1. General terms
Company provides this Site to users seeking advising services ("Customers") and to users seeking to provide advising services ("Mentor(s)"), and to any other entity on whose behalf users accept these Terms. The term "you" or "You" or “User” or “Users” shall refer to Customers, Mentors, Education Partners, or any person or entity who views, uses, accesses, browses or submits any content or material to the Site. “Customers” shall include Education Partners and Education Partners’ students/applicants as defined below. These Terms are entered into by and between Company and you, and you accept them by: (a) contracting for advising services through the Site; (b) using the Site in any other manner; and/or (c) acknowledging agreement with these Terms. If you do not agree to these Terms, do not use the Site.
To the extent that anything in or associated with the Site is in conflict or inconsistent with these Terms, the Terms shall control, except for any Mentor, the Independent Contractor Agreement entered into between the Mentor and the Company shall take precedence over these Terms. Any express waiver or failure to exercise promptly any right under the Terms will not create a continuing waiver or any expectation of non-enforcement. If any provision of the Terms is held invalid by any law or regulation of any government, or by any court or arbitrator, the parties agree that such provision will be replaced with a new provision that accomplishes the original business purpose, and the other provisions of the Terms will remain in full force and effect.
The Site offers a marketplace for those seeking advising services to connect with those seeking to provide advising services and also helps connect Mentors to Company’s education partners and/or the education partners’ students/applicants around the world (“Education Partners”). In making hiring decisions, Customers should review each Mentor's self-reported credentials, education, and experience. Under no circumstances, does Company or any of its Mentors guarantee Customers admission into any academic program while using any of the services on the Company platform, free or otherwise. Customers agree that Independent Mentors will offer advice and guidance based on the Independent Mentor's experience through the application process with the objective of helping Customers improve their applications. However, Customers take sole responsibility to evaluate the advice provided and to decide whether or not to pursue this advice. Mentors do not offer any guarantee regarding the effectiveness of the advice provided through any of the services on the Company platform for gaining admission into any academic program. Mentors will not write essays or resumes or complete applications on behalf of the Customer. Customers are solely responsible for completing and writing their application materials.
Company controls and operates the Site from various locations and makes no representation that this website is appropriate or available for use in all locations. Company services may not be available in your location, and available services may vary among locations. In addition, Company will attempt to deliver all correspondence sent via the Site's messaging system and the Company’s e-mail as these options become available. Company will not, however, guarantee delivery of all messages.
3. Academic honesty
You acknowledge and agree that Company's services are provided for the purpose of facilitating knowledge sharing. You agree not to inquire about the hiring of or to hire Mentors to complete applications on your behalf. Further, you agree not to use Company's services for any purpose that violates the academic honesty policy or other conduct policies of your school, university, academic institution or workplace. Company services are intended to connect Mentors with Customers so that the former can provide advice. The advice should not include disclosing of information subject to confidential agreements, for example interview questions from previous application processes that Mentors have a confidentiality obligation not to disclose.
4. Your obligations and conduct
In consideration of your use of the Site, you agree: (a) that you are of legal age and have capacity to agree to these Terms; (b) to provide accurate, current, and complete information about you as may be prompted by a registration form on the website ("Registration Data"); (c) to maintain the security of your password and identification; (d) to maintain and promptly update the Registration Data and any information you provide to Company, to keep it accurate, current and complete; and (e) to accept all risks of unauthorized access to information and Registration Data. You are not permitted to use the Site or submit Content to the Site if you are under the age of 14.
You are entirely responsible for all Content that you upload, post, or otherwise transmit through your use of the Site ("Content"). You agree not to upload, post or otherwise transmit Content that: (a) is inaccurate, harmful, obscene, pornographic, defamatory, racist, violent, offensive, harassing, unlawful, or otherwise objectionable to Company or other users of the website; (b) includes unauthorized disclosure of personal information; (c) violates or infringes anyone's intellectual property rights; or (d) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. Company reserves the right to edit or remove Content that violates these Terms, that contains third-party commercial advertisements, or for any other reason it deems necessary.
