Effective Date: April 4, 2017
Please read through this entire Agreement, to make sure you understand how you may use the Cushion Site.
1. We ask that you be of legal age to use Cushion.
You may use the Cushion Site only if you can form a binding contract. You may use the Cushion Site only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Cushion Site by anyone under 13 is strictly prohibited and in violation of this Agreement. The Cushion Site is not available to any Users previously removed from the Cushion Site by Cushion, for any reason.
2. We are granting you a license to use the Cushion Site. Otherwise, we will retain ownership of all portions of the Cushion Site.
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Cushion Site as permitted by the features of the Cushion Site. The Cushion Site includes graphics, text, music, audio clips, videos, and other content provided by Cushion and our third-party service providers. You acknowledge that you do not obtain any ownership of such content. You may use such content only for private, noncommercial purposes and solely to the extent permitted by the functionality of the Cushion Site. Cushion may terminate this license at any time for any reason or no reason. Cushion reserves all rights not expressly granted herein in the Cushion Site and the Cushion Content (as defined below).
3. When you sign up to use Cushion, you will open an account. We ask that you follow the basic guidelines provided below when using your account.
Your Cushion account gives you access to the services and functionality that we may establish and maintain from time to time, in our sole discretion. We may maintain different types of accounts for different types of Users. You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information, and you must keep this information up to date and current. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify Cushion immediately of any breach of security or unauthorized use of your account. Cushion will not be liable for any losses caused by any unauthorized use of your account.
4. Please do not do harmful or illegal things on the Cushion Site. We describe some of the things you may not do below.
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Cushion Site in any medium, including without limitation by any automated or non-automated “scraping”; (ii) deciphering, decompiling, disassembling, reverse engineering or otherwise attempting to derive any source code or underlying ideas or algorithms of any part of the Cushion Site; (iii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc.; (iv) transmitting spam, chain letters, or other unsolicited email; (v) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Cushion Site; (vi) uploading invalid data, viruses, worms, or other software agents through the Cushion Site; (vii) collecting or harvesting any personally identifiable information, including account names, from the Cushion Site; (viii) using the Cushion Site for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity, or creating a username that is vulgar or obscene (as determined in Cushion’s sole discretion); (x) interfering with the proper working of the Cushion Site; (xi) accessing any content on the Cushion Site through any technology or means other than those provided or authorized by the Cushion Site; or (xii) bypassing the measures we may use to prevent or restrict access to the Cushion Site, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Cushion Site or the content therein.
We may, without prior notice, change the Cushion Site; stop providing the Cushion Site or features of the Cushion Site, to you or to Users generally; or create usage limits for the Cushion Site. We may permanently or temporarily terminate or suspend your access to the Cushion Site without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you will continue to be bound by this Agreement.
5. When you use Cushion, you will be able to upload and save your content (such as your invoices). You will own all of that content. We ask that you do not upload anything illegal, offensive or that you are otherwise not permitted to upload.
The Cushion Site allows Users to upload, post or share content such as profile information, text, images, invoices, budgets, timelines, comments, questions, and other content or information (any such materials a User submits, posts, displays, or otherwise makes available on the Cushion Site is referred to as “User Content”). We claim no ownership rights over User Content created or made available by you. Cushion has the right (but not the obligation) in its sole discretion to modify, reject, or remove any User Content that is submitted to or shared via the Cushion Site, without liability or obligation to you. Cushion shall not be liable for any loss of User Content or other data made available to the Cushion Site.
Posting or otherwise providing to the Cushion Site or any other User any harmful, obscene, or otherwise objectionable User Content (as determined by Cushion in its sole discretion) is strictly prohibited. Without limiting the foregoing, you agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury to you, or to any other person; (ii) may create a risk of any other loss or damage to any person or property; (iii) may constitute or contribute to a crime or tort; (iv) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, or otherwise objectionable; (v) contains any information or content that is illegal; (vi) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (vii) contains any information or content that you know is not correct and current. You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
Cushion takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts, sends, or otherwise makes available over the Cushion Site. You acknowledge that your User Content may contain metadata or other information that may be accessible to anyone with access to your User Content.
