Consider, Inc. Terms of Service

Last Modified: May 16, 2018

Welcome to Consider.com, a website and online service provided by Consider, Inc. (“Consider,” “we,” “our” or “us”). This page explains the terms by which you may access and use our online and/or mobile services and software provided on or in connection with Consider.com (collectively, the “Service”). By accessing or using the Service, or by clicking a button or checking a box marked “I Agree” (or something similar), you signify that you have read and understood, and agree to be bound by these Terms of Service (this “Agreement”) and to the collection and use of your information as set forth in our Privacy Policy, whether or not you are a registered user of the Service. Consider reserves the right to modify these terms and will provide notice of these changes as described below. This Agreement applies to all visitors, users, and others who access the Service (“Users”).

PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

1. Service

1.1 Eligibility

This is a contract between you and Consider. You must read and agree to these terms before using the Service. If you do not agree to the terms and conditions of this Agreement, you do not have our permission to use the Service. You may use the Service only if you can form a binding contract with Consider, and only in compliance with this Agreement and any and all applicable local, state, national, and international laws, rules and regulations. Any use or access of the Service by anyone under eighteen (18) years of age is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service by Consider.

1.2 Limited License

Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service as permitted by the features of the Service. Consider reserves all rights not expressly granted herein in the Service and the Consider Content (as defined below). Consider may terminate this license at any time for any reason or no reason.

1.3 Accounts

Your account on the Service (your “User Account”) gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of User Accounts for different types of Users. If you open a User Account on behalf of a company, organization, or other entity, then: (i) “you” includes you and that entity; and (ii) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf.

You may never use another User’s User Account without permission. Your User Account is tied to a unique Uniform Resource Locator (“URL”) that is provided to your company email provided to us by your employer (“User URL”). You are solely responsible for the activity that occurs on your User Account, so you must keep your unique User URL protected. We encourage you to take “strong” security precautions with your User Account and User URL, including (without limitation) restricting access to your company email and to your User URL. You must notify Consider immediately of any breach of security or unauthorized use of your User Account. Consider will not be liable for any losses caused by any unauthorized use of your User Account.

You may control your User profile and how you interact with the Service by changing the settings in your settings page. By providing Consider your and your employees’ email addresses you consent to our using the email address to send you and your employees Service-related notices, including any notices required by law, in lieu of communication by postal mail. With your consent, we may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences at any time in your settings page. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.

1.4 Service Rules

When using the Service, you agree not to: (a) upload or transmit pornographic, threatening, embarrassing, hateful, racially or ethnically insulting, libelous, or otherwise inappropriate content; (b) except where expressly permitted, use the Service to engage in spamming, "chain letters", "pyramid schemes", advertisement of illegal or controlled products or services, or other advertising or marketing activities that violate this Agreement, the Privacy Policy or any applicable laws, regulations or generally-accepted advertising or marketing industry guidelines; (c) use the Service in any manner that infringes, violates or misappropriates any third party’s intellectual property or proprietary rights; (d) use the Service in any manner that is misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities, including engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for fraudulent or misleading purposes; (e) use the Service in any manner is libelous or defamatory, or that is otherwise threatening, abusive, violent, harassing, malicious or harmful to any person or entity, or is invasive of another's privacy; (f) use the Service in any manner that is harmful to minors in any way; (g) use the Service in any manner that is hateful or discriminatory based on race, color, gender, gender identity, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or is otherwise objectionable, as reasonably determined by Consider; (h) use the Service in any manner that in our sole discretion could damage, disable, overburden, or impair it; (i) use the Service in any manner that constitutes or contains any form of advertising or solicitation to users who have requested not to be contacted about other services, products or commercial interests; (j) attempt to gain unauthorized access to the Service, or any part of them, other User Accounts, computer systems or networks connected to the Service, or any part of them, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (k) modify the Service in any manner or form, or use modified versions of the Service, including but not limited to for the purpose of obtaining unauthorized access to the Service; (l) use any robot, spider, scraper, or other automated means to access the Service for any purpose without our express written permission, or bypass any measures we may use to prevent or restrict access to the Service; (m) impersonate another person or access another User’s User Account without that User’s permission or to violate any contractual or fiduciary relationships; (n) share Consider-issued passwords with any third party or encourage any other User to do so; (o) misrepresent the source, identity, or content of Employee Data; (p) modify, adapt, translate or create derivative works based upon the Service; (q) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Service, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (r) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Service to any third party; provide time sharing or similar services for any third party; or use the Service for any purpose other than your own internal business use; (s) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Service, features that prevent or restrict use or copying of any content accessible through the Service, or features that enforce limitations on use of the Service; (t) access the Service if you are a direct competitor of Consider, except with Consider’s prior written consent, or for any other competitive purposes; or (u) collect or harvest any personally identifiable information, including account names, from the Service.

