Welcome to Electragram

Electragram Terms of Service

Welcome, and thank you for your interest in Electragram ("we," or "us"), our application for your mobile device (the "App"), our Web site at electragram.com (the "Site"), and any related web sites, networks, embeddable widgets, mobile applications (including tablet applications), and other services provided by us and on which a link to these Terms of Service is displayed (together with the App and Site, our "Service"). These Terms of Service are a legally binding contract between you and Electragram regarding your use of the Service.

PLEASE READ THE FOLLOWING TERMS OF SERVICE CAREFULLY. BY DOWNLOADING, INSTALLING, CLICKING "I ACCEPT", OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING THE ELECTRAGRAM PRIVACY POLICY AND THE OTHER "ADDITIONAL TERMS", AS DEFINED BELOW (TOGETHER, THE "TERMS"). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THESE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE.

You hereby acknowledge and agree that, as provided in greater detail in these Terms:

  • Electragram is not liable for any disputes between users, or between users and third parties, arising from use of the App;
  • the App is licensed, not sold to you;
  • your use of the Service may be subject to separate third-party terms of service and fees, including, without limitation, the terms of service and data, SMS, MMS, and other fees of your mobile network operator (the "Carrier"), which are your sole responsibility;
  • you consent to the collection and use of your personally identifiable information in accordance with Electragram's Privacy Policy;
  • the Service is provided "as is" without warranties of any kind, and Electragram's liability to you is limited;
  • disputes arising hereunder will be resolved by binding arbitration, AND BY ACCEPTING THESE TERMS, YOU AND ELECTRAGRAM ARE WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the Arbitration Agreement in Section 21 below for the details regarding your agreement to arbitrate any disputes with Electragram;
  • the App may require access to a variety of services on your mobile device, including UDID, MAC address, or other applicable device identifier, phone state and identity, internet and data services, and such other features or services that we may describe in our documentation; and
  • if you are using the App on an iOS-based device, you agree to and acknowledge the "Special Terms Regarding Apple", below.

  1. Eligibility. You must be at least thirteen (13) years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least thirteen (13) years of age; (b) if you are between the ages of thirteen (13) and eighteen (18) years old, your parent or guardian has read and agreed to these Terms and to your use of the Service; (c) you have not previously been suspended or removed from the Service; and (d) your registration and your use of the Service is in compliance with all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization. Electragram may, in its sole discretion, refuse to offer the Service to any person or entity, and may change its eligibility criteria at any time.

  2. Accounts and Registration. To access certain features of the Service, you may be required to register for an account. When you register for an account, you may be asked to provide us with some information about yourself, such as your name, e-mail address, telephone number, or other contact information. You may also be asked to authenticate your account on the Service through your account on a third-party service (e.g., Facebook or Twitter). You will be solely responsible for maintaining the confidentiality of your account on the Service. You agree to accept responsibility for all activities that occur under your account.

  3. App Terms. The terms of this Section 3 govern your acquisition and use of the App.

    3.1. Third-Party Accounts. In order to download the App, you may be required by the third party who is distributing or providing you access to the App, such as Apple, Inc. (each, a "Distributor") to create an account. You are solely responsible for maintaining the security of any logins, passwords, or other credentials that you select or that are provided to you to access your account with any Distributor. Your use of any account with a Distributor is subject to any terms, conditions, and policies, including privacy policies, of that Distributor. Electragram is not responsible for any act or omission of any Distributor.

    3.2. License to the App. Subject to your complete and ongoing compliance with all the terms and conditions set forth in these Terms, Electragram grants you (1) a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use one copy of the App downloaded directly from Electragram or from a legitimate marketplace (such as Apple's iTunes store), solely in object code format and solely for your personal use for lawful purposes, on a single compatible mobile device that you own or control; and (2) permission to access and use the Service, only for your personal use, and solely through the use of a licensed copy of the App. You may not reproduce, distribute, publicly display, or publicly perform the App or any part of the Service. Except if, and solely to the extent that, such a restriction is impermissible under applicable law, you may not (a) decompile, reverse engineer, or otherwise access or attempt to access the source code for the App, or make or attempt to make any modification to or derivative work of the App; or (b) interfere with or circumvent any feature of the App, including without limitation any security or access control mechanism. You may not use the App or the Service for any purpose other than a purpose for which the App and the Service are expressly designed. The term App, as used herein, includes any update or modification to the App made available to you by Electragram (unless provided with separate terms). If you are prohibited under applicable law from using the App or the Service, you may not use them.

