Terms of Service

Effective date: April 1, 2024

Bending Spoons Operations S.p.A. (“Bending Spoons,” “we,” “us,” “our”) is a company incorporated in Italy with registered office in Via Nino Bonnet 10, 20154 Milano, Italy. By installing or using the mobile application where these Terms of Service are posted (the “Application”) and other services provided through its website at https://getconfide.com/ (the “Website”) or other platforms (“Online Services” and together with the Application, the “Services”), Bending Spoons allows users to share and receive confidential and sensitive information across a variety of internet-enabled devices, including smart phones, tablets and computers (collectively, “Devices”) and protects such information from others by self-destructing after a pre-set period of time. Bending Spoons provides the Services to you subject to the following terms and conditions, which are referenced in the Privacy Policy, on the Website and within the Application as the “Terms of Service”. PLEASE READ THESE TERMS CAREFULLY BEFORE USING ANY OF OUR SERVICES.

This Terms of Service is organized as follows:

  1. Acceptance of Terms of service

  2. About our services

  3. License to use our services

  4. Restrictions on use

  5. Ownership

  6. Subscription services; automatic renewal

  7. New features; updates

  8. Changes to Terms of service

  9. Cancellation

  10. Account suspension; termination by Bending Spoons

  11. No warranties; disclaimers and limitations

  12. Indemnification

  13. Third party providers or partners

  14. External sites

  15. Intellectual property

  16. Copyright

  17. Governing law; equitable relief

  18. Dispute Resolution; Binding Individual Arbitration

  19. Miscellaneous

  20. Acceptable use policy

  21. Contact us

1. ACCEPTANCE OF TERMS OF SERVICE

By subscribing to or using any of the Services, you agree to be legally bound by the Terms of Service and the Privacy Policy.

Certain features of the Services may be subject to additional guidelines, terms or rules, which will be posted within our Application and/or on our Online Services. All such additional guidelines, terms or rules are incorporated by reference into the Terms of Service.

These Terms are a legal agreement between you and Bending Spoons. By using the Services, including installing and/or downloading any of our mobile applications (each an "App" and collectively the "Apps"), you: (a) agree to be bound by these Terms, (b) you represent and warrant that you have the right, authority and capacity to enter into these Terms; and (c) you own or control the mobile device by which you are accessing the Services. These Terms also apply to any App updates, supplements, and services made available by Bending Spoons that are not provided under a separate license or other agreement with us. If you do not agree to these Terms, do not install or use any App or Services. We may amend these Terms from time to time and will notify you of any update to the Terms that materially impact your use of the Services or your rights or obligations. Such notification may be through an in-app notification or website notice. Your continued use of the Services after we post any amendments to these Terms will signify your acceptance of such amendments. If you do not agree with any amendment, you must discontinue using the Services (including any Apps). If you have any questions or concerns regarding these Terms, please contact support at the email provided in Section 20 below. Do not use the Services until your questions and concerns have been answered to your satisfaction and you agree to abide by these Terms.

Notice to consumers. Depending on the laws of the jurisdiction where you live, you may have certain rights that are in addition to these Terms, and certain provisions of these Terms may be unenforceable as to you. To the extent that any term or condition of these Terms is unenforceable to you, the remainder of these Terms shall remain in full force and effect.

Use of the Services is subject to the Privacy Policy, which is hereby incorporated into these Terms by reference. These Terms also include any additional payment terms and other requirements set forth on the download or purchase page through which you purchase or download any Apps. The Apps may be available through marketplaces that distribute mobile applications and that may have additional terms, conditions and usage rules that govern your use of the Apps if you download or install the Apps through such marketplaces.

THESE TERMS CONTAIN A BINDING, INDIVIDUAL ARBITRATION REQUIREMENT AND CLASS-ACTION WAIVER, WHICH MEANS YOU AND BENDING SPOONS AGREE TO RESOLVE MOST DISPUTES IN BINDING, INDIVIDUAL ARBITRATION AND NOT BY MEANS OF A CLASS ARBITRATION, A CLASS ACTION, ANY OTHER KIND OF REPRESENTATIVE PROCEEDING, OR A JURY TRIAL. (SEE SECTION 18 (DISPUTE RESOLUTION; BINDING INDIVIDUAL ARBITRATION).) YOU MAY OPT OUT OF THE ARBITRATION REQUIREMENT WITHIN 30 DAYS FROM THE DATE WHEN THESE TERMS ARE NOTIFIED TO YOU; INSTRUCTIONS FOR OPTING OUT ARE IN SECTION 18 (DISPUTE RESOLUTION; BINDING INDIVIDUAL ARBITRATION) BELOW.

2. ABOUT OUR SERVICES

Minimum Age. The Services shall not be used by any person under the age of 13, and by using the Services you are warranting that you are 13 years of age (or 16 in the EEA) or older. Bending Spoons also strongly recommends that children ages 13 through 17 consult their parents or legal guardians before using the Services.

