Last updated: December 9, 2016
IMPORTANT – PLEASE READ CAREFULLY – THESE TERMS CREATE A LEGALLY BINDING AGREEMENT WHICH GOVERNS YOUR USE OF THE SERVICE. BY CREATING AN ACCOUNT (AS DEFINED BELOW) OR BY ACCESSING OR USING THE SERVICE OR ANY CONTENT OFFERED THROUGH THE WEBSITE, YOU ACCEPT AND AGREE TO BE BOUND, WITHOUT LIMITATION OR QUALIFICATION, BY THESE TERMS. IF YOU DO NOT ACCEPT ANY OF THESE TERMS, YOU ARE PROHIBITED FROM USING THE SERVICE. IF YOU WERE USING ANOTHER VERSION OF THE SERVICE OFFERED PRIOR TO YOUR ACCEPTANCE OF THESE TERMS, THESE TERMS ALSO APPLY TO YOUR PAST USE OF THAT OTHER VERSION OF THE SERVICE.
1. Right, License and Restrictions.
1.1. License Grant For Service. Subject to your agreement to, and continuing compliance with, these Terms and any other relevant Red Butler policies, Red Butler grants you a non-exclusive, non-transferable, revocable limited right and license to access and use the Service. As used in these Terms, “Other User” means another licensee or user of the Service; “All Users” means you and all Other Users.
1.2. Minimum Age Requirement. An individual must be at least 18 years of age to use the Service.
1.3. Accounts and Access. You must register for an account through the Service (an “Account”). You may only register for one Account. An “Account Holder” means the person in whose name an Account is registered.
1.4. Use of the Service: The following restrictions apply to the use of the Service:
(a) You accept full responsibility for any unauthorized use of the Service by parties not authorized to use any of your Accounts. Additionally, you are responsible for any use of your credit card or other payment instrument (e.g. PayPal) incurred by parties using your Account;
(b) You shall not create an Account using a false identity or false information, or on behalf of someone other than yourself;
(c) Without first obtaining the written permission of Red Butler, you shall not register for an Account or in any way use the Service if Red Butler has removed, suspended, or otherwise terminated any Account registered by you, or on behalf of you or if Red Butler has notified you that you may not use the Service;
(d) You shall not use your Account to advertise, solicit or transmit any commercial advertisements, including chain letters, junk email or repetitive messages to anyone;
(e) You shall not use the Service to engage in any illegal conduct;
(f) You shall not rent, lease, sell, trade, gift, bequeath or otherwise transfer your Account or your Plan to anyone without Red Butler’s written consent;
(g) You shall not reproduce, distribute or publicly display any content you access through the Service unless such content is clearly marked as “public” and you have been given the right to view such content; and
(h) You shall not do anything with any content you access through the Service that has been marked with restrictions or other instructions that is counter to such restrictions or other instructions.
1.5. Account Information and Management.
(b) Login Information. During the Account creation process, you will be required to select a username and password (“Login Information”). The following rules govern the security of your Login Information:
(i) You shall not share the Account or the Login Information, nor let anyone else access your Account or do anything else that might jeopardize the security of your Account;
(ii) In the event you become aware of, or reasonably suspect, any breach of security, including without limitation any loss, theft or unauthorized disclosure of the Login Information, you must immediately notify Red Butler and change the password on your Account;
(iii) You are solely responsible for maintaining the confidentiality of the Login Information and you will be responsible for all uses of the Login Information, including purchases, whether or not authorized by you; and
(iv) You are responsible for anything that happens through your Account.
(c) Reclaiming Usernames. Red Butler reserves the right to remove or reclaim any username at any time and for any reason or no reason, including but not limited to claims by a third party that a username violates the third party’s rights.
1.6. Grant of Authority. You hereby grant Red Butler and its employees the authority to speak and act on your behalf as required to fulfill your requests and provide the Service, including but not limited to setting appointments, making purchases, making reservations, and entering your personal and Account information to create profiles (e.g. for Amazon.com). You hereby authorize Red Butler to use your Account Information and Posted Content (as defined below) as necessary to fulfill your requests, and acknowledge that any information you add to your Account, including in your profile, to your Red Butler Wallet, or in your requests, may be use by Red Butler to fulfill your requests.
