Terms of Use

Welcome and thank you for your interest in the SmartEmoji® Mobile Engagement Platform. The platform is a social messaging and app service empowered by SmartEmoji Technology. This technology allows users to receive, create, and share custom content across social media and the internet. SmartEmoji content can include alphanumeric characters and custom emoji together within posted messages.

The SmartEmoji service and website (located at smartemojitech.com) along with the associated services, networks, downloadable software and mobile applications (including tablet applications) (collectively, the “Service”) is operated by Bad Donkey Social Company (“BDSC,” “BDS Mobile,” “we,” or “us”). These Terms of Use are a legally binding contract between you, an individual user or single entity (individually “User” or collectively, “Users”) and BDSC regarding your use of the Service.

PLEASE READ THE FOLLOWING TERMS OF USE CAREFULLY. BY ACCESSING AND USING THE SERVICE OR BY OTHERWISE INDICATING YOUR CONSENT TO THESE TERMS OF USE (SUCH AS BY TAPPING OR CLICKING A CHECKBOX OR AN “I ACCEPT” BUTTON), YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING OUR PRIVACY POLICY (COLLECTIVELY, THESE “TERMS”). If you are not eligible or do not agree to these Terms, then please do not use the Service.

These Terms provide that all disputes between you and BDSC will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THESE TERMS (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT A JUDGE OR JURY and your claims cannot be brought as a class action. Please review Section 16 below for the details regarding your agreement to arbitrate any disputes with BDSC.

  1. Eligibility. You must be at least thirteen (13) years of age to use the Service. By agreeing to these Terms, you represent and warrant to us: (i) that you are at least thirteen (13) years of age; (ii) that you have not previously been suspended or removed from the Service; and (iii) that your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are using the Service on behalf of an entity, organization or company, please contact BDSC at support@bdsmobiletech.com to enter into a separate agreement to use the Service.
  2. Accounts and Registration. To access most features of the Service, you may have to register for an account. When you register for an account, you may be required to provide us with some information about yourself (such as your email address or other contact information). You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you may be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you should promptly change your login information. If you are unable to access your profile, you must immediately notify us at support@bdsmobiletech.com.
  3. Payment. Access to the Service, or to certain features of the Service (such as certain SmartEmoji), may require you to pay fees. Before you are required to pay any fees, you will have an opportunity to review and accept the applicable fees that you will be charged. All fees are in U.S. Dollars and are non-refundable. BDSC may change the fees for the Service or any feature of the Service, including adding additional fees or charges, on a going-forward basis at any time. BDSC will charge the payment method you specify at the time of purchase. You authorize BDSC to charge all sums described herein to such payment method. If you pay any applicable fees with a credit card, BDSC may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
  4. User Content
    1. User Content Generally. Certain features of the Service permit users to post content, including messages, text, photos, images, audio, video and any other types of works (collectively, “User Content”) and to publish User Content on the Service. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Service.
    2. License Grant to BDSC. By posting or publishing User Content, you grant BDSC a perpetual, irrevocable, worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify and distribute your User Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed). Any such use of your User Content by BDSC may be without any compensation paid to you.
    3. Limited License Grant to Other Users. By posting and sharing User Content with another user of the Service, you hereby grant that user a non-exclusive license to access and use such User Content as permitted by these Terms and the functionality of the Service. YOU ALSO ACKNOWLEDGE THAT ANY USER CONTENT THAT YOU SHARE WITH ANOTHER USER OF THE SERVICE MAY BE FORWARDED TO OTHERS USING THE SERVICE OR PUBLICLY SHARED OUTSIDE OF THE SERVICE, REGARDLESS OF WHETHER YOU HAVE GRANTED THE USER PERMISSION TO DO SO OR YOU HAVE DISCONTINUED YOUR USE OF THE SERVICE.
    4. User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting and publishing User Content, you affirm, represent and warrant that:
      • you are the creator and owner of, or have the necessary licenses, rights, consents and permissions to use and to authorize BDSC and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section 4 and in the manner contemplated by BDSC and these Terms; and
      • your User Content, and the use thereof as contemplated herein, does not and will not: (i) infringe, violate or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity or any other intellectual property or proprietary right; or (ii) slander, defame or libel any third party.
    5. User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. BDSC may, however, at any time and without prior notice, screen, remove, edit or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent or objectionable. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against BDSC with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, BDSC does not permit copyright-infringing activities on the Service.
  5. Digital Millennium Copyright Act
    1. DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have any complaints with respect to material posted on the Service, you may contact our Designated Agent at the following address:
      Bad Donkey Social Company
      411 W. Main Street
      Madison, WI 53703
      E-mail: support@bdsmobiletech.com
      Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
  • an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
  • a description of the copyrighted work or other intellectual property that you claim has been infringed;
  • a description of the material that you claim is infringing and where it is located on the Service;
  • your address, telephone number and email address;
  • a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent or the law; and
  • a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