    3.3. Access to the App; Third-Party Fees. Electragram does not provide you with equipment to use the App. You are responsible for all fees charged by third parties to access and use the App (e.g., charges by Carriers). Without limiting the foregoing, you are solely responsible for payment of all applicable fees related to any Carrier service plan you use in connection with your use of the Service (such as voice, data, SMS, MMS, roaming, other applicable fees charged by the Carrier). Accordingly, you should use care in selecting a service plan offered by your Carrier.

    3.4. Special Terms Regarding Apple. If you download software from Apple, Inc.'s App Store, your use of the software must at all times be in accordance with the Usage Rules set forth in the Apple, Inc. App Store Terms of Service, and you acknowledge that these Terms are between you and Electragram only, and not with Apple. Apple is not responsible for the Service and the content thereof. This Agreement is not intended to provide for usage rules for software that are less restrictive than the Usage Rules set forth for "Licensed Applications" in, or that otherwise conflict with, the App Store Terms of Service. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and Apple will refund any applicable purchase price for the App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (i) product liability claims; (ii) maintenance and support; (iii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iv) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the Service and/or your possession and use of the App infringe that third-party's intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple, and Apple's subsidiaries, are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

  4. Feedback Grant. If you provide Electragram any feedback, comments, or suggestions regarding the Service, including, without limitation, information regarding how to improve the Service or any other Electragram products or services ("Feedback"), you hereby assign to Electragram all right and title to such Feedback, without any additional compensation to You. You further acknowledge that, by accepting your Feedback, Electragram does not waive any rights to use similar or related ideas previously known to Electragram, or developed by its employees, or obtained from sources other than you.

  5. Digital Millennium Copyright Act.

    5.1. DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. ยง512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
    support@electragram.com
    Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:

    a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;

    b. a description of the copyright-protected work or other intellectual property right that you claim has been infringed;

    c. a description of the material that you claim is infringing and where it is located on the Service;

    d. your address, telephone number, and email address;

    e. a statement by you that you have a good faith belief that the use of those materials on the Service is not authorized by the copyright owner, its agent, or the law; and

    f. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner, or you are authorized to act on the copyright or intellectual property owner's behalf.

    5.2. Repeat Infringers. Electragram will promptly terminate without notice the accounts of users that are determined by Electragram to be "repeat infringers." A repeat infringer is a user who has been notified of infringing activity or has had content removed from the Service at least twice.

  6. Guidelines and Prohibited Conduct. By using the Service, you agree not to:

    6.1. use the Service for any illegal purpose or in violation of any local, state, national, or international law;

    6.2. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;

    6.3. post, upload, or distribute any content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;

    6.4. interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;

    6.5. interfere with the operation of the Service or any user's enjoyment of the Service, including by: (a) uploading or otherwise any disseminating virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service, including any informational announcements, charity requests, and petitions for signatures; (c) attempting to collect, personal information about another user or third party without proper consent; (d) taking any action (directly or indirectly) that imposes or may impose (as determined by Electragram in its sole discretion) an unreasonable or disproportionately large load on Electragram's or its third-party providers' infrastructure; or (e) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any network, equipment, or server;

    6.6. perform any fraudulent activity including impersonating any person or entity or claiming a false affiliation; misrepresenting the source, identity or content of information transmitted via the Service; accessing any other Service account without permission, or falsifying your age or date of birth;

    6.7. sell or otherwise transfer the access granted under these Terms, or any right or ability to view, access, or use any Materials (defined below); or

    6.8. attempt to do any of the acts described in this Section 6, or assist or permit any person in engaging in any of the acts described in this Section 6.

