TERMS OF SERVICE

1.CONSENT TO TERMS AND CONDITIONS: PLEASE CAREFULLY READ THE TERMS AND CONDITIONS WHICH GOVERN YOUR USE OF THIS WEBSITE AND INFORMATION SHARING SERVICE (COLLECTIVELY, THE “SERVICE”); BY USING THIS SERVICE, YOU (AS A GUEST USER OR REGISTERED USER) CERTIFY THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, PRIVACY POLICY AND OTHER DOCUMENTS INCORPORATED BY REFERENCE (COLLECTIVELY, THE “TERMS OF SERVICE” OR
“TERMS”).  SECTION 18 CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER.  IT AFFECTS YOUR RIGHTS ABOUT RESOLVING DISPUTES. 

2.REVISION TO TERMS.  The owner of this website https://pickax.com  (the “Website” or “Site”) PickAx, LLC, a DE limited liability company with principal place of business at 204 Main Street #942, Newport Beach, CA  92661 (“PICKAX”), reserves the right to make changes to the Terms at any time, within its sole and exclusive discretion, provided, however, that no change shall affect the Terms that were reported on this Website at the time a user uses the Service. The effective date of the Terms shall be posted on the Service. If you use the Service, you agree and accept this as a binding contract. Do not use the Service if you do not agree to bound. The site will change periodically, so visit these Terms frequently, as your continued use after such changes are posted, means that you accept them.  

3.PICKAX’S PRIVACY POLICY AND TERMS FOR ORDERING PRODUCT. PICKAX takes your right to privacy seriously.  For more information, please read the PICKAX Privacy Policy. The terms of PICKAX’s privacy policy are incorporated herein.  Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that PICKAX may post on or link to from the Service (the “Additional Terms”), such as rules that are applicable to a particular feature or content on the Service. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.  PICKAX DOES NOT AGREE TO ANY OBLIGATIONS OF CONFIDENTIALITY, NONDISCLOSURE OR NONUSE, EXCEPT AS EXPLICITLY PROVIDED FOR IN PICKAX’S PRIVACY POLICY.

4.ELIGIBILITY.  You must be at least 18 years of age and live in the United States to use the Service. By agreeing to these Terms, you represent and warrant to us that you meet the foregoing requirements and further that (a) you have not previously been suspended or removed from the Service; and (b) your registration and your use of the Service is in compliance with these Terms and all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.  If you violate these Terms, you risk having any user account assigned to you, or other access, revoked or suspended.  

5. ACCOUNTS AND REGISTRATION.

A.Use of Accounts.  You may need a registered account to use all or a portion of the Service, which allows a) guest users to access other user’s content, b) registered users to create and share  content on the platform Service, and c) approved affiliated content creators to receive revenue sharing by separate agreement.  All of such information is stored on servers controlled by PICKAX.  

B.Registration.  When you register for an account or as a guest, you may be required to provide PICKAX with some information about yourself, such as your email address or other contact information. You agree that the information you provide to PICKAX is accurate and that you will keep it accurate and up-to-date at all times. When you register, you may be asked to provide a password. You agree to keep confidential your username and password, and agree not to disclose it to any unauthorized third party. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account or password.   If you have reason to believe that your account or password is no longer secure, then you must immediately notify PICKAX at product@PICKAX.com.

C.Types of Users. 

i. Basic Account -  You acknowledge that a Basic Account User is a user who has signed up, but has not gone through the verification process. The Basic Account User can post, comment and engage with other user accounts the same as other user accounts, but the Basic Account User will not be included in PICKAX’s recommended users, trending posts and/or articles. The Basic Account User’s visibility by other users, as such, will be thus limited in functionality.