 

    1. Repeat Infringers. BDSC will promptly terminate without notice the accounts of users whom are determined by BDSC to be “repeat infringers.” A repeat infringer is a user who has been notified of infringing activity more than twice and/or has had User Content removed from the Service more than twice.
    2. Counter Notification. If you elect to send us a counter notice, to be effective it must be a written communication to our Designated Agent (indicated above) that includes the following (please consult your legal counsel or see 17 U.S.C. Section 512(g)(3) to confirm these requirements):
      • a physical or electronic signature of the subscriber;
      • identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
      • a statement by the subscriber, that under penalty of perjury, subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
      • the subscriber’s name, address and telephone number and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which BDSC may be found, and that the subscriber will accept service of process from the person who provided notification under Section 512(c)(1)(C) or an agent of such person.
    3. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
  1. Prohibited Conduct.
    1. BY USING THE SERVICE, YOU AGREE NOT TO:
      • use the Service for any illegal purpose, or in violation of any local, state, national or international law;
      • violate, or encourage others to violate, the rights of third parties, including infringing or misappropriating third-party intellectual property rights;
      • harass, abuse, threaten or stalk other users of the Service;
      • modify or create derivative works of any SmartEmoji distributed by BDSC or its corporate partners, or unless expressly authorized, use or distribute such SmartEmoji outside of the Service;
      • post, upload or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, hateful or otherwise inappropriate;
      • interfere with security-related features of the Service, including without limitation by (i) disabling or circumventing features that prevent or limit use or copying of any content, or (ii) reverse engineering or otherwise attempting to discover the source code of the Service or any part thereof except to the extent that such activity is expressly permitted by applicable law;
      • interfere with the operation of the Service or any user’s enjoyment of the Service, including without limitation by (i) uploading or otherwise disseminating viruses, adware, spyware, worms or other malicious code, (ii) making unsolicited offers or advertisements to other users of the Service, (iii) attempting to collect, personal information about users or third parties without their consent; or (iv) interfering with or disrupting any networks, equipment or servers connected to or used to provide the Service, or violating the regulations, policies or procedures of such networks, equipment or servers;
      • perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the Service accounts of others without permission or falsifying your age or date of birth; or
      • attempt to do any of the foregoing in this Section 6, or assist or permit any persons in engaging or attempting to engage in any of the activities described in this Section 6.
  2. Promotional Offerings; Third-Party Tools.

1.Third-Party Promotional Offers. Through your use of the Service, you may have the option to receive content as well as product and service offerings (including but not limited to Banner, Coupon, Audio, Video, Gif, Geo and Buy-Now purchase offerings from third parties with whom we have a relationship (“Merchants”). The Merchants may also make promotional offers redeemable for third-party products and services (collectively, “Offers”) available through the Service. Such Offers may be subject to additional terms and conditions, as required by the relevant Merchant. In the event that you are unable to redeem an Offer, please contact the relevant Merchant. BDSC EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR ALL OFFERS AND IS NOT RESPONSIBLE FOR YOUR INABILITY TO REDEEM THEM. You hereby waive and release BDSC and its officers, directors, employees and agents from any and all claims, liabilities, costs, damages and/or injury arising from or related to: (i) the Offers (including the terms governing their redemption and any inability to redeem them); (ii) the content, services and products of the Merchants; or (iii) any act or omission by the Merchants (including their failure to comply with the terms of the Offers or applicable law). TO THE EXTENT APPLICABLE TO THE PRECEDING WAIVER, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 (AND ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION) WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” The Merchants are solely responsible for compliance with applicable unclaimed property and other laws relating to the redemption of Offers.

