TYB, Inc. Terms of Service

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LAST UPDATED: October 9, 2024

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These terms of use are entered into by and between you and TYB Technologies, LLC and its subsidiaries and affiliates ("Company," "we," or "us"). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, "Terms of Use"), govern your access to and use of https://www.tyb.xyz, including any content, functionality, and services offered on or through https://www.tyb.xyz (the "Website").

Please read the Terms of Use carefully before you start to use the Website. By using the Website, you accept and agree to be bound and abide by these Terms of Use, including our mandatory arbitration provision and class action waiver in Section 21 and our Privacy Policy, found at https://www.tyb.xyz/privacy-policy, incorporated herein by reference. If you do not want to agree to these Terms of Use or the Privacy Policy, you must not access or use the Website. 

TYB provides its community rewards platform products and services ("TYB Service") (to brands and fans) via the TYB software application available on mobile devices (the "Mobile App").  Use of the TYB Service is provided by TYB pursuant to a separate digitally executed agreement provided on the Mobile App ("Mobile App EULA"). Those additional terms become part of your agreement with us, if you use the TYB Services.

If you have any questions about these Terms of Use or our Website or TYB Service, please contact us at help@tyb.xyz. 

1. ELIGIBILITY 

The TYB Services are not intended for use by individuals under the age of 13. Individuals under the age of 13 may not create accounts or use the TYB Services. You must be at least 18 years of age (or the age of legal majority where you live) to use the TYB Services. If you are between 13 and 18 years of age (or the age of legal majority where you live), you may use TYB Services only under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian of a user between the age of 13 and 18 (or the age of legal majority where you live), you agree to be fully responsible for the acts or omissions of such user in relation to TYB Services. If you use TYB Services on behalf of another person or entity, (a) all references to “you” throughout these Terms will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf, and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us. 

2. USER ACCOUNTS AND ACCOUNT SECURITY 

You may need to register for an account to access some or all of TYB Services. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. If you permit others to use your account credentials, you are responsible for the activities of such users that occur in connection with your account. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.

3. ACCESSING THE WEBSITE AND ACCOUNT SECURITY

We reserve the right to withdraw or amend this Website, and any service or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict user access, including registered user access, to some parts of the Website or the entire Website.

You are responsible for both:

· Making all arrangements necessary for you to have access to the Website.

· Ensuring that all persons who access the Website through your internet connection are aware of these Terms of Use and comply with them.

To access the Website or some of the resources it offers, you may be asked to provide certain registration details or other information. It is a condition of your use of the Website that all the information you provide on the Website is correct, current, and complete. You agree that all information you provide to register with this Website or otherwise, including, but not limited to, through the use of any interactive features on the Website, is governed by our Privacy Policy https://www.tyb.xyz/privacy-policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

If you choose, or are provided with, a username, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Website or portions of it using your username, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

We have the right to disable any username, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Use.

4. PROHIBITED USES:

You will not violate contract, intellectual property right or other third-party right, or commit a tort, and you are solely responsible for your conduct while using the Website. 

You may use the Website only for lawful purposes and in accordance with these Terms of Use. You agree not to use the Website:

· In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).

Additionally, you agree not to:

· Use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party's use of the Website, including their ability to engage in real time activities through the Website (if any).

· Use any robot, spider, or other automatic device, process, or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.

· Use any manual process to monitor or copy any of the material on the Website, or for any other purpose not expressly authorized in these Terms of Use, without our prior written consent.

· Use any device, software, or routine that interferes with the proper working of the Website.

· Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.

· Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Website. 

· Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.

· Otherwise attempt to interfere with the proper working of the Website. 

· Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from the Website.

· Develop or use any applications that interact with our Website without our prior written consent; Bypass or ignore instructions contained in our robots.txt file. 

· Use the Website for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates these Terms of Use. 

5. USER CONTENT 

(a) The TYB Services may allow you and other users to create, post, store, purchase, sell, trade, publish, and share content, access brand tokens and badges, which provide tickets to events or free products, messages, text, photos, videos, software, and other materials (collectively, “User Content”). Except for the license you grant below, as between you and TYB, you retain all rights in and to your User Content, excluding any portion of the TYB Services included in your User Content. 

