IF YOU SIGN UP FOR A SUBSCRIPTION, THEN YOUR SUBSCRIPTION WILL CONTINUE FOR THE DURATION SET FORTH AT THE TIME OF PURCHASE AND WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT GENERATE’S THEN-CURRENT FEES FOR THE APPLICABLE SERVICES UNLESS YOU OPT NOT TO RENEW YOUR SUBSCRIPTION. ANY TERMINATION OF YOUR ACCOUNT WILL NOT CANCEL YOUR SUBSCRIPTION, AND IS NOT AN OPT OUT OF THE RENEWAL OF YOUR SUBSCRIPTION. YOU MAY CANCEL YOUR SUBSCRIPTION OR OPT OUT OF THE RENEWAL OF A SUBSCRIPTION IN ACCORDANCE WITH SECTION 5.3 BELOW. PLEASE BE AWARE THAT SECTION 11 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT THAT WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE PROVINCE OF BRITISH COLUMBIA, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.
By accessing or using the Services you:
Summary: If you use any of our services, like our app or website, then you are agreeing to these terms.
We may, without prior notice, change, or stop providing the Services or any portion thereof; or create usage limits for the Services or any portion thereof. We may permanently or temporarily terminate or suspend your access to the Services or any portion thereof (including the right to cancel any hosted sites) 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 of any portion of the Services for any reason or no reason, you continue to be bound by this Agreement until it is terminated and your Subscriptions will auto-renew and remain in effect until cancelled in accordance with Section 5.3. Generate expressly reserves the right to review every Account for excessive space and bandwidth utilization, and to terminate or apply additional fees to those Accounts that exceed allowed levels, in our sole discretion.
If you want to use our services, you must be able to legally agree to these terms.
We are excited that you want to use Generate, but you need to create your own account. The information associated with your account must be accurate and up-to-date, and you can always change your account information through your settings page. Generate isn’t responsible if someone else uses your account. Oh, and one more thing, don’t use someone else’s account, get your own, and don’t share your login credentials with anyone else!
If you connect your Generate account to a third-party service, you agree to let Generate access the stuff in your third-party account in accordance with your settings on that service and use it to provide our services to you. Generate is not responsible for your use of any third-party services or for any of your stuff the third-party service shares with us.
There are some ground rules you must abide by that are intended to protect our services and the Generate community. For example, you must not steal or attack our services or try to take other users’ personal information. Essentially, be reasonable and responsible. Do not engage in any activity that could be harmful to Generate, our services, or our users. When using our services, you are responsible for your interactions with others. Generate does not control, and is not responsible for, any user’s actions.
Our services are always changing and evolving, and we may decide to make changes, impose limits, and occasionally suspend or terminate certain offerings. We can also suspend or terminate any individual account at any time for any reason.
2.1 Some areas of the Services allow Users to post, publish, submit, upload, transmit, or otherwise make available on the Services (“Make Available”) content such as profile pictures or information, photos, images, music, videos, information, comments, questions, messages, works of authorship and other content or information (any such materials that a User does Make Available is referred to as “User Content”). You retain ownership of your User Content.
2.2 License Grant to Generate. You hereby grant Generate a royalty-free, sub-licensable, transferable, 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 User Content that you Make Available, including your or any third-party 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, in connection with the Services and Generate’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels. Notwithstanding anything contained herein to the contrary, by submitting your User Content to any forums, comments, or any other area on the Services, you hereby expressly permit Generate to identify you by your username (which may be a pseudonym) as the contributor of your User Content in any publication in any form, media, or technology now known or later developed in connection with your User Content. You hereby waive any moral, droit moral, or other author’s rights you may have in connection with any uses of your User Content by Generate in accordance with the foregoing. Generate 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.
2.3 License Grant to other Users. You also hereby grant each User of the Services a non-exclusive license to access your User Content through the Services and to use, reproduce, distribute, display, and perform such User Content as permitted through the functionality of the Services and under this Agreement.
2.4 Deleting Your User Content. If the features of the Services allow you to remove or delete User Content from the Services, the licenses granted by you in your User Content hereunder terminate within a commercially reasonable time after you remove or delete such User Content from the Services. Notwithstanding the foregoing, you understand and agree that Generate may retain, but not display, distribute, or perform, server copies of User Content that have been removed or deleted; provided that in certain cases, such as if User Content has been curated by Generate for display on Generate’s Collection, featured on Generate's Feed and Publications or in connection with Generate Challenges, used on Generate’s social channels, or included in printed content, the above licenses granted by you with respect to such User Content will not terminate and such User Content may continue to be used, displayed, distributed, and performed indefinitely.