You agree to use the Site in a manner that is lawful, relevant and proper to the applicable forum. Any use of the Site that Company, in its sole discretion, finds inappropriate and/or offensive may result in suspension and/or termination of a User with or without notice. Conduct that is inappropriate and/or offensive includes without limitation the following:
· Defame, abuse, harass, harm, stalk, threaten or otherwise violate the legal rights (including without limitation rights of privacy and publicity) of others;
· Publish, post, upload, distribute or disseminate any profane, defamatory, infringing, hateful, distasteful, obscene or unlawful topic, name, information, materials or content;
· Use the Site for any purpose that is in violation of local, state, national, or international law, including without limitation wage/hour and working condition laws and regulations;
· Upload files that contain software or other material that violates the rights of any third party, including without limitation intellectual property rights or rights of privacy or publicity;
· Upload files that contain viruses, Trojan horses, worms, time bombs, spiders, cancel bots, corrupted files, or any other similar software, malware or materials that may damage, interfere with, disrupt, impair, disable or otherwise overburden the operation of any device, computer system or network;
· Take any action that would undermine any aspect of the Site;
· Attempt to gain unauthorized access to the Site, other User accounts, or other device, computer system or networks connected to the Site;
· Advertise or offer to sell any goods or services for any commercial purpose on the Site that are not appropriate or relevant to the Site;
· Impersonate another person or allow any other person or entity to use your user name, password or membership;
· Post the same content repeatedly or spam - spamming is strictly prohibited;
· Download any file posted by another user that you know, or reasonably should know, cannot be legally distributed through the Site;
· Access, download, or copy any information, content and/or materials from the Site through artificial means (including without limitation spiders, scrapers, hacking devices, computer programs, bots or other such means);
· Reproduce, duplicate, copy, sell, re-sell or exploit any information, materials or content on the Site; or
· Restrict or inhibit any other user from using and enjoying the Site.
By using the Site, you understand and agree that Company may rely on the above Eligibility Conditions representations and warranties as true. You understand and agree that Company may revise the Eligibility Conditions from time to time and require new conditions and certifications and that User will abide by such revised Eligibility Conditions or discontinue using the Site.
You hereby authorize Company to verify the above representations and warranties by you and you acknowledge and agree that Company shall have the right, but not the obligation, to verify such representations and warranties. You agree and understand that such verification may include, without limitation, conducting criminal background checks, sex offender registry checks, motor vehicle records checks, identification verifications, credit checks and/or use of available public records. You consent to any collection, use or disclosure in order to accomplish such verification. You further agree that Company may take such action as it, in its sole discretion, deems appropriate, including without limitation suspending and/or terminating your use of the Site, should it determine that you have violated any representation or warranty.
The preceding paragraph notwithstanding, you understand and agree Company does not conduct background checks of any User. You also understand and agree Company neither confirms nor denies the validity of information provided by Users and that Company does not verify that any or all of the Eligibility Conditions are met by Users. You understand and agree to make your own decisions and assessments about persons to engage and that it is your sole responsibility to conduct any background and reference checks regarding other users.
Company expressly disclaims, and you expressly release Company from, any and all liability whatsoever for any controversies, claims, suits, injuries and/or damages arising from and/or in any way related to: (a) any inaccuracy, untimeliness or incompleteness regarding a User's Eligibility Conditions and/or (b) misstatements or misrepresentations made by any User.
Company reserves all of its rights under the Communications Decency Act, including without limitation its right to remove anything objectionable to Company in its sole discretion. In addition, Company reserves the right to remove access from any Mentor or Company Customer for any reason at any time. Alleged improprieties by any User may be reported to Company by email at email@example.com.
5. Third party reports
Company may utilize third party consumer reporting agencies that perform, among other things, criminal background checks, sex offender registry checks, motor vehicle records checks, credit checks, and identification verifications ("consumer reports"). Company does not endorse or make any representations or warranties regarding the reliability of such consumer reports or the accuracy, timeliness or completeness of any information in the consumer reports. Company does not independently verify information in the consumer reports.
You hereby consent to Company collecting, using and disclosing the information in the consumer reports. You understand and agree that Company may, in its sole discretion, review and rely on the information in the consumer reports in deciding whether to suspend or terminate a User or to investigate a complaint about a User, but that Company shall not be responsible or liable in any way in the event that any information in the consumer reports about any person, including without limitation any User, is not accurate, timely or complete. Users who are the subject of consumer reports may contact the service provider to dispute the accuracy, timeliness or completeness of such information. Company reserves the right to suspend and/or terminate User based on information in the consumer reports or for any other reason in Company's sole discretion.