ii. Verified Account – You acknowledge that a Verified Account User is a user that has gone through the verification process, which includes (but is not limited to) uploading an image of a currently unexpired government identifier (ID) which matches the name on the related Verified Account. Under specific situations where the ID does not match the name on the account (such as, e.g., a pseudonym, stage name or business account), verification can occur by reaching out to support@pickax.com. Verified Account Users can be included in PICKAX’s recommended users, trending posts and/or articles, as well as can be eligible to apply to become a Creator Account User. Users acknowledge that only Verified Account Users can be included in trending posts or articles, as well as in any PickAx suggested or recommended content.

iii. Creator Account - You acknowledge that a Creator Account User is a Verified Account User, which has applied to become, and has been approved by Pickax, in its sole discretion, to become, a Pickax Creator, which allows the Creator Account User all the benefits of a Verified Account User, along with additional access to monetizing the Creator Account User/Verified Account User’s content. There are three ways to earn monetary payments on Pickax: 1) Subscription Model Fees - A paywall where Subscribed Users can pay a monthly fee to access exclusive content. Pickax charges a 10% platform fee for all subscriptions. 2) Advertising Revenue Share - Ads will be placed with within articles posted by the Creator Account User that have unique trackings links and/or promo codes where commissions will be earned on converted sales that come from that ad. Commissions vary depending on advertiser. 3) Affiliate Marketing – commissions related to Affiliate Marketing sales directly attributable to Creator Account User content. For more information on advertisers and commissions, see Creator Dashboard.

6.USER CONTENT.

A. User Content Generally. In using the Service, you may be uploading content through PICKAX’s Service for the purpose of enabling the platform to post and host User-created content.  You may also submit content about yourself and may create and share content to be accessed by other users, including without limitation, message board posts, chat rooms, personal web pages, profiles, forums, bulletin boards, group pages, discussion threads, and other interactive features, etc.  All of such information is stored on servers controlled by PICKAX and is referred to as “User Content”.  

B.Limited License to PICKAX.  

 (1)By posting or publishing User Content to a public area of the Service, you grant PICKAX a worldwide, perpetual, non-exclusive, royalty-free, fully paid up right and license (with the right to sublicense) to host, store, transfer, display, reproduce, modify for the purpose of formatting for display, distribute and use User Content, in whole or in part, in any media formats and through any media channels now known or later developed.

(2)By uploading User Content to a private area of the Service, you grant PICKAX a worldwide, non-exclusive, royalty-free, fully paid up right and license to host, store, transfer, display, reproduce, modify and use User Content for the full period of time that you maintain your account on the Service, solely to enable your use of User Content.  PICKAX may also collect and report information on an aggregate basis and without any personal identification information to one or more third parties.  

(3)Any User Content is, and will be treated as, non-confidential and non-proprietary.  You assume full responsibility for anything you post or transmit, and you understand that PICKAX may delete, edit, copy, publish and distribute any information or content you post or transmit for any purpose.  All User Content must comply with these Terms of Service including the prohibited uses listed in Section 9. Any User Content you post to the Service will be considered non-confidential and non-proprietary. By providing any User Content on the Service, you grant us and our affiliates and service providers, and each of their and our licensees, successors, and assigns an irrevocable, perpetual, royalty-free right to use, republish, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose.

(4)You may use the Service for any lawful purpose, which is in accordance with these Terms of Service.  

C.Limited License Grant to Other Users. The Service may allow for peer to peer or other sharing of User Content. By posting or sharing User Content with other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and any additional terms you agree to at the time that you upload that User Content.

D.User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of submitting, posting, contributing, or publishing User Content, and you, not Pickax have full responsibility for any such User Content including its accuracy, appropriateness, reliability, legality, and propriety. By posting or publishing User Content, you affirm, represent, and warrant that:

(1)you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize PICKAX and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by PICKAX, the Service, and these Terms; and

(2)your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; (c) cause PICKAX to violate any law or regulation of the USA; or (d) violate any of these Terms including any of the enumerated prohibited uses of Section 9.