Account Registration. To create an account you must register for our Services. During the registration process, we will ask you to create an account, which includes a sign-in name (“Sign-In Name”), a password (“Password”), and perhaps additional information that will assist in authenticating your identity when you log-in in the future (“Unique Identifiers”). When creating your account, you must provide true, accurate, current, and complete information. Each Sign-In Name and corresponding Password can be used by only one user. You are solely responsible for the confidentiality and use of your Sign-In Name, Password, and Unique Identifiers, as well as for any use, misuse, or communications entered through the Services using one or more of them. We reserve the right to delete or change your Password, Sign-In Name, or Unique Identifier at any time and for any reason. Bending Spoons will not be liable for any loss or damage caused by any unauthorized use of your account.

Privacy of User Data. Please read the Privacy Policy to understand how we safeguard the information you provide when using our Services. For the purpose of operating our Services, you agree to our data practices as described in the Privacy Policy, as well as the transfer of your encrypted information and metadata to the U.S. and other countries where we have or use facilities, service providers or partners.

Software. In order to enable new features and enhanced functionality, you consent to downloading and installing updates to our Services.

3. LICENSE TO USE OUR SERVICES

Licenses. Bending Spoons grants you a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to access, download, install and/or use the Services for your lawful, personal and non-commercial use in accordance with the Terms of Service.

4. RESTRICTIONS ON USE

Permitted Use. You agree to use the Services only for purposes that are lawful and to comply with all applicable laws. If you are unable for any reason to comply with applicable law, you should stop using the Services immediately. You shall not use the Services for any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, profane, hateful, racially, ethnically, or otherwise objectionable purpose of any kind, including but not limited to any purpose that encourages conduct that would constitute a criminal offense, gives rise to civil liability, or otherwise violates any applicable local, state, national, or foreign law. In no event shall Bending Spoons be responsible to you or any third party for your failure to comply with local, state, federal or international laws.

Unauthorized Use. You may use the Services, provided that you shall:

  • Not use the Services for any illegal or unauthorized purpose, or beyond the scope of the Services’ expected use;

  • Not intentionally interfere with the operation of the Services or with any other person’s use of the Services;

  • Not intentionally gain unauthorized access to the Services;

  • Not merge the Services with other software;

  • Not resell, sell, lease, lend, redistribute, sublicense, assign or otherwise transfer the Services to any third party;

  • Not use the Services to compete against Bending Spoons;

  • Not alter, modify, adapt, reverse engineer, decompile, disassemble or hack the Services, create derivative works from the Services or otherwise attempt to derive the source code for the Services;

  • Not remove or alter any copyright notices or other notices included in the Services;

  • Not alter or modify another website so as to falsely imply that it is associated with Bending Spoons;

  • Not intentionally transmit any viruses, bugs, worms, or any other computer code of a destructive nature or that may harm a network, computer, server, hardware, software or telephone equipment using the Services

  • Remain solely responsible for any message data sent from your account;

  • Use the Services in accordance with all applicable laws;

  • Not use any data mining, robots or similar data gathering and extraction methods in connection with the Services;

  • Not breach, or attempt to breach, the security of the Services;

  • Not use the Services or export the Services in violation of U.S. export laws and regulations;

  • Not solicit any activity, unlawful or otherwise, that infringes Bending Spoons’ rights or the rights of any other party; and

  • Not enable others to violate any of these terms and conditions.

Any violation of the Terms of Service may result in the termination of your account and your ability to access and use the Services.

5. OWNERSHIP

Bending Spoons recognizes the name on the account as the sole owner of the account. You are fully responsible for all transactions undertaken by means of your account. You shall notify us immediately and confirm in writing any unauthorized use of your account. You are the sole and exclusive guardian of any password that you may use to access the Services. If you provide any information in connection with your subscription, you agree to maintain accurate, complete and current information. You agree that in order to accommodate certain requests by you, we may require you to verify your ownership of an account by sending a verification code to the phone number on the account and/or by requesting reasonable documentation to show your ownership of the number and account.

6. SUBSCRIPTION SERVICES; AUTOMATIC RENEWAL

Subscriptions. You may choose to purchase a monthly or annual subscription and download the Application through a third party platform. Alternatively, you may subscribe to our Services through the Website and then download the related Application through a third party platform.

When you purchase a subscription, payment may be processed by third parties who act on our behalf or directly by the third party platform (e.g. Apple or Google). Rates for services are listed in the Application and in the applicable app store. Bending Spoons reserves the right to modify its rates at any time and/or to offer special promotions. All payments are non-refundable. Subscription payments will auto-renew unless cancelled in accordance with the Terms of Service. If you purchased the Application through a third party platform and have a billing dispute, you must contact the respective third party platform to seek a remedy. If you purchased a subscription to our Services through our Online Services, please Contact Us.

If you subscribed for our Services by purchasing and installing an App through a third party mobile platform owner (either through the third party platform or in-App), you may cancel your subscription at any time by following the Apple App Store or Google Play Store instructions or via the subscription settings in your iTunes or Android account. If you subscribed for our Services directly through the Website, you may cancel your subscription at any time by logging in to manage your subscriptions on the applicable Website.