1.7. Account Limitations and Prohibitions.
(a) General Effects of Violations. Any use of the Service in violation of these Terms is strictly prohibited, can result in the immediate revocation of your limited license granted by Section 1, and may subject you to liability for violations of law. Red Butler is permitted to list or restrict use of the Service for anyone who Red Butler reasonably believes has or will violate any applicable law when using the Service.
(b) Activity Prohibitions. You agree that you will not, under any circumstances:
(i) Engage in any act that Red Butler deems to be in conflict with the spirit or intent of the Service, including but not limited to circumventing or manipulating these Terms;
(ii) Use the Service in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation by anyone;
(iii) Modify or cause to be modified any files or content that are used to offer the Service, without the express prior written consent of Red Butler;
(iv) Disrupt, overburden, or aid or assist in the disruption or overburdening of (1) any computer or server used to offer or support the Service (each a “Server”) or (2) the use or enjoyment of the Service by any other person;
(v) Institute, assist or become involved in any type of attack, including without limitation distribution of a virus, denial of service attacks upon the Service, or other attempts to disrupt the Service or any other person’s use or enjoyment of the Service;
(vi) Gain, or attempt to gain, unauthorized access to the Service, Accounts, Servers or networks connected to the Service by any means (including, but not limited to, circumventing or modifying, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of the Service);
(vii) Post any information that is abusive, threatening, obscene, defamatory, libelous or racially, sexually, religiously or otherwise objectionable or offensive;
(viii) Post any information that contains nudity, excessive violence or offensive subject matter or that contains a link to such content;
(ix) Harass, abuse, harm, or advocate or incite harassment, abuse or harm of another person or group of persons, including Red Butler employees or customer service representatives;
(x) Post, distribute or make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity or other right of any person or entity or impersonates any other person;
(xi) Transmit unauthorized communications through the Service, including junk mail, chain letters, spam and any materials that promote malware, spyware and downloadable items;
(xii) Interfere or attempt to interfere with the proper functioning of the Service or connect to or use the Service in any way not expressly permitted by these Terms;
(xiii) Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a Server or the Service, whether through the use of a network analyzer, packet sniffer or other device;
(xiv) Make any automated use of the Service or take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure, as we determine in our sole discretion;
(xv) Bypass any robot exclusion headers or other measures we take to restrict access to the Service or use any software, technology or device to send content or messages, scrape, spider or crawl the Service, or harvest or manipulate data from, through, or relating to the Service;
(xvi) Use, facilitate, create or maintain any unauthorized connection to the Service, including without limitation (1) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the Service or (2) any connection using programs, tools or software not expressly approved in writing by Red Butler ;
(xvii) Copy, modify or distribute rights or content from any Red Butler site, including but not limited to content that contains or is protected by Red Butler’s copyrights or trademarks or use any method to copy or distribute the content of the Service, except as specifically allowed in these Terms;
(xviii) Solicit or attempt to solicit personal information from Other Users, other than from Users with whom you have an existing business relationship and only in connection with a bona fide business purpose for which the Service is intended;
(xix) Forward calls from Red Butler to your friends, family, coworkers and any third party who is not listed under your Account;
(xx) Exploit the Services in any way or form;
(xxi) Collect, harvest or post anyone’s private information, including personally identifiable information (whether in text, image, video, or other form), identification documents or financial information through the Service; or
(xxii) Upload or transmit (or attempt to upload or to transmit), without Red Butler’s express written permission, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation clear graphics interchange formats (“gifs”), 1x1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).
1.8. Suspension and Termination of Account, Plan and Service:
(a) FAILURE TO COMPLY. WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY, WITH OR WITHOUT NOTICE TO YOU, LIMIT, SUSPEND, TERMINATE, MODIFY OR DELETE YOUR ACCOUNT, YOUR PLAN, YOUR ACCESS TO THE SERVICE OR PORTIONS THEREOF IF, IN OUR SOLE DISCRETION, YOU FAIL TO COMPLY WITH ANY OF THESE TERMS OR YOUR ACCOUNT IS USED FOR ACTUAL OR SUSPECTED ILLEGAL ACTIVITY OR IMPROPER USE OF THE SERVICE. RED BUTLER SHALL BE UNDER NO OBLIGATION TO COMPENSATE YOU FOR ANY LOSSES OR ADVERSE RESULTS THAT ARE DUE TO THE SUSPENSION, TERMINATION, MODIFICATION, OR DELETION OF YOUR OR ANY ACCOUNT.