1.5 Changes to the Service

We may, without prior notice: (i) change the Service; (ii) stop providing the Service or features of the Service, to you or to Users generally; or (iii) create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.

2. User Content

Some areas of the Service allow Users to submit, provide, or otherwise make available content such as marketing materials, videos, images, text, comments, questions, and other content or information (any such materials a User submits, provides, or otherwise makes available on the Service is referred to as “User Content”).

WE CLAIM NO OWNERSHIP RIGHTS OVER USER CONTENT CREATED BY YOU. THE USER CONTENT YOU CREATE REMAINS YOURS.

By submitting, providing, or otherwise making available any User Content on or through the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Consider a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.

For the purposes of this Agreement, “Intellectual Property Rights” means any and all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.

In connection with your User Content, you affirm, represent and warrant the following:

• You have the written consent of each and every identifiable natural person in the User Content, if any, to use such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use.
• You have obtained and are solely responsible for obtaining all consents as may be required by law to post any User Content relating to third parties.
• Your User Content and Consider’s use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
• Consider may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
• To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.

Consider takes no responsibility and assumes no liability for any User Content that you or any other User submits, provides or otherwise makes available over the Service. You shall be solely responsible for your User Content and the consequences of submitting it, providing it, or otherwise making it available on the Service, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content.

3. Employee Data

3.1 Employee Data.

As part of the Service, we may allow you to submit, store and access and we may collect certain Personal Data (as defined below), business data and other information related to your current and potential employees and contacts, including (without limitation) employees’ business email and your and your employees’ contacts personal and professional information made available on third-party services (collectively, “Employee Data”).

3.2 Use of Employee Data.

By submitting Employee Data to Consider, you hereby grant, and represent and warrant that you have all rights necessary to grant, all rights and licenses to the Employee Data required for Consider and its subcontractors and service providers to provide the Service. Consider shall have no right to sublicense or resell Employee Data, except however, that you agree that Consider may collect, analyze, and use data derived from Employee Data (including without limitation Personal Data) and/or information collected from or about an individual but which does not identify the individual personally for purposes of operating, analyzing, improving, or marketing the Service and any related services. If Consider shares or publicly discloses information (e.g., in marketing materials, or in application development) that is derived from Employee Data, such data will be aggregated or anonymized such that a specific individual is no longer identifiable. You further agree that Consider will have the right, both during and after the term of this Agreement, to use, store, transmit, distribute, modify, copy, display, sublicense, and create derivative works of the anonymized, aggregated data.

3.3 Your Responsibilities for Employee Data.

In connection with Employee Data, you hereby represent, warrant, and agree that: (a) you have obtained the Employee Data lawfully, and the Employee Data does not and will not violate any applicable laws or any person or entity’s proprietary or intellectual property rights; (b) the Employee Data is free of all viruses, Trojan horses, and other elements that could interrupt or harm the systems or software used by Consider or its subcontractors to provide the Service; (c) all Employee Data has and will be collected by you in accordance with a privacy policy that permits Consider to share, collect, use, and disclose such Employee Data as contemplated under this Agreement, and if required by applicable law, pursuant to consents obtained by you to do each of the foregoing; (d) you are solely responsible for ensuring compliance with all privacy laws in all jurisdictions that may apply to Employee Data provided hereunder; (e) Consider may exercise the rights in Employee Data granted hereunder without liability or cost to any third party; and (f) the Employee Data complies with the terms of this Agreement. For purposes of clarity, Consider takes no responsibility and assumes no liability for any Employee Data, and you will be solely responsible for its Employee Data and the consequences of sharing it hereunder. You may not submit any Employee Data that includes any information that can be used to identify, locate, or contact any of your employees, customers, users or potential customers or users, including: (1) social security number, passport number, driver’s license number, or similar identifier; (2) credit or debit card number; (3) employment, financial or health information; or (4) any other information relating to an individual, including cookie information and usage and traffic data or profiles, that is combined with any of the foregoing (collectively, "Personal Data") without Consider’s prior written approval.

3.4 Security Incidents.

In the event that Employee Data is disclosed to or accessed by an unauthorized party, Consider will promptly notify you and use reasonable efforts to cooperate with your investigation of the incident. In the event we have a reasonable, good faith belief that an unauthorized party has accessed Employee Data, we will promptly notify you and will use reasonable efforts to cooperate with your investigation of the incident. If such incident triggers any third-party notice requirements, you (not Consider) shall be solely responsible for the timing, content, cost and method of any such notice and compliance with applicable laws. You (not Consider) bears sole responsibility for adequate security, protection and backup of Employee Data when in your or your representatives’ or agents’ possession or control. We are not responsible, and you are fully responsible, for what your authorized Users do with Employee Data.