All cancellations will take effect starting at the end of the then current billing period. For example, if you have a monthly subscription that began on the first of the month but cancel mid-month, your cancellation will be effective as of the end of that month. There are no refunds on subscriptions once the charge has gone through for the billing period.

Paid Applications. Certain Apps are available for one-time purchase (no recurring subscription) through either the Apple App or Google Play Store. European Union residents normally have a right to cancel online purchases within 14 days of making them. Please note and acknowledge that if you are resident in the European Union and purchase an App from a mobile platform owner, you may not be able to cancel your order or obtain a refund. Please review the mobile platform owner's terms in this regard before purchase.

You may uninstall paid applications at any time at your discretion. All purchases of paid applications are non-refundable.

Free Trial. We may provide a free trial period during which you can use all features of the Services for a limited period of time. You acknowledge and agree that your free-trial subscription will automatically renew as a paid subscription unless you cancel before the end of the trial period in accordance with the Cancellation section of the Terms of Service.

Automatic Renewal. Paid subscriptions to our Services are auto-renewing. You will be charged the stated subscription amount for the subscription period upon completion of your registration and submission of your payment information or, if applicable, at the end of your free trial period if you have not canceled at least 24 hours in advance of the expiration of the trial period. You hereby agree to and authorize automatic (recurring) billing, and you agree to pay the charges made to your account in connection therewith. You will be billed at the then-current applicable subscription price plus any applicable taxes. Payments for renewal subscriptions are processed using the same billing cycle as your current subscription. Subscription fees may change at any time, to the fullest extent permitted under applicable law. Your subscription, and monthly billing of your account, will continue indefinitely until cancelled by you in accordance with the Cancellation section of the Terms of Service.

7. NEW FEATURES; UPDATES

We reserve the right to add or remove features or functions to the Services at any time. When installed on your Devices, Bending Spoons periodically communicates with our servers. We may require updating the Application on your Devices when we release a new version or when we make new features available. This update may occur automatically or upon prior notice to you. You understand that we may require your review and acceptance of our then-current Terms of Service before you will be permitted to use any subsequent versions of the Service. You acknowledge and agree that any obligation we may have to support previous versions of the Service may be ended upon the availability of updates, supplements or subsequent versions of the Services. You acknowledge and agree that we have no obligation to make available to you any updates, supplements or subsequent version of the Service.

8. CHANGES TO TERMS OF SERVICE

We may update the Terms of Service from time to time without notice to you. Your use of the Services after the changes to the Terms of Service are posted shall constitute your acceptance of the updated Terms of Service. If you do not agree to any of the terms and conditions in the Terms of Service or any provisions in the Privacy Policy, as they may be updated from time to time, then you may not access or use the Services.

9. CANCELLATION

Mobile Platform Download (e.g. Apple or Google). You may discontinue your subscription and recurring payments at any time by following the Apple App Store or Google Play Store instructions. If you have a paid subscription, you will not be entitled to any refund of unused balances if you discontinue your subscription. There are no refunds on subscriptions once the charge has gone through for the billing period.

10. ACCOUNT SUSPENSION; TERMINATION BY BENDING SPOONS

Bending Spoons reserves the right, if it reasonable suspects that you are committing fraud or otherwise violating the Terms of Service to (a) terminate your access to the Service upon one (1) day’s electronic notice; (b) refuse to allow you to recharge your account; or (c) suspend your account immediately until further investigation takes place.

Upon any termination of the Terms of Service, the license granted above shall terminate, and you shall have no right to continue to use the Services.

11. NO WARRANTIES; DISCLAIMERS AND LIMITATIONS

Warranties. YOU ACKNOWLEDGE THAT BENDING SPOONS DOES NOT REPRESENT OR WARRANT THAT THE CONTENT AND ANY OTHER DATA OR INFORMATION PROVIDED THROUGH THE SERVICE WILL BE ACCURATE OR COMPLETE

YOU ALSO ACKNOWLEDGE THAT THE SERVICE MAY CONTAIN BUGS, ERRORS, AND OTHER PROBLEMS THAT COULD CAUSE THE SERVICE TO BE UNAVAILABLE OR TO FAIL TO DELIVER MESSAGES OR OTHERWISE BE UNRELIABLE. CONSEQUENTLY, THE SERVICE AND THE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING THAT THE SERVICE OR THE CONTENT WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE SERVICE, ITS SERVERS, OR THE CONTENT ARE OR WILL BE SECURE OR FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.

Disclaimers. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.

