion a reasonable opportunity to act on it. For Preauthorized Transfers, you understand that it is your responsibility to contact Cushion to stop or cancel a Preauthorized Transfer at least three (3) days prior to the following scheduled payment. In either case, you will send your notice to: [email protected]
You acknowledge that the origination of ACH transactions must comply with the provisions of applicable law and the rules of the National Automated Clearing House Association (NACHA). You request the financial institution that holds my External Account(s) to honor all transfers initiated in accordance with this authorization form.
You agree to print this ACH Authorization and retain a hard copy or save it as an electronic copy.
9. Proprietary Rights.
9.2 Ownership. The contents, including information, text, images and graphics and all other material contained on the Site or features and functions made available through the Service (the “Content”) are for your personal informational purposes only. The Content is owned by Cushion AI, Inc. or by Our designers or other third parties who have licensed their rights in Content to Us. You may use the Content solely for your personal, non-commercial use. You must not delete or alter any copyright or other notice We place on any Content. Content is owned by Us or Our licensors or other users and is protected by copyright, trademark and other laws and regulations of the United States and foreign laws. You shall not, nor will you allow any third party (whether or not for your benefit) to reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate to any third party (including, without limitation, on or via a third party website), or otherwise use, any Content without Our express prior written consent. You may not use Content in any way not expressly permitted by these Terms of Service and if you do, your right to use the Service will automatically terminate. The Content, the Service and the Site generally, are subject to change or termination without notice. The trademarks, names, slogans, logos, characters and service marks (collectively “Trademarks”) displayed on Our Site belong to Us or have been licensed to Us. Nothing contained on Our Site should be construed as granting any license or right to use any Trademark displayed on Our Site. Your use/misuse of the Trademarks displayed on Our Site, except as provided in these Terms of Service, is strictly prohibited.
10. RIGHTS AND TERMS FOR APPS.
Accessing App from App Store. The following terms apply to any App accessed through or downloaded from any app store or distribution platform (like the Apple App Store or Google Play) where the App may now or in the future be made available (each an “App Provider”).
You acknowledge and agree that:
These Terms are concluded between you and Us, and not with the App Provider, and We (not the App Provider), are solely responsible for the App.
The App Provider has no obligation to furnish any maintenance and support services with respect to the App.
In the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the App to you (if applicable) and, to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Our sole responsibility.
The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
In the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, We will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
The App Provider, and its subsidiaries, are third-party beneficiaries of these Terms as related to your license to the App, and that, upon your acceptance of the Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third-party beneficiary thereof.
You represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
You must also comply with all applicable third party terms of service when using the App.
General Prohibitions and Our Enforcement Rights. You agree not to do any of the following:
Although we’re not obligated to monitor access to or use of the Service or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Service, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Service. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
11. LINKS TO THIRD PARTY WEBSITES OR RESOURCES.
The Service (including the App) may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
13. No Warranty.
You acknowledge and agree that your use of the Service is at your own risk and is provided “as is,” without warranty of any kind, and we hereby disclaim all representations, conditions, guarantees or warranties, oral or written or of any kind, whether express or implied, and whether by statute, common law, from a course of performance or dealing, trade usage, including but not limited to the implied warranties or conditions of merchantability, satisfactory quality, non-infringement, or fitness for a particular purpose. Without limiting the foregoing, we do not warrant that the Service will be uninterrupted, free of errors or defects, or that errors or defects are capable of being corrected. We do not warrant that all Institutions will accept the Service. We disclaim any liability if the use of the Service violates any terms of service or other agreement that you may have with an Institution.
14. LIMITATION OF LIABILITY.
14.1 NEITHER Cushion AI, Inc. NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT Cushion AI, Inc. OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
14.2 In addition, we have no liability for any claims between you or any of the Institutions with which we communicate, including any impact on your account or financial relationship with such Institutions.
14.3 IN NO EVENT WILL Our TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED ONE HUNDRED DOLLARS $100.
14.4 THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Cushion AI, Inc. AND YOU.
Any suggestions, ideas, enhancement requests, feedback, recommendations or other information you provide to Us relating to the Service, including the Site, are owned exclusively by Us. You hereby assign such rights to Us and agree to sign any documents necessary to ensure Our ownership is perfected.
16. term and termination.
We may terminate the Terms and terminate or suspend your Account immediately, without prior notice or liability, and for any or no reason. You may terminate the Terms and your Account at any time through the user interface on the Site. Upon the termination of the Terms, your right to access the Service immediately ceases. However, Sections 1, 6.3, 6.5, 10, 12, 13, 14, 16, 17 and 20 of these Terms will survive such termination.
17. governing law and forum choice.
These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 18 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and Cushion AI, Inc. are not required to arbitrate will be the state and federal courts located in the Northern District of California, and you and Cushion AI, Inc. each waive any objection to jurisdiction and venue in such courts.
18. dispute resolution.
18.1 Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Service or Content (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Cushion AI, Inc. agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Cushion AI, Inc. are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
18.2 Exceptions and Opt-out. As limited exceptions to Section 15(a) above: (i) you may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights. In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by email at [email protected] or by regular mail at 2875 Greenwich St. #306, San Francisco, CA 94123 within thirty (30) days following the date you first agree to these Terms.
18.3 Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
If your claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement
18.4 Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. We’ll pay for all filing, administration and arbitrator fees and expenses if your Dispute is for less than $10,000, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
18.5 Class Action Waiver. YOU AND CUSHION AI, INC. 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, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
18.6 Effect of Changes on Arbitration. Notwithstanding the provisions of Section 3 “Changes to Terms or Service” above, if Cushion AI, Inc. changes any of the terms of this Section 18 “Dispute Resolution” after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to [email protected]) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Cushion AI, Inc. email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Cushion AI, Inc. in accordance with the terms of this Section 18 “Dispute Resolution” as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
18.7 Severability. With the exception of any of the provisions in Section 5 of these Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
19. LINKS TO THIRD PARTY WEBSITES OR RESOURCES.
19.1 Entire Terms. These Terms constitute the entire and exclusive understanding and agreement between Cushion AI, Inc. and you regarding the Service and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Cushion AI, Inc. and you regarding the Service and Content. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Cushion AI, Inc.’ prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Cushion AI, Inc. may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
19.2 Notices. Any notices or other communications provided by Cushion AI, Inc. under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Service. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
19.3 Assignment. The Terms is personal to you, and you may not assign or transfer your rights or obligations under the Terms. We may assign our rights and obligations under the Terms to a third party in connection with a merger or sale of all or substantially all Our assets related to the Service.
19.4 Waiver of Rights. Cushion AI, Inc. failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Cushion AI, Inc. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
20. CREDIT REPORTING.
For users starting after June 14, 2022: by enrolling in Cushion AI, Inc. services, you authorize Cushion AI, Inc. to furnish your payment history with us to one or more of the national credit bureaus (TransUnion, Equifax, and Experian).
21. Contact Us.
Information. If you have any questions about these Terms or the Service, please contact Cushion AI, Inc. at [email protected], ATTN: Terms of Service Questions.