6. Confidentiality of Company information
You may obtain direct access via the Site to certain confidential information of Company and its affiliates, including without limitation technical, contractual, product, program, pricing, marketing and other valuable information that should reasonably be understood as confidential ("Confidential Information"). You must hold Confidential Information in strict confidence. All right, title and interest in the Confidential Information remains with Company and its affiliates.
In addition Mentors acknowledge that, during the performance of Services, Mentor will have access to information relating to the Customer's identity, address, contact information, essays, resumes, documentation and other personal information or requests for services (“Customer Information”) which will also be considered as part of Confidential Information and should be treated in the strictest confidence. Mentor agrees that Mentor owes a duty to Company and such third parties, during the term of their Independent Mentor Agreement and thereafter, to hold all such Confidential Information in the strictest confidence and not to disclose it to any person, firm or corporation or to use it except as necessary in carrying out the Services requested by the Customers.
Except for the Customer Information, which will at all times be considered Confidential Information, the Terms impose no obligation upon you with respect to Confidential Information that you can establish by legally sufficient evidence: (a) you possessed prior to your receipt from Company, without an obligation to maintain its confidentiality; (b) is or becomes generally known to the public through no act or omission by you, or otherwise without violation of the Terms; (c) you obtained from a third party who had the right to disclose it, without an obligation to keep such information confidential; (d) you independently developed without the use of Confidential Information and without the participation of individuals who have had access to it, or (e) in response to a valid order by a court or other governmental body, as otherwise required by law, or as necessary to establish the rights of either party under these Terms and as disclosed after prior notice to Company adequate to afford Company the opportunity to object to the disclosure.
7. Content submitted to the Site
Company may, in its sole discretion, permit you to post, upload, publish, submit or transmit Content. By making available any Content on or through the Site, which includes but is not limited to Content which is submitted by you to firstname.lastname@example.org, you hereby grant to Company a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, translate, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Content on, through, by means of or to promote, market or advertise the Site or the services or for any other purpose in our sole discretion. Except as otherwise stated in these Terms or other agreement entered into between you and the Company, the Company does not claim ownership rights in your Content and nothing in these Terms will be deemed to restrict rights that you may have to use and exploit any such Content submitted, posted, uploaded, published, or transmitted on or through the Site by you.
You acknowledge and agree that you are solely responsible for all Content that you make available on or through the Site. Accordingly, you represent and warrant that: (a) you either are the sole and exclusive owner of all Content that you make available on or through the Site or you have all rights, licenses, consents and releases that are necessary to grant to the Company the rights in such Content, as contemplated under these Terms; and (b) neither the Content nor your posting, uploading, publication, submission or transmittal of the Content or the Company’s use of your Content (or any portion thereof) on, through or by means of the Site will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. While it has no obligation to do so, you agree that the Company may proofread, summarize or otherwise edit and/or withdraw your Content, and you understand it remains your sole responsibility to monitor your Content and ensure that such edited Content is accurate and consistent with your representations and warranties in these Terms.
The Company reserves the right, at any time and without prior notice, to remove or disable access to Content that we, in our sole discretion, consider to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site or users, or for any other reason.
8. Profile Information.
Aside from the Content listed above, Mentor will need to set up a profile on the Site in order for the Mentor to be connected with Customers, which may include the Mentor’s self-reported full name, Skype/WeChat, education, background experiences, test scores, profile picture, bio, articles, worksheets, files, testimonials, reviews, video submissions, and blog entries ("Profile Information"). By using the Site, Mentor acknowledges and hereby allows the Company and/or any of its assigns to distribute the Profile Information to Customers and/or for marketing purposes.
9. Terms of transacting business
You understand and agree to abide by Company’s Mentor and Customer payment policies. You agree that you are willing to pay all costs associated with the services through Company. These costs include but are not limited to: (a) Mentor’s pay and/or commission rate; (b) the pay and/or commission arrangement between the Mentor and Company.
10. Third party verification services
Company may make available one or more third party verification services that enable Users of the Site to inquire about information including, but not limited to, another User’s identity and criminal history. Use of a third party verification service is voluntary for both the party requesting the verification and the party undergoing the verification. You agree that Company shall not be held responsible or liable in any way if any information provided by a third party verification service is inaccurate. When a third party verification service is used, you warrant that you will comply with the Fair Credit Reporting Act, 15 USC 1681.
