Terms of Use

https://www.tamarakumbula.com

Effective Wednesday, 05 August 2020

Welcome to Tamarakumbula.com! By using this Site and the Services, in addition to any Additional Policies applicable to any particular features, Content and functionality of the Services (incorporated into the Terms by reference), offered by Tamarakumbula.com, Users agree to be bound by these Terms.

IMPORTANT NOTICE: AGREEMENT TO ARBITRATION. BY AGREEING TO THESE TERMS, USERS AGREE TO RESOLVE DISPUTES WITH TAMARAKUMBULA.COM THROUGH BINDING ARBITRATION AND USERS WAIVE CERTAIN RIGHTS TO PARTICIPATE IN CLASS ACTIONS (AS DETAILED IN THE DISPUTE RESOLUTION, ARBITRATION AND CLASS ACTION WAIVER IN SECTION 19 BELOW).

Tamarakumbula.com may amend the Terms at any time in its sole discretion by posting a revised version of the Terms. Unless stated otherwise, access to or continued use of the Services after the effective date of any revised Terms constitutes your acceptance of the revised Terms. If We make any material change to these Terms, We will notify Users by posting a notice on Our Site, through the Services, or by other means We deem appropriate.

Additional Policies

The following policies and guidelines are incorporated into the Terms by Reference.

• Privacy Policy
• Cookies Policy

1. What is Tamarakumbula.com?

Tamarakumbula.com is an online platform that sells and markets Tamara Kumbula’s music and other work.

2. User Obligations

We grant you a limited, non-exclusive, non-transferable, and revocable license to use Our Services—subject to the Terms and the following restrictions in particular:

1. You are responsible for your account. To use many of the Services, you will need to register and create an account with a username and password. You must provide us with accurate and complete information, and you must update your account information as needed to keep the information accurate and complete. You may not impersonate anyone else, choose a username that may offend someone, or violate any individual’s rights. You are solely responsible for maintaining the confidentiality of your account and for all activities associated with or occurring under your account. If you suspect or discover any unauthorized use of your account, you should notify Tamarakumbula.com immediately by contacting us here. We are not responsible for any loss or damage arising from your failure to comply with the foregoing requirements or as a result of use of your account with or without your knowledge.
2. Terminating your account. You may submit a request to terminate your account by contacting us here. This will not automatically delete User Content. We may need to retain certain information as required by law or as necessary for Our business purposes. These Terms, including our rights to User Content, survive termination of an account.
3. You must be 18 years old. You must be 18 years or older to sign up for an account and use Our Services. Outside of the European Economic Area (“EEA”), minors between the age of 13 and 18 years are only permitted to use Our Services through an account owned by a parent or legal guardian where the parent has provided affirmative consent and under their direct supervision. Children under 16 residing in the EEA are not permitted to access the Site or use the Services . You are responsible for any and all account activity conducted by a minor on your account.
4. Follow the law and Our policies. You may not take any action that infringes or violates other people’s rights, violates the law, or breaches any contract or legal duty you may have toward any party. You may not offer Perks that are illegal, violate any of Tamarakumbula.com’s policies, rules, or guidelines, or violate any applicable law, statute, ordinance, or regulation. Be truthful. Do not post information you know is false, misleading, or inaccurate. Do not do anything deceptive or fraudulent.
5. Respect the rights of others. You may not threaten, abuse, harass, defame, or engage in behavior that is libellous, tortious, obscene, profane, or invasive of another’s privacy.
6. Avoid spam and unsolicited communications. You may not distribute unsolicited or unauthorized advertising or promotional material, or any junk mail, spam, or chain letters. Do not run mail lists, listservs, or any kind of autoresponder or spam on or through the Site.
7. Respect the property of others. Do not distribute software viruses or any other programs designed to interfere with (1) the proper function of any software, hardware, or equipment on the Site or (2) the use of the Site by any other User.
8. Do not engage in activities that affect the functioning of the Site. You may not bypass any measures that We have put in place to secure Our Site or Services, take actions to gain unauthorized access to any system, data, passwords, or other Tamarakumbula.com or User information or Services, reverse engineer or take apart any aspect of the Services to access any underlying information, or use any kind of software to “crawl” or “spider” any part of the Site.
9. Fees. There are no fees for creating an account on the Site. Transfer fees, or bank delivery fees, are also applied each time Tamarakumbula.com sends funds to a users’ bank account. The transfer fees/bank deliver fees are effective on the date that they are posted.