2.Third-Party Tools. BDSC may provide tools through the Service that enable you to export information, including User Content, to third-party services (including, without limitation, social networks such as Facebook, Twitter and Instagram). By using these tools, you agree that we may transfer such information to the applicable third-party service. SUCH THIRD-PARTY SERVICES ARE NOT UNDER OUR CONTROL, AND WE ARE NOT RESPONSIBLE FOR THEIR USE OF YOUR EXPORTED INFORMATION. The Service may also contain links to third-party websites. Such linked websites are not under our control, and we are not responsible for their content.

  1. Termination of Use; Discontinuation and Modification of the Service. If you violate any provision of these Terms, your permission to use the Service will terminate automatically. Additionally, BDSC, in its sole discretion may delete your user profile on the Service or suspend or terminate your access to the Service at any time, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including, without limitation, by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. We may offer functionality that will allow you to delete your profile at any time by going to the app menu and following the steps necessary to delete your profile. Alternatively, if such functionality is not available, you may contact customer service at support@bdsmobiletech.com.
  2. Privacy Policy; Additional Terms
    1. Privacy Policy. Please read the BDSC Privacy Policy carefully for information relating to our collection, use, storage and disclosure of your personal information. The BDSC Privacy Policy is hereby incorporated by reference into, and made a part of, these terms.
    2. Additional Terms. Your use of the Service is subject to any and all additional terms, policies, rules or guidelines applicable to the Service or certain features of the Service that we may post on or link to on the Service (the “Additional Terms”), such as end-user license agreements for any downloadable applications that we may offer, or rules applicable to particular features or content on the Service. All such Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.
  3. Ownership; Proprietary Rights. The Service is owned and operated by BDSC. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services and all other elements of the Service (the “Materials”) provided by BDSC are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Service are the property of BDSC or our third-party licensors. Except as expressly authorized by BDSC, you may not make use of the Materials. BDSC reserves all rights to the Materials not granted expressly in these Terms.
  4. Indemnity. You agree that you will be responsible for your use of the Service, and you agree to defend, indemnify and hold harmless BDSC and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “BDSC Entities”) from and against any and all claims, liabilities, damages, losses and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Service; (ii) your violation of these Terms or any representation, warranty or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party (including, without limitation, other users). We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.
  5. Disclaimers; No Warranties
  6. THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE BDSC ENTITIES SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING, BUT NOT LIMITED TO (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT OR NON-INFRINGEMENT; AND (ii) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. THE BDSC ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PART THEREOF, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
    NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE BDSC ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALINGS WITH MERCHANTS AND OTHER SERVICE USERS, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE AND USE, ACCESS, DOWNLOAD OR OTHERWISE OBTAIN MATERIALS OR CONTENT (INCLUDING, WITHOUT LIMITATION, COUPONS) THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICE) OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF SUCH MATERIALS OR CONTENT.
    SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
  7. Limitation of Liability
  8. IN NO EVENT WILL THE BDSC ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE, OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE BDSC ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
    YOU AGREE THAT THE AGGREGATE LIABILITY OF THE BDSC ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICE (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE), OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT OR OTHERWISE, IS LIMITED TO THE GREATER OF (i) THE AMOUNTS YOU HAVE PAID TO BDSC FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM OR (ii) $100.
    THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES OR LOSSES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES MADE AVAILABLE TO YOU BY THIRD PARTIES OTHER THAN BDSC (INCLUDING PRODUCTS AND SERVICES FOR WHICH A COUPON WAS MADE AVAILABLE TO YOU THROUGH THE SERVICE).
    SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
    EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 13 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
  9. Governing Law. These Terms shall be governed by the laws of the State of Wisconsin without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and BDSC agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Dane County, Wisconsin for the purpose of litigating all such disputes. We operate the Service from our offices in Wisconsin, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
