Dirt Monkey

This terms of service agreement (“Terms”) sets forth the terms under which LX Group uses Cymbal (“we,” “our,” or “us”) to provide our messaging services, including our apps, features, software, and website (“Cymbal”).

IF YOU ARE LOCATED IN THE UNITED STATES OR CANADA, EXCEPT WHERE PROHIBITED BY LAW (WHICH MAY INCLUDED THE PROVINCE OF QUEBEC),YOU AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. WE EXPLAIN SOME EXCEPTIONS BELOW. PLEASE REVIEW SECTION 11.

By registering for or using Cymbal, you agree to these Terms.

We issue unique phone numbers or other communication accounts (“Cymbal Numbers”) to individuals and entities or their designees (collectively, “Cymbal Organizations”).

Cymbal Organizations can use Cymbal to message with the individuals who have agreed to message with them (“Cymbal Members”).

Please also read our Privacy Policy, which describes how we collect, use, and disclose information when you use Cymbal.

You are not permitted to use Cymbal (including sending messages to a Cymbal Number), a) if you are under the age of 13, b) you are a child for whom parental consent is required to fully use Cymbal under applicable laws, c) we have previously suspended or disabled your account for violations of our terms and policies, d) we do not direct our services to your geographic territory, or e) you are otherwise prohibited under applicable laws from using our services. Certain age requirements may be waived if you’re an Organization and we have received your verified parental consent. If you are using Cymbal on behalf of an organization, then you are entering into these Terms on behalf of the organization, and you represent that you have the authority to bind the organization to these Terms.

You must not use Cymbal to transmit any content or data that is unlawful, that infringes any intellectual property rights. Though we have no obligation to do so, we may access, review, block (including limiting Cymbal Organizations’ ability to access messages), or delete your messages at any time and for any reason, including (i) to provide and develop Cymbal, (ii) if we think your messages violate these Terms, (iii) you have not fully completed registration with Cymbal and/or connected with the relevant Cymbal Organization, and (iv) to comply with applicable law or any request or requirement of a court, law enforcement or other administrative agency or governmental body. For any messages sent or received, we do not guarantee: (a) the suitability or legality of such messages; (b) the truth or accuracy of such messages; (c) the performance or conduct of people on Cymbal (including Cymbal Organizations and Cymbal Members); or (d) who a Cymbal Organization or Cymbal Member permits to access and use Cymbal on their behalf.

By sending messages to a Cymbal Number, registering to become a Cymbal Member, or otherwise using Cymbal, you agree that:

- we may send you account-related messages at the phone number or account you have provided to us or the Cymbal Organization;we may share the registration information you submitted for one Cymbal Organization with other Cymbal Organizations that you agree to message with instead of asking for you that same information again;each Cymbal Organization alone (and not Cymbal) is responsible for determining whether and what messages are sent to you via their Cymbal Number and when those messages are sent (which may be at any time of day, including on weekends or holidays);messages (including the timing and content of messages) sent by Cymbal Organizations may be fully or partially automated;you are responsible for any messaging and data charges that you may incur when messaging with Cymbal Organizations or with us;your consent to receive messages is not a condition of any purchase;Cymbal Organizations may block you from messaging with them via Cymbal at any time, for any reason, without notice;Cymbal Organizations may not see your messages to their Cymbal Number(s) until you fully complete the registration process and connect with them;Cymbal may filter messages from reaching a Cymbal Organization for various reasons, including based on a Cymbal Organization’s settings and where such messages violate our Acceptable Use Policy;some messages may not be delivered (e.g., if there is an outage on the Cymbal or if a carrier blocks content);messages sent via Cymbal may contain links to third-party websites or apps, which may be subject to different terms and conditions and privacy practices, and we are not responsible or liable for their content, products, or services (“Third Party Materials”);you will use only your own phone number or account when messaging a Cymbal Organization (and if we discover that you did not use your own phone number or account, we may suspend or terminate your account access at any time); andif you change or deactivate the phone number or account that you used when signing up to receive messages from a Cymbal Organization, you will email us at hello@cymbal.co within 72 hours to update or remove your information.

If you want to stop receiving messages from a particular Cymbal Number, send a message that says STOP (case insensitive) to that Cymbal Number. For more information about our privacy practices (including information on how to stop receiving messages from all Cymbal Organizations), see our Privacy Policy. You may also request assistance at any time by sending a message that says HELP (case insensitive) to any Cymbal Number or emailing us at hello@cymbal.co.

By registering with Cymbal, you agree that Cymbal may use your information to send you emails, text messages, and other messages, including for Cymbal’s marketing purposes, informational purposes (such as updates to our service), and to suggest other Organizations to follow.

By sending messages to a Cymbal Organization, you grant that Cymbal Organization (including individuals and entities working or affiliated with such Cymbal Organization) a worldwide, royalty-free, sublicensable, transferable, and perpetual license to reproduce, distribute, display, publish, and otherwise use your messages in any way and for any purpose, and you grant us all of the same rights to use your messages for the purpose of operating, providing and improving Cymbal (such as to allow us to deliver your messages to the Cymbal Organization, analyze the messages, and to store your messages on our servers).