2.5 Restrictions. You agree not to Make Available any User Content or take any action using the Services that: (a) may create a risk of, glorify, encourage, or threaten violence, harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or self-harm to you or any other person or to any animal; (b) may create a risk of, threaten, glorify, or encourage any other loss or damage to any person or property; (c) may discriminate against, degrade, shame, or harass or encourage, glorify, or promote hatred or violence toward any person or any groups of persons; (d) contains or depicts sexual acts or sexually explicit or pornographic material, including, but not limited to, depictions of children in a sexual, sexualized, or nude state; (e) seeks to harm, exploit, or groom children by exposing them to inappropriate content or soliciting personally identifiable details or otherwise; (f) may constitute, contribute to, depict, or encourage a crime, illegal activity, or a violation or infringement of any third party’s rights; (g) solicits or seeks to obtain or discloses the personal information of any other person; (h) you do not have the right to under any law or under contractual or fiduciary relationships; (i) deceptively impersonates another person or entity or contains information that is fraudulent or that you know is not correct and current; or (j) we deem to be otherwise unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libellous, threatening, profane, or otherwise objectionable or in violation of the Community Guidelines.
2.6 Representations and Warranties. If you Make Available any User Content, you promise, represent, and warrant that you have all necessary rights, consents, waivers, and authorizations to grant the rights and licenses in your User Content granted under the Agreement and for your User Content to be used in accordance with this Agreement and the functionality of the Services without causing a violation of the rights of others, including, without limitation, all necessary rights, consents, waivers, and authorizations under: (a) any performance, mechanical, and sound recording rights in musical compositions and sound recordings included in your User Content; (b) any rights of privacy or publicity with respect to the name, image, and likeness of any individual included in your User Content; and (c) any moral, droit moral, or authors rights to works of authorship included in your User Content.
2.7 No Responsibility. Generate takes no responsibility and assumes no liability for any User Content that you or any other User or third party may Make Available. Generate is not obligated to review or monitor, and does not approve, endorse, or make any representations or warranties with respect to User Content. You will be solely responsible for your User Content and the consequences arising therefrom. You agree that we are only providing a platform for you to Make Available your User Content. Generate reserves the right, but is not obligated to reject and/or remove any User Content that Generate believes, in its sole discretion, violates this Agreement or is otherwise inappropriate for the Services.
2.9 No Obligation to Pre-Screen Content. You acknowledge that Generate has no obligation to pre-screen User Content, including, but not limited to, your User Content, but Generate reserves the right in its sole discretion to pre-screen, refuse, or remove any User Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. In the event that Generate pre-screens, refuses, or removes any User Content, you acknowledge that Generate does so for Generate’s benefit, not yours. Without limiting the foregoing, Generate shall have the right to remove any User Content that violates the Agreement or is otherwise objectionable.
2.10 Investigations. Without limiting anything to the contrary herein, Generate shall have the right, but not obligation, in its sole discretion, to investigate potential violations of any provision of this Agreement and remove any of your User Content for any reason (or no reason), including if such User Content violates the Agreement or any applicable law.
In order to provide you with our services, we need certain rights to the content you share and post. When you upload your content, you grant us a license to use that content to provide the services and promote Generate’s business (for example, show your pictures, allow us to resize if needed for your screen size, feature your pictures on Generate’s Feed, Collection, Advertising, etc.). You also agree to give others the right to access the content you share or post while using our services. You are responsible and liable for what you share, copy, send, receive, or otherwise do while using our services. Don’t post stuff that you don’t have the rights to post or that otherwise violates the law or our Community Guidelines. You cannot use our services for things like posting pornographic material, harassing people, or sending spam. Be respectful and responsible.
3.1 Generate Services. 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 Services for your personal and private use only as permitted by the features of the Services.