Limitation of Liability. IN NO EVENT WILL BENDING SPOONS, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR (I) ANY INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST REVENUE OR ANTICIPATED SAVINGS, LOST DATA, LOST GOODWILL, OR BUSINESS INTERRUPTION ARISING OUT OF THE TERMS OF SERVICE OR RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE SERVICE OR THE CONTENT, REGARDLESS OF THE CAUSE OF ACTION (INCLUDING TORT AND BREACH OF CONTRACT) EVEN IF FORESEEABLE, AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES ARISING OUT OF THE TERMS OF SERVICE OR THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE SERVICE OR THE CONTENT, EXCEEDING, IN THE AGGREGATE, THE HIGHER OF FIFTY DOLLARS ($50) OR THE TOTAL FEES THAT YOU HAVE PAID TO US WITHIN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO ANY CLAIM FOR SUCH DAMAGES

12. INDEMNIFICATION

You agree to defend, indemnify, and hold us and our officers, directors, employees, successors, agents, and assigns harmless from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of the Terms of Service and/or your misuse of the Services. We shall provide notice to you of any such claim, suit, or proceeding. We reserve the right, at your expense, to assume the exclusive defense and control of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.

13. THIRD PARTY PROVIDERS OR PARTNERS

You agree and understand that Bending Spoons may use trusted third-party service providers to provide the Services and help Bending Spoons market and operate its business. These service providers include without limitation, marketing partners, infrastructure partners, and third parties that provide us with customer service and internal analytics tools. To learn more about how we may share information with our third-party providers or partners, see the Privacy Policy.

14. EXTERNAL SITES

The Services may contain links to third-party websites or may otherwise allow you to gain access to third-party websites (“External Sites”). These links and/or access to such External Sites are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your Devices from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.

15. INTELLECTUAL PROPERTY

The Services contains material, such as proprietary software, text, graphics, images, and other material provided by or on behalf of Bending Spoons (collectively, the “Content”). The Content (excluding the sensitive and confidential information shared between users) presented to you as part of the Services is owned by Bending Spoons or by its licensors and is protected by intellectual property rights under both United States and foreign laws. Except as expressly permitted under the Terms of Service, no right, title, or interest in or to any Content is transferred to you. The trademarks, service marks, logos, product names and company names (the “Trademarks”) used and displayed on or through the Services are registered and unregistered trademarks or service marks of Bending Spoons and its licensors. Nothing in the Services or in the Terms of Service shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. All goodwill generated from the use of the Trademarks inures to the benefit of Bending Spoons and its licensors, as applicable.

Elements of the Services are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated, in whole or in part, by any means, including but not limited to the use of framing or mirrors.

16. COPYRIGHT

Bending Spoons respects the intellectual property rights of others, and we expect our users to do the same. We will review all claims of copyright infringement received and remove any Content posted or distributed in violation of applicable copyright laws.

Our designated agent under the United States Digital Millennium Copyright Act, 17 U.S.C. Section 1201, et seq., (the “DMCA”) for the receipt of any Notification of Claimed Infringement which may be given under the DMCA is as follows:

Bending Spoons Operations S.p.A.
Via Nino Bonnet 10

20154 Milano

Italy
Attn: Legal Department
Email: legal@bendingspoons.com

If you believe that your work has been copied on or via the Services in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the DMCA, including: (i) a description of the copyrighted work that has been infringed and the specific location where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number and email address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.

17. GOVERNING LAW; EQUITABLE RELIEF

Governing Law. The Terms of Service and any action related thereto will be governed by the laws of the State of New York without regard to its conflict of laws provisions.

Equitable Relief. You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce the Terms of Service. We may, without waiving any other remedies under the Terms of Service, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of New York, Borough of Manhattan for purposes of any such action by us.

18. DISPUTE RESOLUTION; BINDING INDIVIDUAL ARBITRATION

PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOUR AND OUR ABILITY TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH YOU AND WE CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND US FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND WE AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. WE AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.

THE PARTIES ACKNOWLEDGE THAT THE TERMS IN THIS SECTION ARE INTENDED TO REDUCE THE FINANCIAL BURDENS ASSOCIATED WITH RESOLVING THEIR DISPUTES AND ARE NOT INTENDED TO DELAY ADJUDICATION OF ANY PARTY’S CLAIMS.

FOLLOW THE INSTRUCTIONS BELOW IN SECTION 18(L) IF YOU WISH TO OPT OUT OF THE REQUIREMENT TO ARBITRATE ON AN INDIVIDUAL BASIS.

a) Claims Subject to this Section. The dispute resolution and binding arbitration terms in this Section 18 apply to all Claims between you and us. A “Claim” is any dispute, claim, cause of action, or controversy (excluding those exceptions listed below) between you and us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory for which either party wishes to seek legal recourse and that arises from or relates to these Terms of Service or our Services, including any related to privacy or data-security or to the formation, validity, enforceability, revocability, performance, breach, or scope of the Terms of Service or arbitration agreement or any portion of it or arising out of or relating to interpretation or application of the Terms of Service or arbitration agreement.

b) Informal Dispute Resolution Prior to Arbitration. If you have a Claim against us or if we have a Claim against you, you and we must first attempt to resolve the Claim informally in order to try to resolve the Claim faster and reduce costs for both parties. You and we will make a good-faith effort to negotiate the resolution of any Claim for 45 days, or such longer period as mutually agreed in writing (email suffices) by the parties, (“Informal Resolution Period”) from the day either party receives a written notice of a dispute from the other party (a “Claimant Notice”) in accordance with these Terms of Service.