You acknowledge and agree that (i) a Cymbal Organization may share your messages publicly (including for marketing purposes); (ii) you have no expectation of privacy with respect to messages you send to a Cymbal Organization; and (iii) we may collect, analyze and use your messages together with your information, including demographic and location information, on an aggregated, de-identified or anonymized basis together with the messages and information of others, for any purpose, including to improve, enhance, further develop and test Cymbal and any of our technology, to create and refine algorithms and other machine learning methods and processes, to identify and predict patterns and trends, and to train and refine machine learning or analytical models or engines.

We and our licensors retain all right, title and interest, including all intellectual property rights, in and to Cymbal and all Cymbal Numbers. Any and all use of our trademarks by you will inure to our benefit and you will not obtain or retain any rights in our trademarks.

You must not (and must not assist or allow others to): (i) reverse engineer, alter, modify, create derivative works from, decompile, or extract code from Cymbal; (ii) send, store, or transmit viruses or other harmful computer code through or onto our servers or systems; (iii) gain or attempt to gain unauthorized access to our servers or systems; (iv) interfere with or disrupt the integrity or performance of our servers or systems; (v) use unauthorized or automated means to create accounts or send messages; or (vi) collect the information of or about our users in any impermissible or unauthorized manner.

We welcome and encourage you to provide us with feedback, comments, and suggestions for improvements to Cymbal (“Feedback“). Any Feedback you submit to us will be owned by us and we may use and exploit that Feedback without restriction for any purpose, without compensation to you.

You may terminate these Terms at any time and for any reason by emailing us at us at hello@cymbal.co and asking us to delete your Cymbal account, and we may suspend or disable your Cymbal account and/or terminate these Terms at any time, for any reason, without advance notice. If we suspend or disable your Cymbal account for a violation of these Terms, you must not create another Cymbal account without our permission.

Regardless of who terminates these Terms, both you and we continue to be bound by sections 3, 4, 6, and 9-16 of these Terms and any other provisions that by their nature are intended to survive termination or expiration of these Terms.

If you believe that anything on Cymbal infringes a copyright that you own or control, please send us a written notice to the email below that meets the requirements set forth in the U.S. Digital Millennium Copyright Act of 1998 (“DMCA”).

hello@cymbal.co

Please note that if you knowingly give false, misleading, or inaccurate information regarding the existence of infringing content, we may suspend your account, and you may face other legal consequences.

If we have taken down any material or content that you believe should not have been removed, you can send us a written counter-notice by email to hello@cymbal.co. Please be sure your counter-notice meets the DMCA requirements.

We may promptly terminate without notice the accounts of users who have been notified of infringing activity, including those who have had messages removed from Cymbal at least three times (“Repeat Infringers”).

The laws of certain jurisdictions, including Quebec, may not allow limitations on implied warranties or conditions. If these laws apply to you, some or all of the below disclaimers might not apply to you.

To the maximum extent permitted by law:

- Cymbal is provided “as is” and “as available” and without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement;

- we do not represent or warrant that (i) Cymbal will always be secure, error-free, or timely; (ii) Cymbal will always function without delays, disruptions, or imperfections; or (iii) any messages you send or receive via Cymbal will be timely or accurate; and

- we take no responsibility and assume no liability for any messages that you, another user, or a third party send or receive via Cymbal. You agree that you may be exposed to messages that might be offensive, illegal, misleading, or otherwise inappropriate, none of which we will be responsible for.

The laws of certain jurisdictions, including Quebec, may not allow the exclusion or limitation of certain damages. If these laws apply to you, some or all of the below limitations might not apply to you.

To the maximum extent permitted by law, we and our shareholders, employees, affiliates, associated companies, licensors, agents, and suppliers (collectively, the “Affiliated Entities”) will not be liable for any indirect, incidental, special, consequential, exemplary, punitive, or multiple damages, or any loss of profits or revenues, whether incurred directly or indirectly, or any loss of data, use, goodwill, or other intangible losses, resulting from (i) your access to or use of or inability to access or use Cymbal; (ii) the conduct or content of other users or third parties via Cymbal; or (iii) unauthorized access, use, or alteration of your messages, even if we have been advised of the possibility of such damages.

Your sole and exclusive remedy for dissatisfaction with Cymbal or any Third Party Materials is to stop using Cymbal. In no event will the liability of us and our Affiliated Entities, in the aggregate, for all claims relating to these Terms or Cymbal, exceed the greater of $100 USD or the amount you paid us, if any, to use Cymbal in the last 12 months.