Should you violate any of the Terms of Use, We reserve the right to terminate, suspend, or take any other action related to your account at Our sole discretion. You may not access Our Site or Services if We have prohibited you from doing so.

3. Account Owner Obligations

As an account Owner/Site User, you understand that you are entering into separate legal agreements with Tamarakumbula.com and the following rules apply (in addition to the all other Terms and Additional Policies).

1. Make good faith efforts to fulfil all your obligations
2. Immediately notify us if there are obstacles or delays.
3. Be responsive. Respond promptly and truthfully to all questions posed by us and any questions or requests Tamarakumbula.com makes.
4. Updates. Provide substantive and quality updates at least once a month to us.
5. Comply with Laws. Comply with all applicable laws and regulations in the use of Contributions and delivery of Perks.
6. Be Truthful and Transparent. Account Owners should be ready, willing, and able to substantiate claims your account makes, including but not limited to product features and capabilities, the stage of product development, and timelines for delivery. If you are unable to substantiate claims, Tamarakumbula.com may terminate your account, withhold funds, or other actions to enforce its rights under this Agreement and applicable law.
7. Respect Privacy. When you use the Services by creating an Account, you may receive information about other Users, including personally identifiable information (“PII”), such as names, e-mail addresses, and physical addresses. This information is provided to you purely for the purpose of fulfilling the Perks for the applicable Account and other Services, and may not be used or disclosed for other purposes, including cross-promotional marketing, without separate, verifiable consent from the User obtained independently from Tamarakumbula.com or the Service. You will maintain, and be required to produce if requested, records of all such verifiable consent.
   1. Comply with EEA Data Controller Obligations. As a Account Owner, you will independently fulfil all duties required of data controllers under applicable EEA data protection law (such law shall include, but not be limited to, the EU General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”); (iii) the EU e-Privacy Directive (Directive 2002/58/EC), including subsequent variations, such as the Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (“ePrivacy Regulation”), if enacted).
   2. Your data controller duties include:
      1. Determining and qualifying the necessary legal basis or bases for your collection or processing of personal information;
      2. Managing and reporting security incidents;

• Transfers;

1. Entering into contracts with only with data processors that provide adequate protections for personal data and including appropriate contractual language;
2. Maintaining records of your data processing activities;
3. Conducting any required data protection impact assessments; and

• Implementing and maintaining all measures required pursuant to Article 32 of the GDPR.

• Respond to EEA Data Subject Requests. You and Tamarakumbula.com will have an independent obligation to respond to any requests received by either of us from EEA data subjects regarding personal data, including without limitation, those set forth in Chapter III of the GDPR. The party that receives the data request is responsible for responding to the request. Account Owner and Tamarakumbula.com shall reasonably cooperate and assist each other with these requests, to the extent that is legally permissible.

1. Comply with the CCPA as a Business. As an Account Owner, you will independently fulfill all duties required of “businesses” under the California Consumer Privacy Act (“CCPA”), including its implementing regulations. As a “business” under the CCPA, you will, without limitation: (1) provide notices to consumers as required by the CCPA, including providing a privacy policy and a notice of financial incentives, as applicable; (2) respond and honor access and deletion requests of consumers; (3) comply with all CCPA requirements related to the “sale” of personal information, as that term is defined in the statute; (4) implement reasonable security as required by the CCPA; (5) maintain records as required by the CCPA, including records related to your receipt and responses to consumer access and deletion requests; and (6) enter into appropriate contracts with vendors where required by the statute. For clarity, the party that receives a consumer request related to the CCPA is responsible for responding to the request. Account Owner and Tamarakumbula.com shall reasonably cooperate and assist each other with these requests, to the extent that is legally permissible.