You will send any Claimant Notice to us by certified mail addressed to Via Nino Bonnet 10, 20154 Milano, Italy or by email to bspoperations@legalmail.it. We will send any Claimant Notice to you by certified mail or email using the contact information you have provided to us or via reasonably available means of notice if you have not provided certified mail or email contact information to us. The Claimant Notice sent by either party must (i) include the sender’s name, address, email address, telephone number, and any relevant purchase information; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought.

The Informal Resolution Period is intended to allow the party who has received a Claimant Notice to make a fair, fact-based offer of settlement if it chooses to do so. You or we cannot initiate arbitration before the end of the Informal Resolution Period. If you or we file a Claim in court or initiate arbitration without first providing a compliant Claimant Notice and waiting until the conclusion of the Informal Resolution Period, the other party reserves the right to seek relief from a court or arbitrator to enjoin the filing or arbitration and seek damages from the party that has not followed the informal dispute-resolution process to reimburse it for any costs and fees—including arbitration, attorney, and expert fees—incurred as a foreseeable consequence of that breach.

The statute of limitations and any filing-fee deadlines for a Claim shall be tolled for the duration of the Information Resolution Period for that Claim so that the parties can engage in this informal dispute-resolution process.

c) Claims Subject to Binding Arbitration; Exceptions. Except for individual disputes that qualify for small-claims court (provided that the small-claims court does not permit class or similar representative actions or relief) and any disputes exclusively related to the intellectual property or intellectual-property rights of you or us, including any disputes in which you or we seek injunctive or other equitable relief for the alleged unlawful use or infringement of your or our intellectual property (“IP Claims”), all Claims, including Claims that are not related to intellectual property but are jointly filed with IP Claims, that are not resolved in accordance with Section 18(b) will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury.

d) Binding Individual Arbitration. Subject to the terms of this section, Claims may only be adjudicated by binding individual arbitration conducted by National Arbitration and Mediation (“NAM”), https://namadr.com, according to the Federal Arbitration Act, 9 U.S.C. § 1, et seq., (“FAA”) and NAM’s Comprehensive Dispute Resolution Rules and Procedures in effect at the time the Claim arose (the “Rules”), as modified by these Terms of Service.

If NAM notifies the parties in writing (email suffices) that it is not available to arbitrate any Claim, then that Claim may only be settled by binding individual arbitration conducted by American Arbitration Association (“AAA”), https://www.adr.org. For Claims that must be arbitrated by AAA, if you are a “Consumer,” meaning that you only use the Services for personal, family, or household purposes, the then-current version of the AAA’s Consumer Arbitration Rules apply to Claims between you and us, as modified by these Terms of Service. For Claims that must be arbitrated by AAA, if you are not a “Consumer,” the then-current version of the AAA’s Commercial Arbitration Rules and Mediation Procedures apply to Claims between you and us as modified by these Terms of Service.

These Terms of Service affect interstate commerce, and the enforceability of this Section 18 will be substantively and procedurally governed by the FAA to the extent permitted by law. As limited by the FAA, these Terms of Service, and the Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Claim and to grant any remedy or relief that would otherwise be available in court, including the power to determine the question of arbitrability.

e) Arbitration Procedure and Location. You or we may initiate arbitration of any Claim not resolved during the Informal Resolution Period by filing a demand for arbitration with NAM (or with AAA if applicable pursuant to Section 18(d)).

Instructions for filing a demand for arbitration with NAM are available on the NAM website or by calling NAM at 800-358-2550, and instructions for filing a demand for arbitration with AAA are available on the AAA website or by calling AAA at 800-778-7879. You will send a copy of any demand for arbitration to us by certified mail addressed to Via Nino Bonnet 10, 20154 Milano, Italy or by email to bspoperations@legalmail.it. We will send any demand for arbitration to you by certified mail or email using the contact information you have provided to us or via reasonably available means of notice if you have not provided certified mail or email contact information to us.

The arbitration will be conducted by a single arbitrator in the English language. You and we both agree that the arbitrator will be bound by these Terms of Service.

For Claims in which the claimant seeks USD $10,000 or less, the arbitrator will decide the matter solely based on written submissions, without a formal hearing, unless the arbitrator decides that a formal hearing is necessary. For Claims in which the claimant seeks more than USD $10,000, or smaller matters in which the arbitrator determines a hearing to be necessary, hearings shall be conducted by video or telephone, unless the arbitrator determines an in-person hearing is necessary. If an in-person hearing is required and you reside in the United States, the hearing will take place in New York, New York, unless the arbitrator determines that this would pose a hardship for you, in which case the in-person hearing may be conducted in the claimant’s state and county of residence. If you reside outside the United States, the site of any in-person hearing will be determined by the applicable Rules.