E.User Content Disclaimer. PICKAX is under no obligation to edit or control User Content that you or other users post or publish, and PICKAX will not be in any way responsible or liable for anything to do with, and with respect to, including the accuracy, completeness, or usefulness of, the User Content. PICKAX may, however, in its sole and exclusive discretion, at any time and without prior notice, screen, remove, edit, or block any User Content that in PICKAX’s sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against PICKAX with respect to User Content. PICKAX expressly disclaims any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, PICKAX may investigate the allegation and determine in PICKAX’s sole and absolute discretion whether to remove the User Content, which PICKAX reserves the right to do so at any time and without notice.

7.PICKAX CONTENT.

A.PICKAX Content.  This Website and Service which you use as part of the Service is owned or licensed and operated by PICKAX.  Except for any User Content described above in Section 6, content on the Website or any Software App, including any feedback you provide to PICKAX about the Service or otherwise, text, site design, logos, proprietary marks, graphic files, audio clips, video clips, icons, and images, as well as the selection, assembly and arrangement thereof (“Content”), is the sole property of PICKAX or any applicable content provider who has granted PICKAX the right and license to use such Content, and is protected by U.S. and international copyright laws.  

B.Use Restrictions. Any PICKAX Content or User Content posted on the public portions of the Service, may be downloaded or reprinted by you for PERSONAL AND NON-COMMERCIAL USE ONLY, including for the purpose of placing an order with PICKAX. Permission to reprint or electronically reproduce any PICKAX Content or User Content, in whole or in part, for any other reason is expressly prohibited, unless you obtain prior written consent from PICKAX. Any unauthorized use of the PICKAX Content or User Content appearing through the Service, including but not limited to, the publication, reproduction, display, creation of derivative works or performance of the PICKAX Content or User Content, may violate copyright, trademark or other applicable laws and could result in civil or criminal penalties.

C. Trademark/Service Mark.  All trademarks, service marks and trade names (collectively the “Marks”), including but not limited to PICKAX™ are proprietary to PICKAX or other respective owners that have granted PICKAX the right and license to use such Marks.  The Marks may not be used in connection with any product or service that is not PICKAX’s product or service, in any manner that is likely to cause confusion among PICKAX’s customers or users of this Website, or in any other manner in violation of the trademark and service mark laws, without the express written consent of PICKAX.

D.Other Restrictions.   You agree that you will not decompile, disassemble, reverse engineer, copy, disclose, sell or transfer the underlying source code, structure or sequence of PICKAX’s technology, platform or Service. You shall use the Service solely for your own use and shall not allow others to use the Service under or through your account.

Nothing on the Service or elsewhere should be construed to grant any license or right to use, implied or otherwise, any mark displayed on the Service without the written permission of PICKAX or the third party owner of the mark. PICKAX reserves the right, in its sole discretion, to remove any material that infringes or appears to infringe on intellectual property rights owned by others.

8.PROCEDURE FOR MAKING COPYRIGHT INFRINGEMENT CLAIMS.  

A.Policy.  PICKAX and its affiliates and agents respect the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide PICKAX the written information specified below. Please note that this procedure is exclusively for notifying PICKAX and its affiliates that your copyrighted material has been infringed.

B.Notice.  If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible on this Website or through this service, you may notify our copyright agent, as set forth in the Digital Millennium Copyright Act of 1998 (DMCA). For your complaint to be valid under the DMCA, you must provide the following information when providing notice of the claimed copyright infringement:

• A physical or electronic signature of a person authorized to act on behalf of the copyright owner.

• An identification of the copyrighted work claimed to have been infringed.

• Identification of the material that is claimed to be infringing or to be the subject of the infringing activity and that is to be removed or access to which is to be disabled as well as information reasonably sufficient to permit us to locate the material.

• Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address.

• A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law.