3.2 Mobile Software. Subject to the terms and conditions of this Agreement, Generate hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software on mobile devices owned, leased, or controlled solely by you, for your personal or internal use. To use the Mobile Software you must have a mobile device that is compatible with the Mobile Software. You acknowledge that Generate may from time to time issue or require you to upgrade to an upgraded version of the Mobile Software. You agree that the terms and conditions of this Agreement will apply to all such upgrades. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and Generate or its third party partners or suppliers retain all right, title, and interest in the Mobile Software (and all copies thereof).
Beta Services. We may make available certain Services, including Mobile Software, that allow you to access and use certain features, technologies, and/or services that are not yet generally commercially released (collectively referred to as the “Beta Services”). In addition to the other provisions in this Agreement, the following additional provisions in this subsection apply to the Beta Services.
4.1 Generate Property. Except for your User Content, the Services 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 “Generate Property”), and all intellectual property rights therein or thereto, are the exclusive property of Generate or its licensors (including other Users who post User Content to the Service). Except as explicitly provided herein, nothing in this Agreement will 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 Generate Property. Use of Generate Property for any purpose not expressly permitted by this Agreement is strictly prohibited. Generate Software Inc, Generate, and all related graphics, logos, service marks and trade names used on or in connection with the Services (“Generate Marks”) are the trademarks of Generate and may not be used without permission in connection with your or any third-party products or services.
4.2 Feedback. You may choose to or we may invite you to submit feedback, modifications, suggestions, improvements, comments, ideas, or the like about Generate, the Services, or Generate’s other products or services, including without limitation about how to improve the Services or our other products or businesses (“Ideas”). You hereby grant to Generate a world-wide, royalty free, irrevocable, perpetual license to use, incorporate, or otherwise exploit any Ideas in any manner that we see fit.
5.1 Fees. Certain products or services offered on or through the Services may be provided for a fee or other charge, including services or features for which access and use is purchased on a time limited basis (each a “Subscription”). You agree to pay all fees or charges to your Account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Our current pricing and payment terms are listed on the mobile application store or website of the authorized third party through which you have purchased a Subscription (“Distributor”). Generate may add new products and services for additional fees and charges, or amend fees and charges for existing products and services, at any time in its sole discretion. Any increased fees for existing Subscriptions will apply solely on a forward-looking basis beginning on your next billing period.
5.3 Subscription. The fee for a Subscription will be billed by the Distributor or Generate at the start of your Subscription or, if applicable, at the end of any free trial period, and at regular intervals in accordance with your elections at the time of purchase. The timing of billing may change at any time. Your Subscription will continue to automatically renew indefinitely, including if you terminate your Account, until your Subscription is canceled in accordance with the Agreement. After your initial Subscription period, and again after any subsequent Subscription period, your Subscription will automatically renew on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period at Generate’s then-current price for such Subscription. You agree that your Account will be subject to this automatic renewal feature (even if you otherwise terminate your Account) unless you cancel your Subscription prior to the Renewal Commencement Date in accordance with any terms between you and the Distributor. You may opt out of the auto-renewal of your Subscription, or cancel your Subscription, in the manner described at the link here. If you cancel your Subscription, such cancellation will be effective as of the end of your then-current Subscription term (the “Cancellation Date”), and your Subscription will not be renewed after such then-current term. You will not be eligible for a prorated refund from Generate of any portion of the fees paid for the then current period of your Subscription. By purchasing a Subscription, you authorize the applicable Distributor or Generate to charge your Payment Information in accordance with your selected Subscription plan. Upon renewal of your Subscription, if the applicable Distributor or Generate does not receive payment via your Payment Information, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that Distributor or Generate may either cancel or suspend your Subscription and continue to attempt to charge your Payment Information until payment is received.
5.4 Free Trials. Certain Subscription offerings may offer a free trial prior to charging your payment method, the period of which will be communicated to you via the Services. If you decide to cancel your Subscription before Generate starts charging your payment method, you must cancel the Subscription before the free trial ends. Otherwise, you will be responsible for payment for the full term of the Subscription period.
5.5 No Refunds. Generate does not issue any refunds for any products or services purchased on or through the services and we are not obligated to provide any credits for partial use periods.