To the maximum extent permitted by law, you agree to indemnify and hold us and our Affiliated Entities harmless from any losses, including legal fees and expenses, that directly or indirectly result from (i) your messages; (ii) your use of Cymbal; (iii) your violation of any laws or regulations; (iv) third-party claims that you or someone using your password did something that, if true, would violate these Terms; (v) any misrepresentations made by you; or (vi) a breach of any representations or warranties you’ve made to us. We reserve the right to employ separate counsel and assume the exclusive defense and control of any matter otherwise subject to indemnification by you. In such an event, you shall provide us with such cooperation as we reasonably request.

(Not applicable to Quebec consumers) If you are a Cymbal user located in the United States or Canada, then this section applies to you. Please also read that section carefully and completely. If you are not subject to section 11 below, then all disputes arising out of or related to these Terms or any aspect of the relationship between us (including any communications between us), whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory (“Disputes”), will be resolved exclusively in the United States District Court for the Southern District of California or a state court located in Los Angeles County in California, and you agree to submit to the personal jurisdiction of such courts for the purpose of litigating all such Disputes. Without prejudice to the foregoing, you agree that, in our sole discretion, we may elect to resolve any Dispute we have with you in any competent court in the country in which you reside that has jurisdiction over the Dispute.

(Not applicable to Quebec consumers) The laws of the United States (including federal arbitration law) and the State of California govern these Terms, as well as any Disputes, whether in court or arbitration, which might arise between us, without regard to conflict of law provisions, and regardless of your location.

For Quebec consumers: These Terms, as well as any Disputes which might arise between us will be governed by the laws of the Province of Quebec, without regard to conflict of law provisions, and the laws of Canada applicable therein, and any Disputes will be submitted to the courts of competent jurisdiction of the District of Montreal (Quebec).

(Not applicable to Quebec consumers) If you are a Cymbal user located in the United States or Canada, then this section applies to you.

Except for disputes that qualify for small claims court, all disputes arising out of or related to these Terms or any aspect of the relationship between us (including any communications between us), whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, will be resolved through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury. You agree that we are each waiving the right to trial by a jury. Such disputes include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. All such matters will be decided by an arbitrator and not by a court or judge.

You agree that any arbitration under these Terms will take place on an individual basis; class arbitrations and class actions are not permitted and you are agreeing to give up the ability to participate in a class action.

The arbitration will be administered by the American Arbitration Association under its Consumer Arbitration Rules, as amended by these Terms. The Consumer Arbitration Rules are available online at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location that is reasonably convenient to both parties with due consideration of their ability to travel and other relevant circumstances. If the parties are unable to agree on a location, the AAA or the arbitrator will determine the location.

The arbitrator’s decision will follow the terms of these Terms and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of these Terms, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof.

You may opt out of this agreement to arbitrate by emailing us at hello@cymbal.co with your first name, last name, phone number, and address within 30 days of accepting this agreement to arbitrate, with a statement that you decline this arbitration agreement.

Notwithstanding any of the foregoing, nothing in these Terms will prevent you from bringing issues to the attention of federal, state, or local agencies and, if the law allows, they can seek relief against us for you.

You are responsible for complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant, and covenant that you are not: (i) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (ii) on any of the U.S. government lists of restricted end users.

We may modify these Terms from time to time. When we update these Terms, we will revise the “Last updated” date above and post the new Terms on Cymbal.com. Your continued use of Cymbal (including, without limitation, signing up to receive messages from an additional Cymbal Organization after an update) confirms your acceptance of the updates. If you do not agree to any update, you must stop using Cymbal. We may also modify or discontinue all or part of Cymbal at any time; or charge, modify, or waive any fees required to use Cymbal.

- You use Cymbal at your own risk, and you must comply with all applicable laws, rules, and regulations while doing so. We may limit Cymbal’s availability at any time, in whole or in part, to any person, geographic area, or jurisdiction.

- Unless a mutually executed agreement between us states otherwise, these Terms make up the entire agreement between us regarding Cymbal and supersede any prior agreements regarding the subject matter of these Terms.

- Nothing in these terms, addendums, or privacy policy shall signify that Cymbal offers or plans to offer Services in any particular country, even when a country or its laws are explicitly named or otherwise referenced.

- These Terms do not, and shall not be construed to, create any partnership, joint venture, employer-employee, agent, or franchisor-franchisee relationship between us.

- We notify you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available from https://en.wikipedia.org/wiki/Comparison_of_content-control_software_and_providers.

- All of our rights and obligations under these Terms are freely assignable by us to any of our affiliates or in connection with a merger, acquisition, restructuring, or sale of assets, or by operation of law or otherwise. You will not transfer any of your rights or obligations under these Terms to anyone else without our prior written consent.

- Except as expressly set forth herein, there are no third-party beneficiaries to these Terms.

- If we fail to enforce any of these Terms, it will not be considered a waiver. If any provision of these Terms is found unenforceable, then that provision will be severed from these Terms and not affect the validity and enforceability of any remaining provisions.

- These Terms are written in English (U.S.). Any translated version is provided solely for your convenience. To the extent any translated version of these Terms conflicts with the English version, the English version controls.