1. Taxes. Taxing authorities may classify Contributions as taxable income to the Account Owner and any beneficiary who will receive funds directly from the applicable Account. Tamarakumbula.com may ask for the tax identification number (TIN) of Account Owners and any beneficiaries so that We may report taxable income to the relevant taxing authorities. Tamarakumbula.com will provide Account Owners with a tax document if required by the relevant taxing authorities. Tamarakumbula.com is unable to provide any User or third party with tax advice and suggests that such Users or third parties consult with tax advisors of their choice. The shipment of Perks to Contributors may expose Account Owners and Contributors to sales and use tax obligations.
2. Respond to Requests from Tamarakumbula.com for Information about Your Account. Tamarakumbula.com does not guarantee any Accounts or undertake the duty to investigate or moderate any statements made by an Account Owner (see section 4 below). However, Tamarakumbula.com may, but is not required to and undertakes no obligation to, request information from Account Owners to investigate possible breaches of this Agreement. The information Tamarakumbula.com may request includes, but is not limited to, information to support Account statements, evidence that the Account Owner is taking actions to deliver promised products, productions and shipping timelines and information, source documentation to substantiate product claims and Account promises, product prototypes, and personal information to confirm the identity of Account Owners, vendors, and suppliers. You agree that Tamarakumbula.com may employ third parties to assess the documents and your Account. You agree to provide this information to Tamarakumbula.com upon request. Failure to provide any of the requested information within 14 days, or a longer time provided by Tamarakumbula.com in writing, shall be deemed a material breach of this Agreement. 
3. com Reserves the Right to Withhold Funds. Account Owners are not guaranteed to receive monies made to an Account. There may be a delay between the end of an Account and Our remittance of Contributions to an Account Owner for a number of reasons including, but not limited to, refunds, chargeback disputes, fraud, Terms or other policy violations, or any other situation. For example, Tamarakumbula.com may withhold Contributions made to an Account if the Account Owner violates any Terms (as determined by Tamarakumbula.com in its sole discretion). Additionally, Tamarakumbula.com may withhold funds pending the receipt and evaluation of information requested through paragraph (j) above or during the pendency of any investigation Tamarakumbula.com may undertake into your account. If you do not provide information within the requested time or are not able to substantiate claims made in your Account, Tamarakumbula.com may terminate your Account and account and avail itself of any remedies available to it under this Agreement or applicable law. Tamarakumbula.com may also withhold funds from Account Owners for any other breach of this Agreement. Tamarakumbula.com may also seek reimbursement from an Account Owner by any other lawful means, including by using third-party collection services.
4. Refunds. Tamarakumbula.com offers a limited refund to Contributors in accordance with Our Refund Policy (stated on each sale/invoice. Refunds outside of Our Refund Policy must be handled by the Account Owner, and Tamarakumbula.com has no obligation to provide any refunds or become involved with any dispute between an Account Owner. Tamarakumbula.com reserves the right to terminate User Accounts and remove Accounts for any abuse of the Refund Policy. Tamarakumbula.com reserves its right to issue refunds at its own discretion outside of the Refund Policy.

Please remember that as an Account Owner, you are solely responsible for fulfilling the obligations of your Account and delivering Perks. If you are unable to perform on this, or any of your other legal obligations, you may be subject to legal action by Contributors.

1. Credit Card Charges. When you create to an Account, your card will be charged the amount of the Contribution after you confirm and submit your payment information.
2. Communications with Account Owners. Once you have opened an Account, the Account Owners may need to contact you to obtain additional information such as shipping address, specific preferences for a Perk (for example, color or size of a t-shirt), or may ask for feedback on the Account or the Perk. In some instances, to receive the Perk, you may need to provide requested information within a specific time frame to receive the Perk, not doing so may result in your forfeiting the Perk. Account Owners should not ask for information that is not required to fulfil a Perk, including personal information such as Social Security numbers or credit card/banking information. Please contact us here if you receive a request for information that appears to be excessive.
3. Taxes are your responsibility. Contributors bear the sole responsibility for determining how to treat their Contributions and receipt of any Perks for tax purposes. Tamarakumbula.com does not offer any advice or take any responsibility for how Contributors treat their Contributions or for any financial consequences arising out of such treatment.