  10. General. These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference herein, constitute the entire and exclusive understanding and agreement between you and BDSC regarding your use of and access to the Service, and except as expressly permitted above may be amended only by a written agreement signed by authorized representatives of all parties to these Terms. You may not assign or transfer these Terms or your rights hereunder, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice. The failure to require performance of any provision will not affect our right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms or any provision of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and shall not have any impact on the interpretation of particular provisions. In the event that any part of these Terms is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remaining parts will remain in full force and effect. Upon termination of these Terms, any provision that by its nature or express terms should survive will survive such termination or expiration, including, but not limited to, Sections 1, 2, 3, 4.2, 4.3, 4.4, 5, 10 through 16 and 17 and the Privacy Policy.
  11. Dispute Resolution and Arbitration
    1. Generally. In the interest of resolving disputes between you and BDSC in the most expedient and cost effective manner, you and BDSC agree that any and all disputes arising in connection with these Terms shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND BDSC ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
    2. Exceptions. Notwithstanding subsection 16.1, BDSC and you agree that nothing herein will be deemed to waive, preclude or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
    3. Arbitrator. Any arbitration between you and BDSC will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting BDSC.
    4. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). BDSC’s address for Notice is: Bad Donkey Social Company, 411 W. Main Street, Madison, WI 53703. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within thirty (30) days after the Notice is received, you or BDSC may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or BDSC shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in your favor, BDSC shall pay you (i) the amount awarded by the arbitrator, if any, (ii) the last written settlement amount offered by BDSC in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.00, whichever is greater.
    5. Fees. In the event that you commence arbitration in accordance with these Terms, BDSC will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Madison, WI provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse BDSC for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits.
    6. No Class Actions. YOU AND BDSC AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and BDSC agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
    7. Modifications. In the event that BDSC makes any future change to this arbitration provision (other than a change to BDSC’s address for Notice), you may reject any such change by sending us written notice within thirty (30) days of the change to BDSC’s address for Notice, in which case your account with BDSC shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
    8. Enforceability. If Subsection 16.6 is found to be unenforceable or if the entirety of this Section 16 is found to be unenforceable, then the entirety of this Section 16 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 14 shall govern any action arising out of or related to these Terms.
  12. Modification of the Terms. BDSC reserves the right to update or modify the Terms at any time without prior notice, and such changes will be effective immediately upon being posted through the Service, except as set forth below. These Terms will identify the date of last update. Your use of the Service following any such change constitutes your agreement to be bound by the modified Terms of Use. In the case of material changes to the Terms, BDSC will make reasonable efforts to notify you of the change, such as through sending an email to any address you may have used to register for an account, through a pop-up window on the Service, or other similar mechanism. Material changes to these Terms will be effective upon the earlier of: (i) your first use of the Service with actual notice of such change, or (ii) thirty (30) days from posting of such change. Disputes arising under these Terms will be resolved in accordance with the version of the Terms in place at the time the dispute arose. We encourage you to review these Terms frequently to stay informed of the latest modifications. Without limiting the generality of the foregoing, no modification to the terms of our agreement to arbitrate disputes will be effective without your express consent, provided that if we propose a change to the terms of our agreement to arbitrate and you do not consent to the change, you must terminate your use of the Service.
  13. Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about your choices regarding our electronic communications practices. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
  14. Contact Information. The services hereunder are offered by Bad Donkey Social Company, located at 411 W. Main Street, Madison, WI 53703. You may contact us by sending correspondence to the foregoing address or by emailing us at support@bdsmobiletech.com. If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for these Terms.

©2011-2017 BDSC. All Rights Reserved. Patent Pending.