    ELECTRAGRAM RESERVES THE RIGHT TO DISABLE ANY USER'S ACCESS TO ANY PART OF THE SERVICE, OR TO DISABLE OR DISCONTINUE ANY MATERIALS, AND TO TERMINATE ANY USER'S ACCOUNT, FOR ANY REASON AND WITHOUT ANY NOTICE.

  7. Commercial Use. The Service is for your personal use, and unless expressly authorized herein, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.

  8. Disputes between Users, or between Users and Third Parties. You agree that all disputes between you and any other user(s) of the Service, or between you and any third party, shall be resolved between you and such other user(s) or third parties directly. You are solely responsible for your interactions with other users of the Service, and with third parties during your use of the Service. By using the Service, you do not surrender any of the rights or causes of action you may have against any other user(s) of the Service; provided, however, that any disputes you have with Electragram are subject to Section 21 (Dispute Resolution and Arbitration). Electragram, including all Electragram employees, representatives, and agents, are not parties to, have no involvement or interest in, make no representations or warranties as to, and have no responsibility or liability with respect to, any communications, transactions, interactions, disputes or any relations whatsoever between users, or between users and third parties.

  9. Third-Party Services; Linked Websites. Electragram may provide tools through the Service that enable you to connect with certain third-party services, including through features that allow you to link your account on the Service with an account on a third-party service (e.g., Facebook or Twitter). By linking your third-party service account with Electragram, such as through authenticating your Electragram account with your account on any such third-party service, you hereby authorize Electragram to use the tokens/credentials you provide to us to import or collect data that you may provide to such respective third-party service. Third-party services are not under our control, and we are not responsible for any third-party service's use of your information. The Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content. Electragram makes no representations or endorsements, nor are we liable for, any content, goods, or services that any third party provides to you, even such third party is linked to or from the Service or advertised on the Service.

  10. Termination of Use; Discontinuation and Modification of the Service. If you violate any provision of these Terms, your permission from us to use the Service will terminate automatically. In addition, Electragram may in its sole discretion terminate your user account on the Service or suspend or terminate your access to the Service at any time, with or without notice. We also reserve the right to modify, update, or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service) without notice to you. Should Electragram update the Service, you consent to automatic updating on your device, and agree that the terms and conditions of this Agreement will apply to all such updates. Electragram will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time by contacting customer service at support@electragram.com.

  11. Privacy Policy; Additional Terms

    11.1. Privacy Policy. Please read the Electragram Privacy Policy carefully for information relating to our collection, use, storage and disclosure of your personal information. The Electragram Privacy Policy is incorporated by this reference into, and made a part of, these Terms.

    11.2. Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the "Additional Terms"), such as end-user license agreements for any downloadable software applications, or rules that applicable to a particular feature or content on the Service, subject to Section 12 below. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.

  12. Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. In the event that a change to these Terms materially modifies your rights or obligations, we will make reasonable efforts to notify you of such change, such as a notification through a pop-up or banner within the Service, by sending an email to any address you may have used to register for an account, or through other similar mechanisms. Additionally, if the changed Terms materially modify your rights or obligations, we may require you to provide consent by accepting the changed Terms. If we require your acceptance of the changed Terms, changes are effective only after your acceptance. If you do not accept the changed Terms, we may terminate your access to and use of the Service. All other changes are effective upon publication of the changed Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.

  13. Ownership; Proprietary Rights. The Service is owned or licensed and operated by Electragram. The visual interfaces, graphics, design, content, information, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service ("Materials") provided by Electragram are protected by intellectual property and other laws. Except as expressly authorized by Electragram, you may not make use of the Materials. The Electragram names and logos are trademarks and service marks of Electragram, and the third-party names, service names and logos used and displayed via the Service may be trademarks or service marks of Electragram's respective licensors or other third parties (collectively, the "Marks"). Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Marks, without our prior written permission in each instance. All goodwill generated from the use of Marks will inure to the exclusive benefit of Electragram or the applicable licensor or third party. As between you and Electragram, Electragram reserves all rights to the Materials not granted expressly in these Terms.