4. com’s Role
   1. We do not endorse any User Content. Tamarakumbula.com provides the platform for creation of Accounts and interaction of Users. We do not screen any Accounts or endorse any User Content on Our site. Likewise, Tamarakumbula.com does not undertake any duty to investigate or guarantee the truthfulness of any claims made by Account Owners. You should evaluate a Account’s statements before choosing to back the Account.
   2. We may remove User Content or cancel Accounts and refund Contributions in Our discretion. Tamarakumbula.com may remove User Content that violates the Terms at its sole discretion. Removing User Content, terminating an account, or cancelling Accounts and refunding Contributions are not actions We take lightly, and We may take a while to investigate and determine if such actions are warranted. It is at Tamarakumbula.com’s sole discretion whether to discuss the reasons for taking action against any User Content or account.
   3. We may require you to provide information about your Account before disbursing funds. Tamarakumbula.com may, but is not required to, request information from you regarding Accounts. See section 3(j) above for more information.
   4. We do not guarantee Perks or Refunds. Account Owners bear sole responsibility for the delivery of Perks and for the offering of any refunds outside Our Refund Policy.
   5. We do not provide tax or legal advice to Users. Users bear sole responsibility for determining how the applicable laws apply to running an Account, Contributing to an Account, or utilizing any of the Services.
   6. We do not become involved in legal disputes between Users. Tamarakumbula.com bears no liability, and has no obligation to investigate, participate, or become involved, in any dispute between Users, including between Contributors and Account Owners.
   7. You are responsible for your Accounts, even if you engage Our help.com may offer additional services, including helping with drafting Account Content, assisting with the design of Accounts, and referring vendors and other service providers to Account Owners. Any such services will be subject to a separate agreement between the Account Owner and Tamarakumbula.com. Even where We help with your Account, Account Owners bear sole responsibility for the Account and must comply with all obligations in the Terms as the only responsible party for the Account.
5. Our Intellectual Property
   1. com Intellectual Property. Tamarakumbula.com’s Services, Content and Marks, are legally protected in a number of ways, including pursuant to copyright, trademark, service marks, patent, trade secrets, and other U.S. and international intellectual-property laws. You agree to respect all copyright and other legal notices, information, and restrictions contained in any Tamarakumbula.com Content, Services, or Marks accessed through the Site or the Services. You agree not to change, translate, or otherwise create derivative works of the Services.
   2. Limited User Rights; License to Tamarakumbula.com Content. Tamarakumbula.com grants you a limited license (that is temporary, non-exclusive, non-sublicensable, and non-transferrable) to access and use User Content and Tamarakumbula.com Content solely for use of the Services in accordance with these Terms. You may not reproduce, redistribute, transmit, assign, sell, broadcast, rent, share, lend, modify, adapt, edit, create derivative works of, license, or otherwise transfer or use any User Content or Tamarakumbula.com Content unless We give you express written permission to do so. We reserve the right to revoke this limited license to access and use User Content and Tamarakumbula.com Content at any time and in our sole discretion.
   3. com Trademark Policy. You may use the Tamarakumbula.com Marks only in accordance with Our Trademark Policy.
6. Your Intellectual Property

Your User Content remains your property. When you submit User Content to the Site or via the Services, you agree to the following terms:

1. You allow us to use your User Content. You grant us a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sublicensable, and transferable right to use, exercise, commercialize, and exploit the copyright, publicity, trademark, and database rights with respect to your User Content.
2. We can make changes to or delete your User Content. You grant us the right to make changes, edits, modifications, translations, formatting, or delete your User Content.
3. You have all legal rights to your User Content. You represent and warrant that: (1) you have all licenses, rights, consents, and permissions necessary to grant the rights set forth in these Terms to Tamarakumbula.com with respect to your User Content; (2) your User Content does not and will not infringe any third party’s intellectual property rights, proprietary rights, privacy rights, confidentiality, rights of publicity or otherwise violate these Terms or applicable law; and (3) Tamarakumbula.com does not need to obtain any licenses, rights, consents, or permissions from, or make any payments to, any third party for any use of your User Content, or have any liability to a User or any other party as a result of Our use or exploitation of your User Content.

7. How to report Copyright and covered other Intellectual Property issues

We take intellectual property rights very seriously. We comply with intellectual property laws and industry best practices to maintain the integrity of Our Site and Services. The Digital Millennium Copyright Act (“DMCA”) sets out the procedure to report notices of alleged copyright infringement. Tamarakumbula.com also maintains policies concerning claims of trademark and patent infringement. We will respond to notices of alleged infringement in accordance with the law, as set forth in Our Intellectual Property Policy here. We reserve the right, in our sole discretion, to delete or disable User Content that has been alleged to be infringing, as well as to terminate User accounts associated with infringers.

For further details, or to submit a claim of copyright infringement, please visit Our Intellectual Property Policy here. We will only respond to notices of alleged infringement submitted in compliance with Our Intellectual Property Policy.