3.5 No Responsibility for Backups.

Consider will not be responsible for any backup, recovery or other steps required to ensure that Employee Data is recoverable in the case of data loss. You are solely responsible for backing up your Employee Data on a regular basis, and taking appropriate steps to safeguard and ensure the integrity of your Employee Data.

3.6 Rights to Employee Data.

You own all right, title and interest (including all Intellectual Property Rights) in and to Employee Data.

4. Our Proprietary Rights

Except for your User Content, the Service and all materials therein or transferred thereby, including (without limitation) software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “Consider Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Consider and its licensors (including other Users who post User Content to the Service). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Consider Content. Use of the Consider Content for any purpose not expressly permitted by this Agreement is strictly prohibited.

You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Consider under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Consider does not waive any rights to use similar or related ideas previously known to Consider, or developed by its employees, or obtained from sources other than you.

5. Paid Services

The Service and/or certain aspects of the Service may be provided for a fee or other charge (“Fees”). We will charge you fees (“Fees”) for your use of the Service. You agree to pay any and all Fees specified in an ordering document for your access and use of the Service (“Ordering Document”) in accordance with the billing terms contained in the applicable Ordering Document Consider may add new services for additional fees and charges, add or amend Fees and charges for existing services, at any time in its sole discretion. If we add or amend our Fees, we will provide you notice of such changes in accordance with Section 15.2 of this Agreement. Any change to our Fees shall become effective in the billing cycle following notice of such change to you as provided in this Agreement; provided however that if we have offered a specific duration and Fees for your use of the Service, we agree that the Fees will remain in force for that duration.

You may cancel your User Account at any time; however, there are no refunds for cancellation. In the event that Consider suspends or terminates your User Account or this Agreement for your breach of this Agreement, you understand and agree that you shall receive no refund or exchange for any unused time on a subscription, any license or subscription fees for any portion of the Service, any content or data associated with your User Account, or for anything else.

All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.

6. Privacy

We care about the privacy of our Users. You understand that by using the Service you consent to the collection, use and disclosure of your personally identifiable information and aggregate and/or anonymized data as set forth in our Privacy Policy, and to have your personally identifiable information collected, used, transferred to and processed in the United States. IF YOU CREATE OR USE YOUR OWN PRIVACY POLICY OR STATEMENT FOR YOUR BUSINESS IN CONNECTION WITH THE USE OF THE SERVICE, YOU HEREBY ACKNOWLEDGE AND AGREE TO INCLUDE IN SUCH PRIVACY POLICY OR STATEMENT, A DISCLOSURE WITH RESPECT TO OUR COLLECTION, USE AND DISCLOSURE OF PERSONALLY IDENTIFIABLE INFORMATION OF YOUR CUSTOMERS DISCLOSED TO US THAT IS CONSISTENT AND IN ACCORDANCE WITH OUR PRIVACY POLICY, INCLUDING WITH RESPECT TO THE POTENTIAL DISCLOSURE OF SUCH INFORMATION TO THIRD PARTY PARTNERS.

7. Security

Consider uses commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of your personal information and implement your privacy settings. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.

8. DMCA Notice

Since we respect artist and content owner rights, it is Consider’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).

If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Consider’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:

1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
2. Identification of the copyrighted work that you claim has been infringed;
3. Identification of the material that is claimed to be infringing and where it is located on the Service;
4. Information reasonably sufficient to permit Consider to contact you, such as your address, telephone number, and, e-mail address;
5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.

The above information must be submitted to the following DMCA Agent:

Attn: DMCA Notice
Company: Consider, Inc.
Address: 303 Twin Dolphin Drive, 6th Floor, Redwood City, CA 94065
Tel.: +1 (650) 691 8896
Email: support@consider.com

UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.

Please note that this procedure is exclusively for notifying Consider and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Consider’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.

In accordance with the DMCA and other applicable law, Consider has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Consider may also at its sole discretion limit access to the Service and/or terminate the User Accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

9. Third-Party Links and Information

The Service may contain links to third-party materials that are not owned or controlled by Consider. Consider does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access a third-party website or service from the Service or share your User Content on or through any third-party website or service, you do so at your own risk, and you understand that this Agreement and Consider’s Privacy Policy do not apply to your use of such sites. You expressly relieve Consider from any and all liability arising from your use of any third-party website, service, or content, including without limitation User Content submitted by other Users. Additionally, your dealings with or participation in promotions of advertisers found on the Service, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that Consider shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.