(b) You grant TYB, and, if you join a Brand Partner Community, that Brand Partner, a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform, and display your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you. When you post or otherwise share User Content on or through the TYB Services, you understand that your User Content and any associated information (such as your username or profile photo) may be visible to others. 

(c) You may not create, post, store, or share any User Content that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that your User Content, and our use of such content as permitted by these Terms, will not violate any rights of or cause injury to any person or entity. Although we have no obligation to screen, edit, or monitor User Content, we may delete or remove User Content at any time and for any reason with or without notice. 

6. PROGRAMS AND DIGITAL COLLECTIBLES 

TYB may, as a part of the TYB Service, maintain programs that allow users to earn rewards for various activities ("Programs") such as completing respective Band Partner challenges or making purchases on Brand Partner websites. Each Program has specific requirements that are found in applicable Program pages, Program dashboards, in communications related to the Program, in supplemental terms, or contracts specific to that Program (collectively, “Program Materials”). The TYB Referral Program rewards users with coins when they invite a personal contact to join a Brand Partner's community. Coins are not a substitute for real currency, do not earn interest, and have no equivalent value in real currency. Except as otherwise outlined in the Program with respect to Brand Partners, Coins cannot be redeemed for any fiat currency, and TYB is not obligated to exchange your coins for anything else of value.

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TYB may, as part of the TYB Services, create or provide digital tokens, badges, digital art, or other collectibles incorporating, based on, or otherwise associated with our Brand Partners’ content (“Digital Collectibles”). Our Brand Partners may offer, and will be solely and exclusively responsible for offering, those Digital Collectibles to you. The Brand Partner will be solely and exclusively responsible for the terms and conditions applicable to your use and exploitation of those Digital Collectibles, including, without limitation, any benefits offered to you in connection with those Digital Collectibles; provided, however, that all benefits in connection with Digital Collectibles will in all instances be personal to you. You agree that you will not (a) sell, transfer, or otherwise distribute any Digital Collectibles to any third party (including, without limitation, any other users), (b) modify the Digital Collectible or its contents in any way, combine the Digital Collectible or its contents with, or embed the Digital Collectible or its contents into any digital or other content or media, or (c) attempt to mint, tokenize, or create additional cryptographic tokens representing the Digital Collectible on any platform. If you have any questions about the Digital Collectibles, please directly contact the applicable Brand Partner. 

7. PROHIBITED CONDUCT AND CONTENT 

(a) You will not violate any applicable law, contract, intellectual property right or other third-party right, or commit a tort, and you are solely responsible for your conduct while using the TYB Services. You will not: 

• Engage in any harassing, threatening, intimidating, predatory, or stalking conduct; 
• Use or attempt to use another user’s account without authorization from that user and TYB; 
• Impersonate or post on behalf of any person or entity or otherwise misrepresent your affiliation with a person or entity; 
• Sell or resell the TYB Services; 
• Commercially use the TYB Services; 
• Copy, reproduce, distribute, publicly perform, or publicly display all or portions of the TYB Services, except as expressly permitted by us or our licensors; 
• Modify the TYB Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon the TYB Services; 
• Use the TYB Services other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the TYB Services or that could damage, disable, overburden or impair the functioning of the TYB Services in any manner; 
• Reverse engineer any aspect of the TYB Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of the TYB Services; 
• Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from the TYB Services; 
• Develop or use any applications that interact with the TYB Services without our prior written consent; 
• Send, distribute or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes; 
• Bypass or ignore instructions contained in our robots.txt file; or 
• Use the TYB Services for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates these Terms. 

(b) You may also post or otherwise share only User Content that is nonconfidential and that you have all necessary rights to disclose. You may not create, post, store, or share any User Content that: 

• Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, or fraudulent; 
• Would constitute, encourage, or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national, or international law; 
• May infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party; 
• Contains or depicts any statements, remarks, or claims that do not reflect your honest views and experiences; 
• Impersonates, or misrepresents your affiliation with, any person or entity or the authorship of such User Content; 
• Contains any unsolicited promotions, political campaigning, advertising, or solicitations; 
• Contains any private or personal information of a third party without such third party’s consent; 
• Contains any viruses, corrupted data, or other harmful, disruptive, or destructive files or content; or 
• In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying the TYB Services, or may expose TYB or others to any harm or liability of any type. 