(b) IP INFRINGEMENT.
(i) WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE THE SERVICE AND ACCOUNTS OR PORTIONS THEREOF, PROHIBIT ACCESS TO OUR SITES AND THEIR CONTENT, SERVICES AND TOOLS, DELAY OR REMOVE ANY CONTENT AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE SERVICE IF WE BELIEVE THAT YOU ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES.
(ii) REPEAT INFRINGERS. IN APPROPRIATE CIRCUMSTANCES IT IS OUR POLICY TO SUSPEND OR TERMINATE ACCOUNTS OF USERS WHO ARE REPEAT INFRINGERS OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
(c) Right to Cease Service. Red Butler reserves the right to stop offering and/or supporting the Service or part of the Service at any time, at which Point the license granted hereunder to you to use the Service or a part thereof will automatically terminate. Red Butler shall not be required to provide refunds, benefits or other compensation to users in connection with such cessation of the Service or any part thereof.
(d) Termination of Account. Termination of your Account can include disabling your access to the Service or any part thereof, including disabling access to any content that you or Other Users have submitted. You agree that if your Account is terminated, Red Butler will not be obligated to preserve, provide you access to, or provide copies of any content submitted to the Service relating to your Account, whether by you or an Other User.
1.9. Intellectual Property Ownership in the Service. The Service, and all of its components and contents, (including without limitation any computer code, template content, pre-populated content, concepts, artwork, animations, sounds, musical compositions, audio-visual effects and text contained within) is owned by Red Butler or its licensors, and all of which material is protected by United States and international patent, copyright, trademark, trade secret, and other intellectual property laws.
2. Posted Content.
2.1. Posted Content: “Posted Content” means any communications, videos, images, sounds, and all the material, data, and information that you upload, post, publish or transmit through the Service, including without limitation any comments you may make about content uploaded or transmitted by Other Users. We may provide you with templates, pre-populated communications, or other content through the Service (“Template Content”) that you may distribute, use or modify as part of using our Service to communicate with Other Users in a manner consistent with the intended use of the Service. You acknowledge that your use of any Template Content does not relieve you of any responsibilities or obligations under this Agreement. By transmitting or submitting any Posted Content while using the Service, you affirm, represent and warrant that such transmission or submission: (a) is accurate and not confidential; (b) is not in violation of any applicable law, contractual restrictions or other third party rights, and that you have permission from any third party whose personal information or intellectual property is comprised in the Posted Content; (c) will not, when Red Butler exercises rights in Posted Content granted under Terms, result in any infringement of the intellectual property rights of any third party or violate or misappropriate any rights of publicity or privacy for any third party; and (d) is free of viruses, adware, spyware, worms or other malicious code. You further represent and warrant that you have all rights necessary to transmit Posted Content to Red Butler and to grant the rights in Posted Content granted to Red Butler under these Terms.
2.2. Licenses to Posted Content: You hereby grant Red Butler a perpetual and irrevocable (other than as provided below), worldwide, fully paid-up and royalty free, non-exclusive, assignable, unlimited license and right to copy, reproduce, fix, adapt, modify, improve, translate, reformat, create derivative works of, manufacture, introduce into circulation, publish, distribute, sublicense, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice, in any way now known or in the future discovered, your Posted Content as well as all modified and derivative works thereof. Red Butler will only exercise the rights granted in this Section 2.2 to offer or to facilitate the offering of Services. To the extent permitted by applicable laws, you hereby waive any moral rights or any of your rights of publicity or privacy you may have in any Posted Content. Red Butler will cease any further public display or distribution of any Posted Content if you use the features of the Service that permit you to indicate that certain Posted Content is to no longer be displayed or distributed to Other Users except Red Butler retains the right to display or distribute any Posted Content as necessary for Red Butler to fulfill its legal duties or in connection with bringing or defending any legal claims or actions that may arise now or in the future.