10. Indemnity

You agree to defend, indemnify and hold harmless Consider and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (a) your use of and access to the Service, including any data or content transmitted or received by you; (b) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (c) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (d) your violation of any applicable law, rule or regulation; (e) User Content or any content that is submitted via your User Account including without limitation misleading, false, or inaccurate information; (f) your willful misconduct; or (g) any other party’s access and use of the Service with your unique username, password or other appropriate security code.

11. No Warranty

THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CONSIDER OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, CONSIDER, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.

FURTHER, CONSIDER DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND CONSIDER WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

12. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CONSIDER, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SERVICE. UNDER NO CIRCUMSTANCES WILL CONSIDER BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CONSIDER ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL CONSIDER, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO CONSIDER HEREUNDER OR $100.00, WHICHEVER IS GREATER.

THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF CONSIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

13. Important Note to New Jersey Consumers

IF YOU ARE A CONSUMER RESIDING IN NEW JERSEY, THE FOLLOWING PROVISIONS OF THIS AGREEMENT DO NOT APPLY TO YOU (AND DO NOT LIMIT ANY RIGHTS THAT YOU MAY HAVE) TO THE EXTENT THAT THEY ARE UNENFORCEABLE UNDER NEW JERSEY LAW: (A) THE DISCLAIMER OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND (FOR EXAMPLE, TO THE EXTENT UNENFORCEABLE UNDER THE NEW JERSEY PUNITIVE DAMAGES ACT, NEW JERSEY PRODUCTS LIABILITY ACT, NEW JERSEY UNIFORM COMMERCIAL CODE AND NEW JERSEY CONSUMER FRAUD ACT); (B) THE LIMITATION ON LIABILITY FOR LOST PROFITS OR LOSS OR MISUSE OF ANY DATA (FOR EXAMPLE, TO THE EXTENT UNENFORCEABLE UNDER THE NEW JERSEY IDENTITY THEFT PROTECTION ACT AND NEW JERSEY CONSUMER FRAUD ACT); (C) APPLICATION OF THE LIMITATIONS OF LIABILITY TO THE RECOVERY OF DAMAGES THAT ARISE UNDER CONTRACT AND TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY (FOR EXAMPLE, TO THE EXTENT SUCH DAMAGES ARE RECOVERABLE BY A CONSUMER UNDER NEW JERSEY LAW, INCLUDING THE NEW JERSEY PRODUCTS LIABILITY ACT); (D) THE CALIFORNIA GOVERNING LAW PROVISION (FOR EXAMPLE, TO THE EXTENT THAT YOUR RIGHTS AS A CONSUMER RESIDING IN NEW JERSEY ARE REQUIRED TO BE GOVERNED BY NEW JERSEY LAW); AND (E) THE REQUIREMENT THAT YOU INDEMNIFY CONSIDER (FOR EXAMPLE, TO THE EXTENT THE SCOPE OF SUCH INDEMNITY IS PROHIBITED UNDER NEW JERSEY LAW).

14. Governing Law, Arbitration, and Class Action/Jury Trial Waiver

14.1 Governing Law

You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive service that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Santa Clara County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Santa Clara County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.

14.2 Arbitration

READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM CONSIDER. For any dispute with Consider, you agree to first contact us at support@consider.com and attempt to resolve the dispute with us informally. In the unlikely event that Consider has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at http://www.jamsadr.com. The arbitration will be conducted in Santa Clara County, California, unless you and Consider agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Consider from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.

14.3 Class Action/Jury Trial Waiver

WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND CONSIDER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.

14.4 Limitation on Claims

YOU AND CONSIDER AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE AND/OR YOUR USE THEREOF MUST COMMENCE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

15. General

15.1 Assignment

This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Consider without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.

15.2 Notification Procedures and Changes to the Agreement.

Consider may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Consider in our sole discretion. Consider reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. Consider is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Consider may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to the Agreement. Your continued use of the Service after any such change constitutes your acceptance of the new Terms and Conditions. If you do not agree to any of these terms or any future Terms and Conditions, do not use or access (or continue to access) the Service.

15.3 No Waiver.

No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Consider’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.

15.4 Contact

Please contact us at support@consider.com with any questions regarding this Agreement.

15.5 Disclosures; California Residents

The provider of services is Consider, Inc. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer the Service of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.

15.6 Entire Agreement/Severability

This Agreement, together with any amendments and any additional agreements you may enter into with Consider in connection with the Service, shall constitute the entire agreement between you and Consider concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.