• A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

The above information must be submitted as a written notification to the following designated agent and the following address/facsimile or email (please also label the inquiry as a “DMCA” inquiry):

PICKAX, LLC

Attn: Designated Copyright Agent

Postal Address: 204 Main Street #942, Newport Beach, CA  92661

jeffdornik@icloud.com

415-272-9540

PICKAX CAUTIONS YOU THAT UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CIVIL PENALTIES. THESE INCLUDE MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS' FEES INCURRED BY PICKAX, BY ANY COPYRIGHT OWNER, OR BY ANY COPYRIGHT OWNER'S LICENSEE THAT IS INJURED AS A RESULT OF PICKAX RELYING UPON YOUR MISREPRESENTATION. YOU MAY ALSO BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY.

This information should not be construed as legal advice, for further details on the information required for valid DMCA notifications, see 17 U.S.C.A. 512(c)(3).

NOTE: This information is provided exclusively for notifying the service providers referenced above that your copyrighted material(s) might have been infringed. All other inquiries, including technical requests, reports of email abuse and third party reports of piracy, will not receive a response through this process.

9.PROHIBITED USES.  You may not use this Service for the purpose of (a) infringing upon the intellectual property rights of any party (including PICKAX), (b) defaming or slandering any person, (c) engaging in fraud, (d) sending unsolicited commercial electronic mail, chain letters, spam, junk mail, unwanted advertising, or tagging random users, other than commercially reasonable advertising, spamming, phishing, buying or selling usernames,  (e) violating or attempting to violate the security or integrity of, or interfering with, the Service or any of its users, including without limitation, disabling, damaging, impairing, or overburdening the Service, manually or automatically, using robots, spiders, or other automated device to access, or interfere with, the Service for any purpose not authorized by these Terms, including copying or monitoring any of the Service’s content,  (f) violating any law (including without limitation copyright law, etc.), (g) misusing the proprietary information or property of others for your own purposes or otherwise, (h) exploiting or harming minors or exposing them to inappropriate content, asking for private information, or otherwise, (i) sending or knowingly receiving uploading, downloading, using or reusing any content which does not comply with these Terms of Service, (j) introducing any malware, trojans, viruses, etc.,  (k) posting any information which is not protected by the First Amendment of the U.S. Constitution (“1st Amendment”)including without limitation, posting or transmitting any unlawful, harmful, threatening, abusive, harassing, vulgar, obscene, profane, sexually explicit or pornographic material, or otherwise objectionable material of any kind, including but not limited to, any material which is injurious to the safety, business or reputation of others, encouraging conduct that would constitute a civil or criminal offense, violating the rights of others or otherwise violating any applicable local, state, or federal  law of the USA, or (l) engaging in any conduct, which we determine within our sole and absolute discretion, may result in harassment (e.g., “doxing”, denial-of-service, distributed denial of service, etc.), or physical harm or injury (e.g., terrorism, threats of terrorism, pornography, nudity, fraud) of any person, or entity, including PickAx, or expose us to liability. You also may not misrepresent your identity, impersonate or attempt to impersonate PickAx, or a PickAx employee, another user, or any other person or entity not protected by the 1st Amendment, while using this Service.  You hereby acknowledge your understanding that the protections granted by the 1st Amendment apply solely to government infringements on free speech and do not extend to privately-owned entities, that Pickax is a privately-owned, social media platform entity, is not the US government, and has no 1st Amendment obligation to protect a user’s freedom of speech, and thus has no obligation to accommodate any viewpoint or content PickAx finds, in its sole and absolute discretion, objectionable. You further acknowledge and agree Pickax has its own 1st Amendment rights, the media right, also known as freedom of the press, and plays a significant role as a “modern public square” as noted in Packingham v. North Carolina, 582 U.S. 98 (US S. Court 2017). Pickax does not censor a user’s speech unless a user violates the law of the USA or specifically violates these Terms of Service.

10. THIRD-PARTY SERVICES AND LINKED WEBSITES. PICKAX may provide tools through the Service that enable you to export information, including User Content, to third party services, including through PICKAX’s implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that PICKAX may transfer that information to the applicable third-party service. Third party services are not under PICKAX’s control, and PICKAX is not responsible for any third party service's use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under PICKAX’s control, and PICKAX is not responsible for their content.