8. com’s Rights Concerning User Accounts; Termination
   1. We reserve the right to monitor, terminate, suspend, or delete any User Account at any time in Our sole discretion. We have no obligation to comment on any reasons for account monitoring, termination, suspension, or deletion.
   2. We have no liability to you or third parties for any use of the Services associated with your account or Account. Upon suspension or termination of your account, you must cease all use of the Services and User Content. Your representations and warranties shall survive termination.
   3. com reserves the right to suspend or terminate an Account if it does not comply with this agreement or in its sole discretion. In the event of termination, Tamarakumbula.com may refund any and all Account funds received by an Account Owner to backers and may seek reimbursement from you for any funds you have already received from Tamarakumbula.com. Tamarakumbula.com may also avail itself of any of the remedies provided for in this Agreement and any remedies available to enforce its rights under this Agreement or applicable law.
9. Payment Services

Credit card payment processing services for Account Owners on Tamarakumbula.com are provided by Stripe, Inc. (“Stripe“) and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement“). As an Account Owner, you agree to be bound by the Stripe Services Agreement, as may be modified by Stripe from time to time. As a condition to Tamarakumbula.com enabling credit card payment processing services through Stripe, you agree to provide Tamarakumbula.com accurate and complete information about yourself and your business, and you authorize Tamarakumbula.com to share any such information with Stripe, as well as transaction information related to your use of the Stripe payment processing services. In all cases, standard credit card or other third-party processing fees apply in addition to any Platform Fees. We are not responsible for the performance of any third-party credit card processing or third-party payment services.

10. System Outages and Maintenance

The Site or Services may be unavailable for scheduled maintenance and other reasons, including unplanned outages and other malfunctions. We are not responsible if the Site or Services are unavailable, or if you lose any data, information, or User Content for any reason.

11. Unsolicited Idea Submissions

We appreciate hearing from Our Users and welcome their comments or suggestions. But ideas that you submit may be similar or identical to internal submissions or submissions received from another User or third party. When We refer to a “submission” in this paragraph, We mean: any submission, comment, or suggestion (including, but not limited to, ideas, products, or services, know-how, concepts, suggested changes, additions, or improvements) sent to us via the Site or in any other manner about an existing product, service, or feature on the Tamarakumbula.com platform (“Unsolicited Idea Submission”). If you send us an Unsolicited Idea Submission, you agree as follows:

1. All Unsolicited Idea Submissions are non-confidential and non-proprietary and will be treated as such.
2. By submitting an Unsolicited Idea Submission, you hereby grant Tamarakumbula.com a perpetual, irrevocable, worldwide, non-exclusive, royalty- free, sublicensable and transferable license to use, reproduce, distribute, sell, exploit, prepare derivative works of and display the Unsolicited Idea Submission, including, without limitation, in connection with the Site or Services, and for promoting and redistributing part or all of the Unsolicited Idea Submission (and derivative works thereof) in any media formats and through any media channels whether now known or hereafter developed, without payment or accounting for the Unsolicited Idea Submission and,
3. We are under no obligation to evaluate, review, or use any Unsolicited Idea Submission.

12. Indemnity

You agree to defend, indemnify and hold harmless Tamarakumbula.com, Our subsidiaries and affiliated companies, and Our officers, directors, employees, partners, contractors, representatives, agents, and third party providers from and against any and all claims, causes of action, damages, obligations, losses, liabilities, costs or debt, and expenses (including reasonable attorneys’ fees and costs) and all amounts paid in settlement arising from or relating to, breach of these Terms or violation of any applicable laws. We reserve the right, in Our sole discretion and at Our own expense, to assume the exclusive defense and control of any matter for which you have agreed to indemnify us and you agree to assist and cooperate with us as reasonably required in the defense or settlement of any such matters.

13. No Warranty

TAMARAKUMBULA.COM HAS NO FIDUCIARY DUTY TO ANY USER. THE SERVICES, TAMARAKUMBULA.COM CONTENT, USER CONTENT, AND ANY OTHER MATERIALS MADE AVAILABLE OR THROUGH THE USE OF THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR COURSE OF PERFORMANCE. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, TAMARAKUMBULA.COM AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON- INFRINGEMENT, ACCURACY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. TAMARAKUMBULA.COM AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS DO NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR THE SERVER(S) ON WHICH THE SERVICES ARE HOSTED, OR ANY SERVICES AVAILABLE ON ANY THIRD PARTY PLATFORM ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO OPINION, ADVICE OR STATEMENT OF TAMARAKUMBULA.COM OR ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, AGENTS, MEMBERS OR VISITORS, WHETHER MADE THROUGH THE USE OF THE SERVICES, OR ON THIRD-PARTY PLATFORMS OR OTHERWISE, SHALL CREATE ANY WARRANTY. YOUR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION ANY SERVICES PROVIDED ON ANY THIRD-PARTY PLATFORM, ARE ENTIRELY AT YOUR OWN RISK.