2.3. Content Screening.
(a) Consent to Monitoring. By entering into these Terms, you hereby provide your irrevocable consent to our monitoring and recording of your use of the Service. You acknowledge and agree that you have no expectation of privacy vis a vis us or any of our service providers who provide services to us or you as part of the Service concerning the transmission of any information, including without limitation chat, text or voice communications.
(b) Options Regarding Posted Content. Red Butler may reject, refuse to post or delete any or all Posted Content for any or no reason, including, but not limited to the reason that, in the sole judgment of Red Butler, the contents or posting or other use of such Posted Content in connection with the Service violates these Terms.
2.4. User Interactions and Legal Problems; Releases. You hereby release us, and our officers, directors, agents, subsidiaries, joint ventures and employees, from any and all claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute that arises between you and one or more Other Users. If you are a California resident, you acknowledge that you are aware of, and hereby waive your rights under the provisions of California Civil Code Section 1542, which provides: “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.”
3. Use of Services.
3.1. Red Butler Administrators (“RBAs”). RBAs are available during the Hours of Operation (as defined below) to provide an array of professional services including but not limited to making calls, online research, travel arrangements, document creation, proof reading and calendar management. These services may only be performed virtually, via telephone, email or text; no video chat, in-person meetings, mailings or errands of any kind are provided. RBAs are required to only speak English and it is not guaranteed that you will speak with or deal with the same RBA each time you place a request. RBAs will make reasonable efforts to provide you with the information or services required to fulfill your requests. The following services are not provided:
(a) anything requiring a professional license to render services such as, but not limited to, an attorney, CPA, financial advisor;
(b) anything requiring unique media or programming skills e.g. web developer, architecture, user interface, Photoshop;
(c) impersonation of you or anyone else or acting as an employee of you or your company;
(d) creation or development of any tasks requiring professional skills such as a business plan;
(e) any errand type services or work requiring physical tasks such as writing letters by hand etc.;
(f) any illegal purchase, representation of you in any unlawful or illegal way, or aiding you to commit an unlawful or illegal act;
(g) the aiding in any violation of law; and
(h) inbox management and recurring scheduling support, unless your Plan includes it (this service may be purchased separately).
3.2. Direct Account Managers (“DAMs”). Upon signing up for a Plan, you are assigned a DAM that is your direct contact for request status, preferences, accountability, and quality assurance and who is responsible for leveraging the entire RBA database to fulfill your requests. The DAM may also work on your requests but will primarily assign requests to existing RBAs in order to maximize turnaround time and skillsets and to avoid bottlenecks. At any time during the Hours of Operation (as defined below), you are free to email, call or chat with your DAM to ensure that your requests and needs are being seen to and completed.
3.3. Hours of Operation. You can submit requests 24 hours a day, 7 days a week, 365 a year by email to email@example.com, through the Website, or by telephone to 888-288-5372. However, RBAs are only available to work on your requests Monday through Friday between 6am and 6pm Pacific Standard Time, and DAMs are only Monday through Friday between 9am and 6pm Pacific Standard Time or Monday through Friday between 9am and 6pm Eastern Standard Time should you request an east coast based representative (collectively, the “Hours of Operation”).
3.4. Monthly Plan. Red Butler bills for Services in the form of an automatic monthly renewing service fee for the level of Service ordered (each a “Plan”). Upon placing your order for a Plan, you are charged immediately for the first month of your Plan and your Plan begins. Thereafter, your Plan will automatically renew each month on the monthly anniversary of your original order date rather than at the beginning or end of each month. All services are available with each Plan with the exception of inbox calendar management, multi user sharing and access to a DAM, which are available with the Red15, Red25 and Red50 Plans. Each Plan includes a number of Users. Such users are eligible to submit requests. Time to fulfill those requests will be deducted rom the primary account holder. Additional users may also have access to inbox calendaring management services. In such case, they may only utilize the primary account holder’s calendar and single email address t interface with any and all services. Should the primary account holder seek to add additional users, additional calendars or additional email addresses, a fee of $99 per month for each will be assessed.