11. TERMINATION OF USE, DISCONTINUATION AND MODIFICATION OF THE SERVICE. You may terminate your account at any time by emailing __________ or by using the account menu within the Service. If you violate any provision of these Terms, your permission from PICKAX to use the Service will terminate automatically. In addition, PICKAX may in its sole discretion suspend or terminate your access to the Service, or portions of the Service, during an investigation of a violation of these Terms. PICKAX's determination that a violation has occurred will be in its sole and absolute discretion. PICKAX also reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. PICKAX will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.

12.INDEMNITY. You are responsible for your use of the Service, and you will defend, indemnify, and hold harmless, immediately upon written demand, PICKAX and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “PICKAX Entities”) from and against every claim, liability, damage, loss, and expense, including all attorneys' fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service including the transmission of any User Content; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. PICKAX reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with PICKAX’s defense of that claim.

13.DISCLAIMER AND NO WARRANTIES.  

A.DISCLAIMER.  THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE PICKAX ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (1) ANY IMPLIED WARRANTY OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (2) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE PICKAX ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.

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

 SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

THE DISCLAIMER CONTAINED IN THIS SECTION IS INDEPENDENT OF ANY AGREED REMEDY.

14.LIMITATION OF LIABILITY.  IN NO EVENT WILL THE PICKAX ENTITIES BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS, PAIN AND SUFFERING, EMOTIONAL DISTRESS OR SIMILAR DAMAGES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY PICKAX ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

THE AGGREGATE LIABILITY OF THE PICKAX ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE, OR THE RESULTS OF USE OF THIS SITE, ANY WEBSITES LINKED TO THIS SITE, THE MATERIALS OR INFORMATION CONTAINED AT ANY SUCH SITES, OR IN CONNECTION WITH ANY FAILURE OF PERFORMANCE, ERROR, LOSS OF DATA, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS OR LINE OR SYSTEM FAILURE, OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO, AND SHALL NOT EXCEED, THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO PICKAX FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCES GIVING RISE TO CLAIM; OR (B) $100.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 14 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. IF YOUR USE OF THE MATERIALS OR INFORMATION FROM THIS SITE OR SERVICE RESULTS IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF EQUIPMENT, SOFTWARE OR DATA, YOU ASSUME ALL COSTS OF SUCH CLAIMS. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IF ANY PART OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF PICKAX UNDER SUCH CIRCUMSTANCES SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00), AND IN NO EVENT SHALL SUCH AMOUNT EXCEED THE AMOUNT USER HAS PAID PICKAX IN THE IMMEDIATE PAST TWELVE (12) MONTHS PERIOD, FOR THE APPLICABLE CONTENT OR SERVICE OUT OF WHICH SUCH LIABILITY AROSE.

THE LIMITATION CONTAINED IN THIS SECTION IS INDEPENDENT OF ANY AGREED REMEDY.

15.   RELIANCE ON WEBSITE AND INDEMNIFICATION.  By accessing this Service, you agree that in no event will PICKAX be liable to you or anyone else for any decisions made or actions taken by you or anyone else based upon or in reliance upon the information provided through the Service. There may be typographical or other errors, including misleading information.  In the event of an error or other content related issue, PICKAX reserves the right to correct such error without notification.

16.INDEPENDENT ENFORCEABILITY AND ELECTRONIC COMMUNICATIONS.  The invalidity or unenforceability of any provision (or portion thereof) contained in these Terms shall in no way affect the validity or enforceability of any other provision (or portion thereof), each provision being independent of the others and severally enforceable, and the parties hereto agree that the covenants and agreements contained in these Terms shall survive the termination of these Terms. You agree that any notices, agreements, disclosures, or other communications that PICKAX sends to you electronically will satisfy any legal communication requirements, including that such communications be in writing.