5.7 Taxes. The payments required under Section 5.1 of this Agreement do not include any Sales Tax that may be due in connection with the Services provided under this Agreement. If Generate determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, Generate shall collect such Sales Tax in addition to the payments required under Section 5.1 of this Agreement. If any Services, or payments for any Services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Generate, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Generate for any liability or expense Generate may incur in connection with such Sales Taxes. Upon Generate’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
You agree to defend, indemnify, and hold harmless Generate 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 Services, including any data or content, including User 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 herein; (c) any damage or harm or any violation of any third-party right, including any right of publicity of privacy or intellectual property right caused by you or your User Content; (d) your violation of any applicable law, rule or regulation; or (e) any other party’s access and use of the Services with your unique username, password or other appropriate security code.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Generate EXPRESSLY DISCLAIMS ALL 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 Generate OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, Generate, ITS SUBSIDIARIES, AND ITS LICENSORS DO NOT WARRANT THAT ANY Generate PROPERTY, RESULTS FROM THE SERVICE, OR USER CONTENT IS ACCURATE, RELIABLE, OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES 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 OR CONTENT THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICES.
9.1 Exclusion of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL Generate, 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 OR LOST BUSINESS OPPORTUNITIES, REPUTATION (E.G., OFFENSIVE OR DEFAMATORY STATEMENTS), LOSS OF DATA (E.G., DOWN TIME OR LOSS, USE OF, OR CHANGES TO, YOUR INFORMATION OR USER CONTENT), OR ANY THEORY OF LIABILITY.
9.2 Limitation on Damages. IN NO EVENT WILL Generate, 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 Generate HEREUNDER DURING THE 12 MONTHS PRECEDING THE EVENTS GIVING RISE TO THE CLAIM OR $100.00, WHICHEVER IS GREATER.
9.3 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Generate AND YOU. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF Generate HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
10.1 Term. The Agreement commences on the earlier of: (a) the date you first used the Services; and (b) the date you accepted the Agreement and will remain in full force and effect while you use the Services, unless earlier terminated in accordance with the Agreement.
10.2 Termination of Services by Generate. Generate may terminate this Agreement or your ability to access or use any or all Services at any time for any reason, including if timely payment cannot be charged to your Payment Information for any reason, if you have breached any provision of the Agreement, or if Generate is required to do so by law (e.g., where the provision of the Services are, or becomes, unlawful). If you have a Subscription and your Account is terminated by us, you must promptly cancel your Subscription in accordance with Section 5.3. Otherwise, your Subscription will remain in effect until the cancellation of your Subscription in accordance with Section 5.3 (independent of any termination of your Account or termination of this Agreement by us).
10.3 Termination by You. If you want to terminate this Agreement, you must do so by: (a) notifying Generate at any time; (b) cancel all of your Subscriptions in accordance with Section 5.3; and (c) terminate your Account for all of the Services that you use. Your notice should be sent, in writing, to Info@generateapp.com. If you seek to terminate this Agreement in accordance with this Section, this Agreement will remain in effect until the Cancellation Date of all of your Subscriptions in accordance with Section 5.3 (independent of any termination of your Account or notice of your termination of this Agreement).
10.4 Effect of Termination. Termination of the Agreement, your Account, or of your access to or use of any Services may include removal of access to the applicable Services and barring of further use of such Services. Termination of this Agreement or your Account also includes disassociation or deletion of your username, your password and, all related information, files and User Content associated with or inside your Account (or any part thereof), including your User Content. Upon termination of the Agreement, your right to use the Services, including Mobile Software will automatically terminate. Generate will not have any liability whatsoever to you for any suspension or termination, including for deletion of your User Content. All provisions of the Agreement which by their nature should survive, shall survive termination of this Agreement, including without limitation, ownership provisions, warranty disclaimers, arbitration and governing law, and limitations of liability.
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Generate and limits the manner in which you can seek relief from us.
11.1 Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Services, to any products sold or distributed through the Services, or to any aspect of your relationship with Generate, will be resolved by binding arbitration, rather than in court, except that: (a) you may assert claims or seek relief in court if your claims qualify; and (b) you or Generate may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
11.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to: (a) determine the scope and enforceability of this Arbitration Agreement; and (b) resolve any dispute related to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Generate. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
11.4 Waiver of Jury Trial. YOU AND Generate HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Generate are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 11.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
11.5 Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the Provincial or Federal Courts located in the Province of British Columbia and Country of Canada. All other disputes, claims, or requests for relief shall be arbitrated.
11.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: opt-out@Generateapp.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Generate username (if any), the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
11.7 Severability. Except as provided in subsection 11.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
11.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Generate.