3.5. Payment Terms. You will be notified of the monthly renewal by way of a paid invoice posted in your Account. You must keep a credit card on file with Red Butler that will be charged each month for the fees for your Plan. You agree to provide accurate billing information for such credit card and to notify Red Butler prior to the next month of Service if you would like to change the credit card on file with Red Butler or if the billing information for the credit card on file changes. By providing Red Butler with your credit card information, you agree to pay any and all fees and applicable taxes incurred by you or anyone using an Account registered to you. You further to agree to allow Red Butler to charge your credit card each month without contacting you in any way, unless you notify us to cancel your account within the allotted time stated below.
3.6. Points. Each twenty 20 minutes of time is a “Point.” A Point is broken down into increments of 5 minutes and deducted in 5 minute increments. By way of example, something take takes 10 minutes of time would result in a half point deduction, - .5. Points are used to monitor the usage activity of your Plan. Each Plan has its own number of Points based upon the number of hours that are included with the Plan. The amount of Points for each Plan may change at any time; however you will be notified at least 1 month prior to any change. At the start of each renewal date, we will replenish your account with your total number of Points based upon your Plan. Unused Points for each cycle do not roll over to any future months. In some cases, points are placed on hold while a request is being worked on. The purpose of this is to ensure that there is enough time to complete your existing requests before you submit new requests. Furthermore, in the event your account renews while a request has not yet been completed, held points will automatically transfer to your new billing cycle, thus ensuring that points were deducted from the correct period. Should you feel that too many Points were deducted for any request, please send an email setting out your concern to your DAM or to firstname.lastname@example.org, and we will work with you to verify the appropriate number of Points used. If you have a request that requires more Points than you currently have in your Plan, you will be advised with options to purchase additional Points at a surcharge, or to perform an upgrade on your account that will take effect immediately.
3.7. Upgrades/Renewals. You may upgrade your Plan at any time, whereas downgrades occur upon your next renewal. For example, upgrades will take place immediately, at which time you will be charged for the full amount of the new pricing Plan, minus the pro-rated value of your current pricing Plan based upon the number of days remaining on your plan until the next renewal. Accordingly, you will receive a new 30 day term and new total Points associated to your new plan type. For example, if you have a Red5 Plan and you decide to upgrade to a Red15 Plan half-way through your 30 day cycle, you will be charged the Red15 Plan pricing amount minus 15 days left of prorated remaining value of your Red5 Plan ($175/2 = $87.50). You will then receive your new total amount of Points on the Red15 Plan and your Plan renewal date will be adjusted to begin 30 days from the date of the upgrade. Downgrades will take place at the end of your current plan cycle, at which time your Plan will renew at the lower Plan price and you will accordingly receive Points associated with the lower Plan that you have chosen. For example, if you have a Red15 Plan and request a downgrade to a Red5 Plan, you will remain on the Red15 Plan until the current Plan month is complete, allowing you to use any remaining Points in the Red15 Plan, until your account is set to renew, at which Point you will be charged the Red5 Plan price and receive 5 Points of Service.
3.8. Cancellation. To avoid being charged for an additional month, you must cancel your Red Butler Plan at least 24 hours prior to your renewal date by submitting the cancellation form found at http://redbutler.com/cancel during the DAM Hours of Operation. Attempts to cancel outside of the DAM Hours of Operation, or to cancel by telephone, email, submission of a request, or any method except use of the cancelation form will not be valid. Upon receiving your cancellation form, Red Butler will terminate your Plan and your Account and delete your entire record (which includes request history, wallet details, profile information and more). Please note that any unused time in your Account at the time of cancellation will be voided. Should an Account Holder or Admin on a team Account request a cancellation, all Users in the Account will also have their Accounts set to inactive status.