The arbitrator (not a judge or jury) will resolve all Claims in arbitration. Unless you and we agree otherwise, any decision or award will include a written statement stating the decision of each Claim and the basis for the award, including the arbitrator’s essential factual and legal findings and conclusions.

An arbitration award and any judgment confirming it apply only to that specific case; they cannot be used or offered as precedent in any other case except to enforce the award itself. Any arbitration decision or award may be enforced as a final judgment by any court of competent jurisdiction or, if applicable, application may be made to such court for judicial confirmation of any award and an order of enforcement.

f) Arbitration Fees. Except for circumstances outlined in Sections 19(g) and 19(h), each party will be responsible for arbitration fees in accordance with the applicable Rules and these Terms of Service.

g) Frivolous or Improper Claims. To the extent permitted by applicable law, a claimant must pay all costs and fees incurred by the defending party—including arbitration, attorney, and expert fees—related to a Claim if an arbitrator determines that (i) the Claim was frivolous or (ii) the Claim was filed for any improper purpose, such as to harass the responding party, cause unnecessary delay, or needlessly increase the cost of dispute resolution.

h) Offers of Settlement: Either party may, but is not obligated to, make a written settlement offer for a Claim. If an arbitration decision or award is later issued that is less favorable to a party than the latest written offer of settlement that party rejected, that party must pay all arbitration costs and fees incurred by the other party after the written settlement offer was made.

i) One Year to Assert Claims. TO THE EXTENT PERMITTED BY LAW, ANY CLAIM BY YOU OR US AGAINST THE OTHER MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM ARISES; OTHERWISE, THE CLAIM IS PERMANENTLY BARRED, WHICH MEANS THAT YOU OR WE WILL NO LONGER HAVE THE RIGHT TO ASSERT THAT CLAIM.

j) Confidentiality. If you or we submit a Claim to arbitration, you and we agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and other materials that might be exchanged or the subject of discovery in the arbitration. You and we agree to seek such protection before any such information, documents, testimony, or materials are exchanged or otherwise become the subject of discovery in the arbitration.

k) Coordinated Filings. If 25 or more Claimant Notices are received by a party that raise similar claims and have the same or coordinated counsel, these will be considered “Coordinated Claims” and will be treated as mass filings or multiple case filings according to the Rules, if and to the extent Coordinated Claims are filed in arbitration as set forth in these Terms of Service. You or we may advise the other of your or our belief that Claims are Coordinated Claims, and disputes over whether a Claim meets the definition of “Coordinated Claims” will be decided by the arbitration provider as an administrative matter.

COORDINATED CLAIMS MAY ONLY BE FILED IN ARBITRATION AS PERMITTED BY THE BELLWETHER PROCESS SET FORTH BELOW. APPLICABLE STATUTES OF LIMITATIONS WILL BE TOLLED FOR CLAIMS ASSERTED AS COORDINATED CLAIMS FROM THE TIME A COMPLIANT CLAIMANT NOTICE HAS BEEN RECEIVED BY A PARTY UNTIL THESE TERMS PERMIT SUCH COORDINATED CLAIMS TO BE FILED IN ARBITRATION OR COURT.

The bellwether process set forth in this section will not proceed until counsel representing the Coordinated Claims has advised the other party in writing (email suffices) that all or substantially all the Claimant Notices for the Coordinated Claims have been provided.

After that point, counsel for the parties shall select 20 Coordinated Claims to proceed in arbitration as a bellwether to allow each side to test the merits of its claims and arguments. Each side shall select 10 claimants who have provided compliant Claimant Notices for this purpose, and only those chosen cases may be filed with the arbitration provider. The parties acknowledge that resolution of some Coordinated Claims will be delayed by this bellwether process.

A single arbitrator shall preside over each Coordinated Claim chosen for a bellwether proceeding, and only one Coordinated Claim may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise.

Once the arbitrations that are part of the bellwether process have concluded (or sooner if the claimants and the other party agree), counsel for the parties must engage in a single mediation of all remaining Coordinated Claims, with the mediator’s fee paid for by us. Counsel for the claimants and the other party must agree on a mediator within thirty (30) days after the conclusion of the last bellwether arbitration. If counsel for the claimants and the other party cannot agree on a mediator within 30 days, the arbitration provider will appoint a mediator as an administrative matter. All parties will cooperate for the purpose of ensuring that the mediation is scheduled as quickly as practicable after the mediator is appointed.

If the mediation does not yield a global resolution of all remaining Coordinated Claims, the arbitration requirement in this Section 18 shall no longer apply to Coordinated Claims for which a compliant Claimant Notice was received by the other party but that were not resolved in the bellwether proceedings. Such Coordinated Claims released from the arbitration requirement must be resolved in accordance with Section 18.

To the extent you are asserting the same Claim as other persons and are represented by common or coordinated counsel, you agree to waive any objection that the joinder of all such persons is impracticable.