14. Disclaimer of Liability
    1. Use the Services at your own risk. We make no representations about the quality, safety, morality or legality of any Account, Perk or Contribution or the truth or accuracy of User Content posted on the Services. We do not guarantee the fulfilment or the performance of any Perks, or that Contributions will be used as described in the Account. We do not control or endorse User Content posted on the Site or in any Services and, as a result, do not guarantee in any manner the reliability, validity, accuracy or truthfulness of such User Content. Tamarakumbula.com is not liable for any damages or losses related to your use of the Services. We do not become involved in disputes between Users, or between Users and any third party relating to the use of the Services.
    2. You release us from all claims. When you use the Services, you release Tamarakumbula.com from claims, damages, and demands of every kind – known and unknown, suspected or unsuspected, disclosed or undisclosed – arising out of or related to the Services. All Content that you access or use through the Services is entirely at your own risk and you solely are responsible for any resulting damage or loss to any party.
    3. YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICES AND USER CONTENT, AND ANY CONTACT YOU HAVE WITH OTHER USERS OR THIRD PARTIES, WHETHER IN PERSON OR ONLINE, REMAINS WITH YOU. NEITHER TAMARAKUMBULA.COM NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE (WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT TAMARAKUMBULA.COM HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE) FOR: (A) ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL; (B) SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE; (C) THE COST OF SUBSTITUTE PRODUCTS OR SERVICES; (D) ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS; (E) THE USE OF OR INABILITY TO USE THE; (F) ANY COMMUNICATIONS OR OTHER INTERACTIONS WITH OTHER USERS OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES; OR (G) YOUR ACCOUNTS OR CONTRIBUTIONS.

IN NO EVENT SHALL THE TOTAL, AGGREGATE LIABILITY OF TAMARAKUMBULA.COM AND ITS AFFILIATES AND SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, ARISING FROM OR RELATING TO THE TERMS, SERVICES, OR USER CONTENT, OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO TAMARAKUMBULA.COM BY YOU HEREUNDER, OR ONE HUNDRED US DOLLARS IF NO SUCH PAYMENTS HAVE BEEN MADE.

THE LIMITATION OF LIABILITY DESCRIBED ABOVE SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY.

15. Export Compliance

You agree to comply with all applicable import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, you are solely responsible for compliance related to the manner in which you use any third-party products funded through the website. Further, pursuant to 15 C.F.R. § 758.6(a)(1), you are hereby advised that for any items that are physically shipped to you, the items are controlled by the U.S. Government and authorized for export only to the country of ultimate destination for use by the ultimate consignee or end-user(s) herein identified. They may not be resold, transferred, or otherwise disposed of, to any other country or to any person other than the authorized ultimate consignee or end-user(s), either in their original form or after being incorporated into other items, without first obtaining approval from the U.S. government, or as otherwise authorized by U.S. law and regulations.

You agree to indemnify Tamarakumbula.com for any penalties, fines, attorneys’ fees and other amounts that may be incurred by Tamarakumbula.com that arise out of or are related to your failure to comply with this Section.

16. Waiver and Release (for CA Residents)

California residents must, as a condition of this Agreement, waive the applicability of California Civil Code Section 1542 for unknown claims which states: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” You waive this section of the California Civil Code and any similar provision in law, regulation or code that has the same effect or intent as the foregoing release.

17. Legal Disputes Not Subject to Arbitration Will Be Handled In San Francisco, CA and Subject to California Law.

Tamarakumbula.com is based in San Francisco, California. For any action not subject to arbitration, you and Tamarakumbula.com agree to submit to the personal jurisdiction of a state court located in San Francisco, CA or the United States District Court for the Northern District of California. The Terms and the relationship between you and Tamarakumbula.com shall be governed in all respects by the laws of the State of California, without regard to its conflict of law provisions.

18. Legal Disputes Subject to Arbitration, Dispute Resolution, and Class Action Waiver

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

You and Tamarakumbula.com agree that this arbitration undertaking is made pursuant to or in connection with a transaction involving interstate commerce, and shall be governed by and construed and interpreted in accordance with the Federal Arbitration Act at 9 U.S.C. Section 1, et seq. Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.

This Section is intended to be interpreted broadly and governs any and all disputes between us, including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to interactions between users); and claims that may arise after the termination of these Terms. The only disputes excluded from this Section are the litigation of certain intellectual property and small court claims, as provided below.