6. By posting to Cushion, you grant Cushion a license to use your content in order to better your experience at Cushion.
By posting, uploading, sharing, or otherwise making available any User Content on or through the Cushion Site, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Cushion a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Cushion Site and Cushion’s (and its successors’ and affiliates’) business.
7. We own all of the Cushion Site, other than any of the content you upload. Please do not modify or otherwise sell or distribute any of the Cushion Site to others.
Except for your User Content, the Cushion Site and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “Cushion Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Cushion and its licensors (including other Users who post User Content to the Cushion Site). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, download, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Cushion Content. Use of the Cushion Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
8. We want to hear from you how we can improve your Cushion experience.
You may choose to or we may invite you to submit comments or ideas about the Cushion Site, including without limitation about how to improve the Cushion Site or our products (“Ideas”). By submitting any Idea, you agree that your disclosure will not place Cushion under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Cushion does not waive any rights to use similar or related ideas previously known to Cushion, or developed by its employees, or obtained from sources other than you.
9. When you sign up for Cushion, you will be provided with a free trial period, where you can use Cushion without paying. After that, we charge a monthly or annual fee for using Cushion.
Cushion may add new services for additional fees and charges, or add or amend fees and charges for existing services, at any time in its sole discretion. Any change to Cushion’s pricing or payment terms shall become effective in the billing cycle following notice of such change to you as provided in this Agreement.
You may cancel your Cushion account at any time; however, there are no refunds for cancellation. In the event that Cushion suspends or terminates your account or this Agreement for your breach of this Agreement, you understand and agree that you shall receive no refund or exchange for any unused time on a subscription, any license or subscription fees for any portion of the Cushion Site, any content or data associated with your account, or for anything else.
All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Cushion Site must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction with the Cushion Site at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.
10. Cushion allows you to accept payment from customers directly on our site.
12. Security is also really important to us at Cushion, and we are taking steps to protect your content from breach. But security breaches do happen.
Cushion cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
14. In the event that you’re not using Cushion as we are asking you to, you may need to indemnify Cushion for any damages that result from your use.
You agree to defend, indemnify and hold harmless Cushion and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Cushion Site, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) your User Content or any that is submitted via your account; or (vi) any other party’s access and use of the Cushion Site with your unique username, password or other appropriate security code.
15. We do everything we can at Cushion to make sure Cushion functions properly, but we cannot promise that it will function perfectly at all times.
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CUSHION OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, CUSHION, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
CUSHION DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE CUSHION SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND CUSHION WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW EXCLUSIONS AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
16. In the event that there is a dispute between us (and we really hope there never is), Cushion will only be liable to you for your direct damages up to a certain amount.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CUSHION, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL CUSHION BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSHION ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL CUSHION, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO CUSHION HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE DATE THE LAST CAUSE OF ACTION AROSE, OR $20.00, WHICHEVER IS GREATER. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF CUSHION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
The Cushion Site is controlled and operated from facilities in the United States. Cushion makes no representations that the Cushion Site is appropriate or available for use in other locations. Those who access or use the Cushion Site from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Cushion Site if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Cushion Site are solely directed to individuals, companies, or other entities located in the United States.
17. In the event of a dispute (and we really hope there never is), Cushion will arbitrate the dispute in New York. This means that by using Cushion you are waiving your rights to a jury trial.
You agree that: (i) the Cushion Site shall be deemed solely based in New York; and (ii) the Cushion Site shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than New York. This Agreement shall be governed by the internal substantive laws of the State of New York, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in New York, New York for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that New York, New York is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM CUSHION. For any dispute with Cushion, you agree to first contact us at firstname.lastname@example.org and attempt to resolve the dispute with us informally. In the unlikely event that Cushion has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, Inc. (“JAMS”), under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at jamsadr.com. The arbitration will be conducted in New York, New York, unless you and Cushion agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this section shall be deemed as preventing Cushion from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND CUSHION ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
18. Sometimes Cushion may change this Agreement. We will try to let you know as soon as we do.
19. Here is some more information you should know.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Cushion without restriction. Any attempted transfer or assignment in violation hereof shall be null and void. This Agreement, together with any amendments and any additional agreements you may enter into with Cushion in connection with the Cushion Site, shall constitute the entire agreement between you and Cushion concerning the Cushion Site. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Cushion’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
20. We want to hear from you!
Please contact us at email@example.com with any questions regarding this Agreement.