  14. Special Notice for International Use; Export Controls. Any software made available in connection with the Service and the transmission of applicable data, if any, is subject to U.S. and other applicable export controls. No software may be downloaded from the Service or otherwise exported or re-exported in violation of applicable export laws. Downloading or using the software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.

  15. Government Users. The Service software and related documentation are "commercial computer software" and "commercial computer software documentation," respectively, as such terms are used in United States Federal Acquisition Regulations Section 12.212. Any use, duplication or disclosure of the software or the related documentation by or on behalf of the U.S. Government is subject to restrictions as set forth in this Agreement.

  16. Indemnity. To the fullest extent permitted by law, you agree that you will be responsible for your use of the Service, and you agree to defend and indemnify Electragram and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the "Electragram Entities") from and against every claim, liability, damage, loss, and expense, including reasonable attorneys' fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.

  17. Disclaimers; No Warranties.

    TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICE AND ALL MATERIALS AVAILABLE THROUGH THE SERVICE ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE Electragram ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE Electragram ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION THEREOF, OR ANY MATERIALS OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.

    NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE Electragram ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS THROUGH THE SERVICE. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL.

  18. Limitation of Liability.

    TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE Electragram ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY Electragram ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

    TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE THAT THE AGGREGATE LIABILITY OF THE Electragram ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100.

    EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTY, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 18 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

  19. Governing Law. These Terms are governed by the laws of New York without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, then you and Electragram agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within New York, New York for the purpose of litigating any dispute. We operate the Service from our offices in New York, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.

  20. General. These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Electragram regarding your use of the Service. Except as expressly permitted above, these Terms may be amended only by a written agreement signed by authorized representatives of all parties to these Terms. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. Upon termination of these Terms, any provision that by its nature or express terms should survive, will survive, including Sections 4, 8, 10, 13, and 15 through 21.

  21. Dispute Resolution and Arbitration

    21.1. Generally. In the interest of resolving disputes between you and Electragram in the most expedient and cost effective manner, you and Electragram agree that every dispute arising in connection with these Terms will be resolved by confidential, binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND Electragram ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

    21.2. Exceptions. Despite the provisions of Section 21.1, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of us to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.

    21.3. Arbitrator. Any arbitration between you and Electragram will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Electragram.

    21.4. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail ("Notice"). Electragram's address for Notice is: 81 Prospect St, Brooklyn, New York, 11201. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within thirty (30) days after the Notice is received, you or Electragram may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Electragram must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, Electragram will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Electragram in settlement of the dispute prior to the arbitrator's award; or (iii) $1,000.

    21.5. Fees. If you commence arbitration in accordance with these Terms, Electragram will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York, New York, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Electragram for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator's ruling on the merits.

    21.6. No Class Actions. YOU AND Electragram AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Electragram agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.

    21.7. Modifications. If Electragram makes any future change to this arbitration provision (other than a change to Electragram's address for Notice), you may reject the change by sending us written notice within thirty (30) days of the change to Electragram's address for Notice, in which case your account with Electragram will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject, will survive.

    21.8. Enforceability. If Section 21.6 is found to be unenforceable or if the entirety of this Section 21 is found to be unenforceable, then the entirety of this Section 21 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 18 will govern any action arising out of or related to these Terms.

  22. Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about your choices regarding our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.

  23. Open Source Software. The App may include open source software or third-party software. Any such software is made available to you under the terms of the applicable licenses.

  24. Contact Information. The Service is offered by Electragram. You may contact us by emailing us at support@electragram.com.

  25. Obtaining a Copy of These Terms. You may have these Terms mailed to you electronically by sending a letter to the address in Section 24 with your electronic mail address and a request for a copy of these Terms.