By agreeing to these Terms, you agree to resolve any and all disputes with Tamarakumbula.com as follows:

Pre-Arbitration Dispute Resolution : For any and all disputes, claims, or controversies you may have against Tamarakumbula.com (“Disputes”), whether pursued in court or arbitration, you must first give us an opportunity to resolve the Dispute informally by contacting us through this link with the following information: (1) your name, (2) your address, (3) a written description of your claim, and (4) a description of the specific relief you seek. If we do not resolve the Dispute within forty-five (45) days after receiving your notification, then you may pursue resolution of the Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.

Arbitration Procedures :

If the Dispute has not been resolved and is not subject to the exclusions provided above, then either party may initiate binding arbitration as the sole means to resolve all Disputes, subject to the terms set forth below.

All Disputes shall be resolved before a single arbitrator in accordance with the JAMS Streamlined Arbitration Rules and Procedures for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000, in each case applying the rules and procedures in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. You can find the JAMS rules and procedures here at this link.

To start an arbitration with JAMS, you must do the following: (1) write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (2) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, 2 Embarcadero Center, Suite 1500, San Francisco, CA 94111; and (3) send three copies of the Demand for Arbitration to Tamarakumbula.com at 965 Mission St, 6th Floor, San Francisco, CA 94103, ATTN: Legal Department.

You will be required to pay $250 to initiate an arbitration against us. If the arbitrator finds the arbitration to be non-frivolous, Tamarakumbula.com will pay all other fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.

Location of Arbitration: If you live in the United States, you may initiate and litigate the arbitration in your hometown area or through the JAMS office located in San Francisco, California. If you live outside the United States, you must initiate and litigate the arbitration through the JAMS office located in San Francisco, California. Either party may ask that the arbitration including the hearings, arguments, and all conferences be conducted telephonically or by video conference (e.g., Skype).

The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms, Additional Policies, or the Privacy Policy, including but not limited to any claim that all or any part of these Terms, Additional Policies, or Privacy Policy is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered in any court with jurisdiction.

The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.

CLASS ACTION WAIVER: The parties agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. THIS MEANS THAT YOU AND TAMARAKUMBULA.COM AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A LEAD OR REPRESENTATIVE CLASS PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. HOWEVER, THE PARTIES EXPRESSLY AGREE THAT SEPARATE INDIVIDUAL ARBITRATIONS SHALL BE CONSOLIDATED, UPON REQUEST BY EITHER PARTY, IF SUCH SEPARATE INDIVIDUAL ARBITRATIONS RELATE TO OR ARISE OUT OF THE SAME OR SUBSTANTIALLY THE SAME TRANSACTION(S) OR OCCURRENCE(S). CONSOLIDATION MEANS THAT ANY AND ALL SEPARATELY INITIATED ARBITRATIONS THAT RELATE TO OR ARISE OUT OF THE SAME OR SUBSTANTIALLY THE SAME TRANSACTION(S) OR OCCURRENCE(S) ARE ALL HEARD BY A SINGLE ARBITRATOR IN A SINGLE ARBITRATION. IF EITHER PARTY REQUESTS CONSOLIDATION OF MULTIPLE ARBITRATIONS, THEN THE PARTIES TO THE CONSOLIDATED CASE(S) WILL BE DEEMED TO HAVE WAIVED THEIR RIGHT TO DESIGNATE AN ARBITRATOR AS WELL AS ANY CONTRACTUAL PROVISION WITH RESPECT TO THE SITE OF THE ARBITRATION. THE FOLLOWING FACTORS MAY BE CONSIDERED IN REQUESTING A CONSOLIDATION OF ARBITRATIONS:

• The arbitrations have a common question of law or fact;
• The issues in the multiple arbitrations are largely identical;
• There are common claims, disputes, defenses, and relationships between or among the parties in the different arbitrations;
• One or more parties is named in multiple pending arbitrations;
• The arbitrations relate to the same account featured on Tamarakumbula.com’s platform;
• Consolidation will save time and resources;
• One party will be seriously prejudiced by having multiple arbitrations heard separately.

By agreeing to these Terms, you are waiving your right to trial by jury or to participate in a class action. We are also waiving these rights.

Exclusions from Arbitration: Intellectual Property and Small Claims Court Claims: Notwithstanding the parties’ agreement to resolve Disputes through arbitration, either party may (1) bring enforcement actions, validity determinations or claims arising from or relating to misuse, infringement, or misappropriation of intellectual property theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights); and/or (2) seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.