3.9. Refunds. YOU ACKNOWLEDGE THAT RED BUTLER IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED SERVICES WHEN YOUR ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY, OR FOR YOUR FAILURE TO CORRECTLY CANCEL YOUR ACCOUNT PRIOR TO THE RENEWAL DATE. Points may be refunded if there was a miscalculation or error made by Red Butler. In that case, please contact your DAM or customer service at email@example.com. There will also be no refunds for purchases made on your behalf and with your approval. Should you ask and RBA or DAM to make a purchase on your behalf, we will not be held accountable should the product or service you are purchasing not meet your expectations. You will be required to review any and all refund and exchange policies with the service providers you intend for us to make purchases on your behalf, prior to asking that we make any purchases for you. We will not be held accountable, liable or responsible in any way for any goods or services we purchase for you on your behalf that are lost during shipping, tickets arriving late, goods damaged in the mail, etc.
3.10. Travel Arrangements. Travel arrangements are also offered as part of our Services. Red Butler will make reasonable attempts to find you the best deal for air travel, hotel accommodations, limo services, etc. We will not be responsible in any way and do not represent the service quality of any of these service providers. As the client, you are accountable for the final selection of your destination or service provider and prior to any final bookings, your written approval (email, text, messaging or otherwise) will always be requested. If you are not pleased with any services referred to by our team, please contact the service provider rather than Red Butler. Once we make a purchase or place an order for flights, hotels, or any other travel related services, we will not be held responsible for any refunds or disputes. It will be solely your responsibility to inquire upon any cancellation rules prior to booking and dispute any concerns you have directly with the service provider. Red Butler will not refund, credit or be held responsible whatsoever for any travel related purchases, unless there has been unequivocal and gross negligence on the part of your RBA or DAM, in which case you should refer your concerns to our Director of Operations. Red Butler is under no circumstances responsible if your flight is cancelled, including but not limited to the payment of cancellation penalties. All travel details will be provided by RBAs to the best of their ability; however it is the duty of the client to financially cover the purchase of such travel.
3.11. Accessing Privileges. Active Red Butler clients are entitled to activate an array of perks, discounts and privileges at hundreds of restaurants, hotels and businesses around the globe (each a “Privilege”). You must submit a request to Red Butler in order to activate a Privilege for you. Submitting a request to access a Privilege will not result in a deduction of a Point from your Account. Privileges are subject to change at any time and may also be subject to additional rules. You may view Red Butler's list of exclusive Privileges by logging into your Account.
3.12. Gifts. Red Butler gift Plans are available with Red5, 15, 25 and 50 Plans for periods of up to 1, 2 or 3 months. All gifts include a hand written note, activation code and black metal card. Please allow up to 7 days for delivery of gift Plans. At times Red Butler promotions include a buy 1 get 1 offer. Complimentary gift Plans will be matched to the original gift Plan type and length and receive a separate activation code. Therefore, each gift Plan must be redeemed by new and exclusive Users. For example, you cannot purchase 1 gift Plan for yourself and expect to use the second as well for yourself. All gift Plans must be redeemed within 12 months from the date of purchase to receive the full value. There are no refunds for gift Plan purchases.
4. Third Party Advertising.
4.2. Links to Third Party Sites and Dealings with Advertisers. Red Butler may provide links on the Service to third party websites or vendors who may invite you to participate in a promotional offer in return for receiving a benefit. Any charges or obligations you incur in your dealings with these third parties are your responsibility. Red Butler makes no representation or warranty regarding any content, goods, or services provided by any third party even if linked from our Service, and we will not be liable for any claim relating to any third party content, goods, or services. The linked sites are not under the control of Red Butler and may collect data or solicit personal information from you. Red Butler is not responsible for their content, business practices or privacy policies, or for the collection, use or disclosure of any information those sites may collect. Further, the inclusion of any link does not imply endorsement by Red Butler of these linked sites.
5. Copyright Notices; Complaints.
It is Red Butler’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (the “DMCA”). For more information, please go to Red Butler’s “Copyright Page” to review our DMCA procedures. Red Butler reserves the right to terminate without notice any user’s access to the Service if that user is determined by Red Butler to be a “repeat infringer.” In addition, Red Butler accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
6. Updates to the Service.
You understand that the Service undergoes frequent changes. Red Butler may require that you accept or only use updates to the Service in order to continue using the Service. You acknowledge and agree that Red Butler may update the Service without notifying you.