(c) Enforcement of this Section 7 is solely at TYB’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 7 does not create any private right of action on the part of any third party or any reasonable expectation that the TYB Services will not contain any content that is prohibited by such rules. 

(d) Please note that parental control protections (such as computer hardware, software, or filtering services) may be commercially available to assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections should be available at: https://en.wikipedia.org/wiki/Comparison_of_content-control_software_and_providers (last checked on February 23, 2022).

8. THIRD-PARTY SERVICES; INHERENT RISKS OF BLOCKCHAIN 

The TYB Services available via the Mobile App and subject to the Mobile App EULA include Blockchain Services (defined below).   

(a) You acknowledge and agree that the rewards offered through the TYB Services are dependent on the blockchain protocol and network services offered to you by Ava Labs, Inc. d/b/a Avalanche or another third-party blockchain and network service provider (“Blockchain Service Providers”) (collectively, the “Blockchain Services”). As part of the Blockchain Services, Digital Collectibles are respectively created and recorded on the relevant blockchain protocol and network that is outside the control of TYB. 

(b) Technological Risks. The Blockchain Services may be adversely affected by malfunctions, congestion, bugs, defects, hacking, theft, attack, or negligent coding or design, which may result in a total loss or forfeiture of Digital Collectibles or the failure to complete your desired transaction (whether at your desired time or at all). 

(c) Legal Risks of Blockchain Technology. You acknowledge that as a new technology, the Blockchain Services are subject to many risks and uncertainties, and that TYB is not responsible or liable for the loss of Digital Collectibles related to the functioning of Blockchain Services. TYB is also not responsible or liable for the Blockchain Services, nor for the acts or omissions of any contributor to the Blockchain Services that may affect the digital assets. It is not a breach of these Terms of Use if TYB is not able to perform the TYB Services due to unavailability of or errors by the Blockchain Services. You understand that TYB will not be responsible for any communication failures, disruptions, errors, distortions, or delays you may experience when using the Digital Collectibles, however caused. 

(d) TYB DISCLAIMS ALL LIABILITY OF ANY KIND RELATING TO THE ACTS OR OMISSIONS OF THIRD PARTIES THAT ARE OUTSIDE THE CONTROL OF TYB, INCLUDING, WITHOUT LIMITATION, THOSE RELATED TO THE BLOCKCHAIN SERVICES. 

9. OWNERSHIP; LIMITED LICENSE 

The Website, including the text, graphics, images, photographs, videos, illustrations, and other content contained therein, are owned by TYB or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms of Use, all rights in and to the Website are reserved by us or our licensors. Subject to your compliance with these Terms of Use, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use the Website for your own personal, noncommercial use. Any use of the Website other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and violate our intellectual property rights. 

You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Website, except as follows:

· Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.

· You may store files that are automatically cached by your Web browser for display enhancement purposes.

· You may print or download one copy of a reasonable number of pages of the Website for your own personal, non-commercial use and not for further reproduction, publication, or distribution.

· If we provide desktop, mobile, or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement for such applications.

· If we provide social media features with certain content, you may take such actions as are enabled by such features.

You must not:

· Modify copies of any materials from this site.

· Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.

· Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site.

You must not access or use for any commercial purposes any part of the Website or any services or materials available through the Website. 

If you wish to make any use of material on the Website other than that set out in this section, please address your request to: help@tyb.xyz. 

If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Website in breach of the Terms of Use, your right to use the Website will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Website or any content on the Website is transferred to you, and all rights not expressly granted are reserved by TYB. Any use of the Website not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark, and other laws.

10. TRADEMARKS 

TYB Technologies, LLC and our logos, our product or service names, our slogans, and the look and feel of the Website are trademarks of TYB and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names, and TYB names or logos mentioned on the Website are the property of their respective owners. You must not use such marks without the prior written permission of TYB. Reference to any products, services, processes, or other information by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation by us. 