If Coordinated Claims released from the arbitration requirement are brought in court, claimants may seek class treatment, but to the fullest extent allowed by applicable law, the classes sought may comprise only the claimants in Coordinated Claims for which a compliant Claimant Notice was received by the other party. Any party may contest class certification at any stage of the litigation and on any available basis.

A court shall have authority to enforce the bellwether and mediation processes defined in this Section 18(k) and may enjoin the filing of lawsuits or arbitration demands not made in compliance with it.

l) Opting Out of Arbitration. You have the right to opt out of binding arbitration within 30 days from the date when these Terms are notified to you by providing us with notice of your decision to opt out via email at bspoperations@legalmail.it or by certified mail addressed to Via Nino Bonnet 10, 20154 Milano, Italy. To be effective, the opt-out notice must include your full name, mailing address, and email address. The notice must also clearly indicate your intent to opt out of binding arbitration. If you opt out of this updated arbitration clause and were previously subject to an arbitration clause in effect prior to this updated arbitration clause, then that prior arbitration clause shall remain as the agreement between us. If you are a new user and did not previously consent to the prior arbitration clause and you choose to opt-out of this updated agreement, then we will also not be bound by this updated arbitration clause.

m) Rejection of Future Arbitration Changes. You may reject any change we make to Section 18 (except address changes) by sending us notice of your rejection within 30 days of the change via email at bspoperations@legalmail.it or by certified mail addressed to Via Nino Bonnet 10, 20154 Milano, Italy. Changes to Section 18 may only be rejected as a whole, and you may not reject only certain changes to Section 18. If you reject changes made to Section 18, the most recent version of Section 18 that you have not rejected will continue to apply.

n) Severability. If any portion of this Section 18 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from these Terms of Service; (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 18 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 18; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 18 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 18 will be enforceable.

19. MISCELLANEOUS

Entire Agreement. Except as expressly agreed by us and you in writing, the Terms of Service, including the Privacy Policy, constitutes the entire agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter.

Export Controls. The Services and the underlying information and technology are subject to US and international laws, restrictions and regulations that may govern the import, export, downloading and use of the Services. You agree to comply with these laws, restrictions and regulations when downloading or using the Services.

Severability. If any provision of the Terms of Service is deemed by a competent court or arbitrator to be invalid, void, or unenforceable, the parties agree that the court or arbitrator should endeavor to give effect to the parties’ intentions as reflected in the applicable provision, and any unenforceable provision shall be deemed severable and shall not affect the validity and enforceability of any remaining provision.

Consent to Communications. By agreement to the Terms of Service, you consent to the receipt of emails, text messages, in-app notifications, and customer service phone communication (including on-screen notifications) from us regarding, (i) the operation of the Services and your account; and (ii) other services and products we believe may be of interest to you. In some jurisdictions, we may get your express consent for certain communications. You may opt-out of future emails, notifications, and text messages about such products or services by contacting us at the support emails listed in the Contact Us section of this Agreement. You may not, however, opt-out of receiving communications regarding important information relating to your account or this Agreement.

Communications Decency Act Notice. Bending Spoons is a provider of “interactive computer services” as defined under the Communications Decency Act, 47 U.S.C. Section 230, and as such, our liability for defamation, libel, product disparagement, and other claims arising out of any communications sent by our users is limited as described therein. We are not responsible for any communications of our users. We neither warrant the accuracy of communications or exercise any editorial control over communications, nor do we assume any legal obligation for editorial control of communications or liability in connection with communications, including any responsibility or liability for investigating or verifying the accuracy of any communications. In fact, as noted in the Privacy Policy, we do not (and cannot) read encrypted communications.

Section Headings. The section headings are provided merely for convenience and shall not be given any legal import.

Force Majeure. Bending Spoons shall not be liable to you or others for failure to perform under the Terms of Service if the failure results, directly or indirectly, from government action or inaction, mechanical or electrical breakdown, war, civil unrest, natural disaster or other cause beyond its reasonable control. If you are affected by an interruption of delay contemplated by this section, Bending Spoons will use its commercially reasonable efforts to remedy the interruption of delay if it is reasonably capable of being remedied.

Waiver. Our failure to act on or enforce any provision of the Terms of Service shall not be construed as a waiver of that provision or any other provision in the Terms of Service. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance.

Binding Agreement. The Terms of Service shall be binding upon and shall inure to the benefit of the parties.

Compliance with Applicable Laws. The Services are based in the U.S. We make no claims concerning whether the Services may be used or are appropriate for use outside of the United States or for your particular industry, company, or intended use. Your access to and use of the Services is solely at your own risk. You are solely responsible for ensuring compliance with the applicable laws of your specific jurisdiction and industry.

Ambiguous Terms. Any ambiguities in the Terms of Service will not be strictly construed against the drafter of the language concerned but will be resolved by applying the most reasonable interpretation under the circumstances, giving full consideration to the intentions of the parties at the time of contracting. The Terms of Service will not be construed against any party by reason of its preparation.