17.APPLICABLE LAW.   This Site is administered by PickAx from its offices within the United States of America (USA) and the laws of the USA apply. You may not use, or export materials provided in violation of U.S. export laws and regulations. These Terms and all disputes arising hereunder or between you and PICKAX shall be governed by and construed in accordance with the laws of the state of Delaware without regard to the principles thereof concerning conflict of laws. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. PICKAX is located in the USA and does not have any presence outside of the USA. Non-US residents, and US non-residents, must not use the site for any purpose that would, if it occurred in the USA, be unlawful under the laws of the USA.

18.DISPUTE RESOLUTION AND ARBITRATION.  If there is a dispute between us, you agree to notify PICKAX in writing and attempt to resolve the dispute informally for sixty (60) days.  At PICKAX’s sole and absolute discretion, if the dispute cannot be resolved, then you agree that any disputes arising from these Terms of Service or use of the Website, shall be submitted to final and binding individual arbitration before the American Arbitration Association and not to sue in court or proceed in front of a judge or jury.  You agree to not pursue against PICKAX any class action lawsuits, class-wide arbitrations, private attorney-general actions, and any other proceeding where someone acts in a representative capacity for you and you agree not to seek to combine individual proceedings.  This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any arbitration shall be administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator shall only be entered in a court located in the state of Delaware.  Claims shall be heard by a single arbitrator. The place of arbitration shall be at an agreed upon location in the state of Delaware. The arbitration shall be governed by the laws of the state of Delaware and the Federal Arbitration Act.

Hearings will take place pursuant to the standard procedures of the Commercial Arbitration Rules that contemplate in person hearings.  Each party will, upon written request of the other party, promptly provide the other with copies of all relevant documents.  There shall be no other discovery allowed.

Any award in an arbitration initiated under this clause shall be limited to monetary damages consistent with these Terms, including Section 14, and shall include no injunction or direction to any party other than the direction to pay a monetary amount.  

Each party shall bear its own costs and expenses and an equal share of the arbitrator’s and administrative fees of arbitration. However, if the arbitrator finds that either the substance of your claim or the relief sought in the arbitration demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then you agree to reimburse PICKAX for all monies previously disbursed by it for American Arbitration Association fees and the fees of the arbitrator in the arbitration.  Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. The parties agree that failure or refusal of a party to pay its required share of the deposits for arbitrator compensation or administrative charges shall constitute a waiver by that party to present evidence or cross-examine witness.  In such event, the other party shall be required to present evidence and legal argument as the arbitrator(s) may require for the making of an award.  Such waiver shall not allow for a default judgment against the non-paying party in the absence of evidence presented as provided for above.

YOU FURTHER AGREE THAT ANY CAUSE OF ACTION YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

19.CONTACT INFORMATION. The Service is offered by PICKAX, Inc., located at 204 Main Street #942, Newport Beach, CA  92661, USA. You may contact PICKAX by sending correspondence to that address or by emailing PICKAX at product@PICKAX.com.

20.MISCELLANEOUS.  You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. PICKAX may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect PICKAX’s right to require performance at any other time after that, nor will a waiver by PICKAX of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Upon termination of these Terms, the terms that by their very nature should survive, along with the Privacy Policy, terms and conditions, and any other accompanying agreements, will survive. If any provision of these Terms is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the other provisions of these Terms shall remain in full force and effect. The failure of PICKAX to act with respect to a breach of the Terms by you or others does not constitute a waiver and shall not limit PICKAX’s rights with respect to such breach or any subsequent breaches. PICKAX may terminate your access to this Site or Service, change the Site or Service, or delete content or features on the Site or Service at any time and for any reason or no reason. PICKAX may revise these Terms at any time by updating this posting, and access to these Terms are provided on the Site or Service. You should visit this page from time to time to review the then current Terms because they are binding on you. Certain provisions of these Terms may be superseded by expressly designated legal notices or terms located on particular pages at this Site or Service. If you do not wish to abide by these Terms, then you must cease use immediately of the Site or Service.