11. FEEDBACK 

You may voluntarily communicate to us any questions, comments, suggestions, ideas, original or creative materials, or other information about TYB, the Website or the TYB Service (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, or improve the Feedback in TYB’s sole discretion. You understand that TYB may treat Feedback as nonconfidential. 

12. RELIANCE ON INFORMATION POSTED

The information presented on or through the Website is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.

Information About You and Your Visits to the Website

All information we collect on this Website is subject to our Privacy Policy https://www.tyb.xyz/privacy-policy. By using the Website, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy. 

13. REPEAT INFRINGER POLICY; COPYRIGHT COMPLAINTS 

In accordance with the Digital Millennium Copyright Act and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others. If you believe that anything on the TYB Services infringes any copyright that you own or control, you may notify TYB’s designated agent as follows: 

Designated Agent: TYB Legal

Address: 4764 E Sunrise Dr. Unit #464

Tucson, Arizona 85718

Telephone Number: +1-218-209-2618

E-mail Address: legal@tyb.xyz

Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on the TYB Services is infringing, you may be liable to TYB for certain costs and damages. 

14. THIRD-PARTY CONTENT 

We may provide information about third party products, services, activities, or events, or we may allow third parties to make their content and information available on or through the Website (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. TYB does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk. If the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.

15. LINKING TO THE WEBSITE 

You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our express written consent. 

You agree to cooperate with us in causing any unauthorized framing or linking immediately to stop. We reserve the right to withdraw linking permission without notice.

16. INDEMNIFICATION 

To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless TYB and our officers, directors, agents, partners, and employees (individually and collectively, the “TYB Parties”) from and against any losses, liabilities, claims, demands, damages, expenses, or costs (“Claims”) arising out of or related to (a) your access to or use of the Website; (b) your Feedback; (c) your violation of these Terms of Use; (d) your violation, misappropriation, or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Website. You agree to promptly notify TYB Parties of any third-party Claims, cooperate with TYB Parties in defending such Claims and pay all fees, costs, and expenses associated with defending such Claims (including attorneys’ fees). You also agree that the TYB Parties will have control of the defense or settlement, at TYB’s sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and TYB or the other TYB Parties. 

17. DISCLAIMERS 

YOUR USE OF OUR WEBSITE IS AT YOUR SOLE RISK. EXCEPT AS OTHERWISE PROVIDED IN A WRITING BY US, OUR WEBSITE AND ANY CONTENT THEREIN ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, TYB DOES NOT REPRESENT OR WARRANT THAT OUR WEBSITE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE. WHILE TYB ATTEMPTS TO MAKE YOUR USE OF OUR WEBSITE AND ANY CONTENT THEREIN SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT OUR WEBSITE OR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE WEBSITES. 

18. LIMITATION OF LIABILITY 

(a) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TYB AND  ITS SUBSIDAIRES,  AFFILIATES AND THIRD PARTY LICENSORS WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY—WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHERWISE—FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES OR LOST PROFITS, EVEN IF TYB OR THE OTHER TYB PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

(b) THE TOTAL LIABILITY OF TYB AND ITS SUBSIDAIRES,  AFFILIATES AND THIRD PARTY LICENSORS FOR ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR OUR WEBSITE, REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO $100. 

(c) THE LIMITATIONS SET FORTH IN THIS SECTION 18 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, FRAUD, OR INTENTIONAL MISCONDUCT OF TYB OR THE OTHER TYB PARTIES OR FOR ANY OTHER MATTERS IN WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. ADDITIONALLY, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

19. RELEASE 

To the fullest extent permitted by applicable law, you release TYB and the other TYB Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” 

20. TRANSFER AND PROCESSING DATA 

In order for us to provide our Website, you agree that we may process, transfer, and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law. For more details on transferring of personal information, please see our Privacy Policy tyb.xyz/privacy-policy. 

21. DISPUTE RESOLUTION; BINDING ARBITRATION 

PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH TYB AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US, UNLESS YOU OPT OUT OF ARBITRATION BY FOLLOWING THE INSTRUCTIONS SET FORTH BELOW. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION PROVISION. IN ADDITION, ARBITRATION PRECLUDES YOU FROM SUING IN COURT OR HAVING A JURY TRIAL. 