7. Disclaimer; Limitations; Waivers on Liability; Indemnification.
7.1. Disclaimer of Warranties.
(a) SERVICE PROVIDED “AS IS”. YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(b) NO WARRANTY OF ERROR-FREE OPERATION. WITHOUT LIMITING THE FOREGOING, NEITHER RED BUTLER NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, THIRD-PARTY SERVICE PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “RED BUTLER PARTIES”) WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. RED BUTLER PARTIES WILL NOT BE RESPONSIBLE FOR INCORRECT OR INACCURATE INFORMATION PROVIDED IN RESPONSE TO YOUR REQUESTS.
(c) NO WARRANTY REGARDING ACCESS TO ACCOUNTS AND CONTENT. RED BUTLER DOES NOT WARRANT THAT ALL CONTENT OR INFORMATION POSTED BY AN ACCOUNT HOLDER WILL REMAIN AVAILABLE AT ALL TIMES OR WILL NEVER BE DELETED, CORRUPTED OR OTHERWISE UNAVAILABLE. RED BUTLER DOES NOT WARRANT THAT THE SERVICE, ACCOUNT HOLDER INFORMATION OR ANY INFORMATION POSTED BY AN ACCOUNT HOLDER WILL BE KEPT FROM ANY PARTICULAR INDIVIDUAL OR ENTITY WHO EITHER HACKS OR ENGAGES IN UNAUTHORIZED ACCESS TO SUCH CONTENT OR INFORMATION OR IS MISTAKENLY GRANTED ACCESS BY RED BUTLER OR THROUGH THE SERVICE.
7.2. Limitations; Waivers of Liability.
(a) DISCLAIMER OF INDIRECT DAMAGES. YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THE RED BUTLER PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE.
(b) NOT RESPONSIBLE FOR POSTED CONTENT. YOU SPECIFICALLY ACKNOWLEDGE THAT THE RED BUTLER PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE RED BUTLER PARTIES LIABLE, FOR THEIR RECEIPT, STORAGE, AND DISCLOSURE TO THIRD PARTIES OF POSTED CONTENT WHICH IS OF A SENSITIVE OR CONFIDENTIAL NATURE, INCLUDING IF SUCH POSTED CONTENT IS EXPOSED OR DISCLOSED THROUGH BREACH OF RED BUTLER’S SYSTEMS BY A THIRD PARTY, AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
(c) NOT RESPONSIBLE FOR THIRD PARTY CONDUCT AND PRODUCTS. YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE RED BUTLER PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE RED BUTLER PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE SERVICE, OPERATORS OF EXTERNAL SITES AND MERCHANTS WHOSE PRODUCTS AND SERVICES ARE PURCHASED ON YOUR BEHALF AS PART OF THE SERVICE, AND THAT THE RISK OF THE SERVICE AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. RED BUTLER SHALL NOT BE RESPONSIBLE FOR ANY RETURNS, REFUNDS, OR GUARANTEES ON BEHALF OF THE PRODUCTS OR SERVICES YOU ARE PURCHASING OR THAT ARE PURCHASED ON YOUR BEHALF AS PART OF THE SERVICE.
(d) MONETARY LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL THE RED BUTLER PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID RED BUTLER IN THE ONE HUNDRED EIGHTY (180) CALENDAR DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM.
(e) FAILURE TO PAY. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID RED BUTLER ANY AMOUNTS IN THE ONE HUNDRED EIGHTY (180) CALENDAR DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH RED BUTLER IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT.
(f) DISCLAIMER MAY NOT BE APPLICABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THE SECTION MAY NOT APPLY TO YOU.
7.3. Indemnification. You agree to defend, indemnify, save, and hold the Red Butler Parties harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Service, any violation by you of these Terms, or any breach of the representations, warranties and covenants made by you herein. Red Butler reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Red Butler and you agree to cooperate with Red Butler’s defense of these claims. Red Butler will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. You agree that the provisions in this Section will survive any termination of Terms, your Account or of the Service.