20. ACCEPTABLE USE POLICY

Bending Spoons respects free and open discussion and dissemination of information. When there are competing interests at issue, however, Bending Spoons reserves the right to take certain preventive or corrective actions. In order to protect these competing interests, Bending Spoons has developed this Acceptable Use Policy (“AUP”), which supplements and explains certain terms in the Terms of Service and further defines your rights and obligations when utilizing the Services. This AUP may be revised from time to time, without any obligation to notify you of the same. Your use of the Services after changes to this AUP are made available through the Services shall constitute your acceptance of any new or additional terms.

When you obtain information via the Services, you must keep in mind that we cannot, and do not make any attempt to monitor, verify, warrant, or vouch for the accuracy and quality of the information that you may acquire. For this reason, you must exercise your best judgment in relying on information obtained from the Services, and also should be aware that some material may be offensive. Because we cannot monitor or censor the Services, and will not attempt to do so, Bending Spoons shall not be responsible for injury to you that results from inaccurate, unsuitable, offensive, or illegal communications.

When you disseminate information via the Services, you must keep in mind that Bending Spoons does not review, edit, censor, or take responsibility for any information you may create. When you place information on the Services, you have the same liability as other authors for copyright infringement, defamation, and other harmful speech. Also, because the information you create is carried over networks and may reach a large number of people, your communications may affect other users and may harm our goodwill, business reputation, and operations. For these reasons, you violate this AUP and the Terms of Service when you engage in or facilitate the following prohibited activities:

Intellectual Property Violations. Using the Services to engage in any activity that infringes or misappropriates the intellectual property rights of others, including copyrights, trademarks, service marks, trade secrets, patents, or privacy or publicity rights held by individuals, corporations, or other entities. We are required by law to remove or block access to user content upon receipt of a proper notice of copyright infringement. It is also our policy to terminate the privileges of users who violate copyright laws.

Obscene Speech or Materials. Using the Services to view, advertise, transmit, store, post, display, or otherwise make available child pornography or obscene speech or material. We are required by law to notify law enforcement agencies when we become aware of the presence of child pornography on or being transmitted through the Services.

Defamatory or Abusive Language. Using the Services as a means to transmit or post defamatory, harassing, abusive, or threatening language.

Spamming. Using the Services to send unsolicited bulk and/or commercial messages (known as “spamming”). Spamming is not only harmful because of its negative impact on consumer attitudes toward Bending Spoons, but also because it can overload our networks and disrupt service to our other users. When a complaint is received, we have the discretion to determine from all of the evidence whether the recipients were from an “opt-in” email list.

Forging of Headers. Using the Services to forge or misrepresent message headers, whether in whole or in part, to mask the originator of the message.

Illegal or Unauthorized Access to Other Computers or Networks. Using the Services to access illegally or without authorization computers, accounts, or networks belonging to another party, or attempting to penetrate security measures of another individual’s system (often known as “hacking”). Also, any activity that might be used as a precursor to an attempted system penetration (i.e. port scan, stealth scan, or other information gathering activity).

Distribution of Internet Viruses, Worms, Trojan Horses, or Other Destructive Activities. Using the Services to distribute information regarding the creation of and sending Internet viruses, worms, trojan horses, pinging, flooding, mailbombing, or denial of service attacks.

Export Control Violations. Using the Services to export encryption software to points outside the United States.

Other Unlawful Uses. Using the Services for any unlawful purpose, including, without limitation, advertising, transmitting, or otherwise making available ponzi schemes, pyramid schemes, fraudulently charging credit cards, or pirating content.

Market Research. Using the Services to collect any market research for a competing business.

Interference. Taking any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure; using automated means, including spiders, robots, crawlers, data mining tools, or the like to download or scrape data from the Website, except for Internet search engines (e.g., Google) and non-commercial public archives (e.g., archive.org) that comply with our robots.txt file; or interfering with or attempting to interrupt the proper operation of the Services through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Services through hacking, password or data mining, or any other means.

Other Activities. Using the Services to engage in activities, whether lawful or unlawful, that Bending Spoons determines to be harmful to our users, operations, reputation, goodwill, or customer relations.

The responsibility for avoiding the harmful activities just described rests primarily with you. We do not (and cannot) read or monitor the contents of the communications of our users to ensure that they comply with the Terms of Service, this AUP, or applicable law. However, if we become aware of harmful activities, we may take any action to stop the harmful activity, including, but not limited to, removing information, implementing screening software designed to block offending transmissions, denying access to the Website, Application and/or Services, or taking any other action that we deem appropriate in our sole discretion.

We hope this AUP is helpful in clarifying your obligations as a responsible user of the Services. Any complaints about a user’s violation of this AUP should be sent to support.bendingspoons.com.

21. CONTACT US

Should you have any questions or comments related to Bending Spoons, the Terms of Service or the Privacy Policy, please email us at: support.bendingspoons.com. You may also contact us by postal mail:

Bending Spoons Operations S.p.A.
Via Nino Bonnet 10
20154 Milano
Italy
Attention: Legal Department

With respect to any communications you send to us, including, but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including, but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation to you.

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