(a) No Representative Actions. You and TYB agree that any dispute arising out of or related to these Terms of Use or our Website is personal to you and TYB and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding. 

(b) Arbitration of Disputes. Except for small claims disputes in which you or TYB seeks to bring an individual action in small-claims court located in the county of your billing address or disputes in which you or TYB seeks injunctive or other equitable relief for the alleged infringement or misappropriation of intellectual property, you and TYB waive your rights to a jury trial and to have any other dispute arising out of or related to these Terms of Use or our Website, including claims related to privacy and data security, (collectively, “Disputes”) resolved in court. Instead, for any Dispute that you have against TYB you agree to first contact TYB and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to TYB by email at legal@tyb.xyz or by certified mail addressed to Attention: Legal. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the Dispute; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and TYB cannot reach an agreement to resolve the Dispute within thirty (30) days after such Notice is received, then either party may submit the Dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All Disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in Tucson, Arizona unless you are a consumer, in which case you may elect to hold the arbitration in your county of residence. For purposes of this Section 21, a “consumer” means a person using the Website for personal, family or household purposes. You and TYB agree that Disputes will be held in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules is available on the JAMS website and is hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason. 

(c) You and TYB agree that these Terms of Use affect interstate commerce and that the enforceability of this Section 21 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms of Use, and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual. 

(d) The arbitration will allow for the discovery or exchange of non-privileged information relevant to the Dispute. The arbitrator, TYB, and you will maintain the confidentiality of any arbitration proceedings, judgments, and awards, including information gathered, prepared, and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision. 

(e) You and TYB agree that for any arbitration you initiate, you will pay the filing fee (up to a maximum of $250 if you are a consumer), and TYB will pay the remaining JAMS fees and costs. For any arbitration initiated by TYB, TYB will pay all JAMS fees and costs. You and TYB agree that the state or federal courts of the State of Arizona and the United States sitting in Tucson, Arizona have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. 

(f) Any Dispute must be filed within one year after the relevant claim arose; otherwise, the Dispute is permanently barred, which means that you and TYB will not have the right to assert the claim. 

(g) You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 21 by email at legal@tyb.xyz or by certified mail addressed to Attention: Legal 4764 E Sunrise Dr, Unit 464, Tucson, Arizona 85718. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 22. 

(h) If any portion of this Section 21 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms of Use; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 21 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 21; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 21 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 21 will be enforceable. 

22. GOVERNING LAW AND VENUE 

Any dispute arising from these Terms of Use and your use of the Website will be governed by and construed and enforced in accordance with the laws of Arizona, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of Arizona or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small-claims court will be resolved in the state or federal courts of Arizona and the United States, respectively, sitting in Tucson, Arizona. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

23. MODIFYING AND TERMINATING THE WEBSITE

We reserve the right to modify the Website or to suspend or stop providing all or portions of the Website at any time. You also have the right to stop using the Website at any time. We are not responsible for any loss or harm related to your inability to access or use the Website. We may update the content on this Website from time to time, but its content is not necessarily complete or up to date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material.

24. AMENDMENTS 

We may make changes to these Terms of Use from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Website, or updating the date at the top of these Terms of Use. Unless we say otherwise in our notice, the amended Terms of Use will be effective immediately, and your continued use of our WEBSITE after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms of Use, you must stop using our WEBSITE. 

25. SEVERABILITY 

If any provision or part of a provision of these Terms of Use is unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms of Use and does not affect the validity and enforceability of any remaining provisions. 

26. MISCELLANEOUS 

(a) The failure of TYB to exercise or enforce any right or provision of these Terms of Use will not operate as a waiver of such right or provision. These Terms of Use together with our Privacy Policy and Mobile App End User License Agreement reflect the entire agreement between the parties relating to the subject matter hereof and supersede all prior agreements, representations, statements, and understandings of the parties. The section titles in these Terms of Use are for convenience only and have no legal or contractual effect. Use of the word “including” will be interpreted to mean “including without limitation.” Except as otherwise provided herein, these Terms of Use are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. You agree that communications and transactions between us may be conducted electronically. 

(b) Under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.

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