8. Dispute Resolution.
8.1. General. If a dispute arises between you and Red Butler, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Red Butler agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or our services (a “Claim”) in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution by going to Customer Support. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation. Other than those matters listed in Section 8.2, you and Red Butler agree to seek resolution of the dispute only through arbitration of that dispute in accordance with the terms of this Section 8, and not litigate any dispute in court. Arbitration means that the dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
8.2. Exclusions from Arbitration. YOU AND RED BUTLER AGREE THAT ANY CLAIM FILED BY YOU OR BY RED BUTLER IN SMALL CLAIMS COURT OR BY RED BUTLER RELATED TO PROTECTION OF RED BUTLER’S OR ANY RED BUTLER LICENSOR’S INTELLECTUAL PROPERTY ARE NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION 8.
8.3. RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER IN THIS SECTION 8, YOU MUST NOTIFY RED BUTLER IN WRITING WITHIN THIRTY (30) DAYS OF THE DATE THAT YOU FIRST ACCEPT THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO RED BUTLER TERMS ADMINISTRATOR, AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, (3) YOUR USERNAME, AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH RED BUTLER THROUGH ARBITRATION.
8.4. Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND RED BUTLER SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.
8.5. Initiation of Arbitration Proceeding; Selection of Arbitrator. If you or Red Butler elect to resolve your dispute through arbitration, the party initiating the arbitration proceeding must initiate it with the American Arbitration Association (“AAA”). The terms of this Section 8 will govern in the event they conflict with the arbitration rules identified below.
8.6. Arbitration Procedures. Because the software and/or service provided to you by Red Butler concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, applicable federal or state law may also apply to the substance of any disputes. For claims of less than $75,000, the AAA’s Consumer Arbitration Rules shall apply; for claims over $75,000, the AAA’s Commercial Arbitration Rules and relevant fee schedules for non-class action proceedings shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Further, if your claims do not exceed $75,000 and you provided notice to, and negotiated in good faith with, Red Butler as described above, and if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys’ fees and costs as determined by the arbitrator, in addition to any rights to recover the same under controlling state or federal law afforded to Red Butler or you. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be binding and final, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
8.7. Location of Arbitration. You or Red Butler may initiate arbitration in either San Francisco, California or the county in which you reside. If you initiate arbitration in the county of your residence, Red Butler may transfer the arbitration to San Francisco, California provided that Red Butler agrees to pay any additional fees or costs you incur as a result of the change in location, as determined by the arbitrator.
8.8. Severability. If any clause within this Section 8 (other than the Class Action Waiver clause of Section 8.4) is found to be illegal or unenforceable, that clause will be severed from this Section 8 and the remainder of this Section 8 will be given full force and effect. If the Class Action Waiver (Section 8.4) clause is found to be illegal or unenforceable, this entire Section 8, except for this Section 8.8, will be unenforceable and the dispute will be decided by a court and IN THAT INSTANCE, YOU AND RED BUTLER EACH WAIVE AND AGREE TO WAIVE ANY RIGHT TO TRIAL BY JURY, TO THE EXTENT ALLOWED BY LAW.
8.9. Survival. This Section 8 shall survive any termination of the Terms.
9. General Provisions.
9.3. Assignment. Red Butler may assign any of its rights or delegate any of its obligations under these Terms, in whole or in part, to any person or entity at any time without your consent. You may not assign or delegate any rights or obligations under the Terms without the prior written consent of Red Butler; any purported assignment or delegation in violation of this Section 9.3 is void.
9.4. Supplemental Policies. Red Butler may publish additional policies related to specific services such as forums, contests, or loyalty programs. Your use, if any, of such services is subject to such specific policies and these Terms.
Red Butler Corp.
8306 Wilshire Blvd., Ste. 1070
Beverly hills, CA 90211
Attn: Chief Financial Officer
9.8. Equitable Remedies. You acknowledge that the rights granted and obligations made under these Terms to Red Butler are of a unique and irreplaceable nature, the loss of which shall irreparably harm Red Butler and which cannot be replaced by monetary damages alone, so that Red Butler shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Service, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Service or any content or other material used or displayed through the Service and agree to limit your claims to claims for monetary damages, limited by Section 7.2.
9.9. Force Majeure. Red Butler shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Red Butler, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Red Butler’s control, such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, shortages of transportation facilities, fuel, energy, labor or materials.