11.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Generate makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Generate at the following address: Suite 1600 Cathedral Place. 925 West Georgia Street. Vancouver, British Columbia V6C 3L2
12.1 Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Generate without restriction. Any attempted transfer or assignment in violation hereof will be null and void.
12.3 Electronic Communications. By entering into this Agreement or using the Services, you agree to receive communications from us, including via email, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. The communications between you and Generate may take place via electronic means, whether you visit the Services or send Generate emails, or whether Generate posts notices on the Services or communicates with you via email. For contractual purposes, you: (a) consent to receive communications from Generate in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Generate provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Services, updates concerning new and existing features on the Services, communications concerning promotions run by us or our third-party partners, and news concerning Generate and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE IN THE PROMOTIONAL EMAIL ITSELF. IF YOU WISH TO OPT OUT OF OUR TEXTS, YOU MAY TEXT “STOP” FROM THE MOBILE DEVICE RECEIVING THE TEXT MESSAGES. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE SERVICES. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING TEXTS MAY IMPACT YOUR USE OF CERTAIN FEATURES OF THE SERVICES.
12.4 Limitation Period. YOU AND Generate AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, THE SERVICES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
12.5 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Generate agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the provincial or federal courts located in Vancouver, British Columbia.
12.6 Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE Province of British Columbia, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
12.7 Notice. Where Generate requires that you provide an email address, you are responsible for providing Generate with your most current email address. In the event that the last email address you provided to Generate is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Generate’s dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to Generate at the following address: 1500 Broadway, Attn: Legal, Suite 1600 Cathedral Place. 925 West Georgia Street. Vancouver, British Columbia V6C 3L2. Such notice shall be deemed given when received by Generate by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
12.8 International Users. The Services are controlled and operated from its facilities in Canada. Generate makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable international and local laws and regulations, including but not limited to export control, import, and trade sanctions regulations.
12.9 Export Control. You may not use, export, import, or transfer the Services except as authorized by Canadian law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported: (a) to any countries or territories subject to a Canadian. government embargo; or (b) to any individual or entity on the SDN List or Foreign Sanctions Evaders List maintained by OFAC or the Denied Persons List, Entity List, or Unverified List maintained by BIS (collectively, “Prohibited Party Lists”). By using the Services, you represent and warrant that: (i) you are not located in an Embargoed Country; and (ii) you are not listed on any Prohibited Party Lists. You also will not use the Services for any purpose prohibited by Canadian law, including for the development, design, manufacture or production of missile, nuclear, chemical or biological weapons. You acknowledge and agree that products, services, or technology provided by Generate are subject to the export control and trade sanctions laws and regulations of Canada. You shall comply with these laws and regulations and shall not, without prior government authorization, export, re-export, or transfer Generate products, services, or technology, either directly or indirectly, to any country or person in violation of such laws and regulations.
12.10 Entire Agreement/Severability. This Agreement, together with any amendments and any additional agreements you may enter into with Generate in connection with the Services, will constitute the entire agreement between you and Generate concerning the Services. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this Agreement, which will remain in full force and effect. Headings are included for convenience only and will not be considered in interpreting this Agreement. For the avoidance of doubt, as used in this Agreement, the word including means including but not limited to.
12.11 No Waiver. No waiver of any term of this Agreement will be deemed a further or continuing waiver of such term or any other term, and Generate’s failure to assert any right or provision under this Agreement will not constitute a waiver of such right or provision.
12.12 App Stores. With respect to any Mobile Software accessed through or downloaded from the Apple App Store (an “App Store Sourced Software”), you will only use the App Store Sourced Software (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Mobile Software access through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the Mobile Software on a shared basis within your designated family group. You agree to comply with all applicable Canadian and foreign laws related to use of the Mobile Software and the Services. You acknowledge and agree that the availability of the Mobile Software and the Services are dependent on the third party from whom you received the Mobile Software license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that this Agreement is between you and Generate and not with the App Store. Generate, not the App Store, is solely responsible for Services, including the Mobile Software, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Mobile Software, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Services, including the Mobile Software. You agree to comply with, and your license to use the Mobile Software is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Services, including the Mobile Software. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
12.13 Mobile Software from Apple App Store. The following also applies to any App Store Sourced Software.
Please contact us with any questions regarding this Agreement or the Services.
This Agreement was last modified on May 20, 2020.
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