30-Day Right to Opt-Out: You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above. You can opt out of the arbitration and class action waiver provisions set forth above by sending an email from your registered email address on Tamarakumbula.com to us here with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” To opt-out, you must send the email to Tamarakumbula.com with the required language within thirty (30) days of the later of the following: (i) of your creation of an Tamarakumbula.com account or your first transaction with Tamarakumbula.com, whichever is earlier; or (ii) the date of notice from Tamarakumbula.com of a material change to this Section via email to you. To be clear, if you opt out of the arbitration and class action waiver provision, you will be able to pursue any potential claims in a court of law and can participate in a class action or other class proceeding if you so desire. If you do not opt out properly, you agree to arbitrate. If you opt out of the arbitration and class action waiver provisions, we will not be subject to them either with respect to any disputes with you, meaning Tamarakumbula.com can also litigate in a court of law and be subject to class action litigation.

Severability: If a court or arbitrator decides that any portion of this Section regarding Dispute Resolution, Arbitration and Class Action Waiver is invalid or unenforceable, then the portion shall be severed from the Terms and/or deemed modified, only to the extent necessary to make it lawful. Such invalidity shall not affect the enforceability of any other provisions of the Terms that are not invalid or unenforceable. To affect the modification of the portion, the portion shall be deemed deleted, added to, and/or rewritten, whichever shall most fully preserve the intentions of the parties as originally expressed herein.

The Terms and the relationship between you and Tamarakumbula.com shall be governed in all respects by the laws of the State of California, without regard to its conflict of law provisions. This “Dispute Resolution, Arbitration and Class Action Waiver” section shall survive any termination of your account, these Terms, or the Services.

19. Definitions
    • “Account Owners” or “Accounters” are those Users who raise funds through the Site and Services;

1. “Accounts” are Account Owners’ fundraising accounts through the Services;
2. “Content” refers to all software, technology, designs, materials, information, communications, text, graphics, links, electronic art, animations, illustrations, artwork, audio clips, video clips, photos, images, reviews, ideas, and other data or copyrightable materials or Content, including the selection and arrangements thereof offered through the Services;
3. “Contributors” or “Backers” refers to those Users contributing funds to Accounts;
4. “Contributions” refers to funds donated to Accounts by Contributors;
5. “DMCA” refers to the Digital Millennium Copyright Act of 1998, including any amendments;
6. “com,” “We, ” “Our, ” or “Us” refers to Tamarakumbula.com, Inc., a Delaware corporation, together with its parents, subsidiaries, affiliates, agents, representatives, consultants, employees, officers, and directors;
7. “com Content” refers to Content provided by Tamarakumbula.com to Users in connection with the Services, including, without limitation, the software, the products and the site;
8. “Infringement” refers to the unauthorized or not permitted use of copyrighted material or other intellectual property rights;
9. “Marks” refers to the trademarks, service marks, and logos used and displayed throughout the Services or in any or in any Tamarakumbula.com Content;
10. “Perks” refers to the gifts or rewards in the form of tangible items or intangible services offered by Account Owners to Contributors;
11. “PII” refers to personally-identifiable information, as that term is defined under all applicable laws;
12. “Privacy Policy” refers to Tamarakumbula.com’s Privacy Policy, found at https://www.tamarakumbula.com.com/privacypolicy and incorporated herein by reference;
13. “Services” refers to the Site, mobile applications or connected applications, other offerings and services provided on the Site;
14. “Site” refers to the Tamarakumbula.com website(s);
15. “Terms” or “Terms of Use” refers the Terms of Use, Additional Policies, Tamarakumbula.com’s Privacy Policy, all applicable laws, and all conditions or policies referenced here;
16. “User,” “You, ” or ” Your” refers to Account Owners, Contributors or any other visitor to the Site or Users of the Services, either individually or collectively;
17. “User Content” refers to Content uploaded, transmitted or posted to the Services by a User, including User Content in an Account.

20. Full Agreement Between You and Us

These Terms are the entire agreement between You and Tamarakumbula.com with respect to the Services. They supersede all other communications and proposals (whether oral, written, or electronic) between you and Tamarakumbula.com with respect to the Services and govern our relationship. If any provision of these Terms are 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. Tamarakumbula.com’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.

21. Miscellaneous

We may modify or discontinue the Services at any time, in our sole discretion. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms. No waiver of any provision of these Terms shall be deemed a further or continuing waiver of such term or any other term, and Tamarakumbula.com’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. You agree that regardless of any statute or law to the contrary, any claim arising out of or related to the Services must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.

Notwithstanding the foregoing, this statute of limitations shall not apply to residents of New Jersey.