11. Advertisements and promotions
Company may run advertisements and promotions from third parties on the Site. Your correspondence or business dealings with, or participation in promotions of, advertisers other than Company found on or through the Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. Company is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such non-Company advertisers on the Site.
12. Content provided via links
You may find links to other websites or resources on the Site. You acknowledge and agree that Company is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. Company will not be responsible or liable, directly or indirectly, for any actual or alleged damage or loss caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
13. Intellectual property rights
Except as expressly authorized by Company or by Content providers, you agree not to reproduce, modify, rent, lease, loan, sell, distribute, mirror, frame, republish, download, transmit, or create derivative works of the Content of others, in whole or in part, by any means. You must not modify, decompile, or reverse engineer any software Company discloses to you, and you must not remove or modify any copyright or trademark notice, or other notice of ownership.
"Company Trademarks" means all names, marks, brands, logos, designs, trade dress, slogans and other designations Company uses in connection with its products and services. You may not remove or alter any Company Trademarks, or co-brand your own products or material with Company Trademarks, without Company's prior written consent. You acknowledge Company's rights in Company Trademarks and agree that any use of Company Trademarks by you shall inure to Company's sole benefit. You agree not to incorporate any Company Trademarks into your trademarks, service marks, company names, internet addresses, domain names, or any other similar designations, for use on or in connection with computer or internet-related products, services or technologies.
Unless explicitly stated herein, nothing in these Terms shall be construed as conferring any license to intellectual property rights, whether by estoppels, implication, or otherwise. Permission is granted to display, copy, distribute and download Content owned by Company on this Site provided that: (a) the copyright notice pertaining to the Content remains, and a permission notice (e.g., "used with permission") is added to such Content; (b) the use of such Content is solely for personal and non-commercial use; (c) such Content will not be copied or posted on any networked computer or published in any medium, except as explicitly permitted by valid permission or license covering such materials; and (d) no modifications are made to such Content. This permission terminates automatically without notice if you breach any of the terms or conditions in this document. Upon termination, you must immediately destroy any downloaded and/or printed Content.
14. Termination and suspension
Company reserves the right to suspend and/or terminate any user with or without notice at any time in its sole discretion, for any reason or no reason. You agree that, if you are suspended and/or terminated, you will make no further use of the Site after termination or during suspension.
15. Disclaimer of warranties
USE OF THE SITE IS AT YOUR SOLE RISK UNLESS OTHERWISE EXPLICITLY STATED. THE SITE, INCLUDING THE INFORMATION, SERVICES, AND CONTENT, IS PROVIDED ON AN "AS IS", "AS AVAILABLE", AND "WITH ALL FAULTS" BASIS. COMPANY DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES AS TO THE USEFULNESS, QUALITY, SUITABILITY, TRUTH, ACCURACY, OR COMPLETENESS OF THE SITE.
COMPANY MAKES NO WARRANTY OR REPRESENTATIONS THAT: (A) THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (B) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE WILL BE ACCURATE OR RELIABLE; (C) THE QUALITY OF ANY PRODUCTS, SERVICES, CONTENT, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED FROM MENTORS WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS; OR (D) ANY ERRORS IN THE SITE WILL BE CORRECTED.
YOU ASSUME ALL RISK FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM OBTAINING ANY CONTENT FROM THE SITE, INCLUDING ANY DAMAGES RESULTING FROM COMPUTER VIRUSES.
16. Limitation of liability
THE SITE OFFERS A MARKETPLACE FOR THOSE SEEKING ADVISORY SERVICES TO CONNECT WITH THOSE SEEKING TO PROVIDE ADVISING SERVICES. YOU UNDERSTAND AND AGREE THAT COMPANY HAS NO CONTROL OVER THE ACTS OR OMISSIONS OF ANY USER AND THAT COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE QUALITY OF THE SERVICES PROVIDED BY ANY USER. YOU UNDERSTAND AND AGREE THAT COMPANY IS NOT RESPONSIBLE FOR THE PERFORMANCE OR CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SITE. AS SUCH, COMPANY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY WHATSOEVER FOR ANY CONTROVERSIES, CLAIMS, SUITS, INJURIES AND/OR DAMAGES ARISING FROM AND/OR IN ANY WAY RELATED TO THE SITE.
USERS OF THE SITE TRANSACT BETWEEN THEMSELVES. EXCEPT TO HELP FACILITATE TRANSFERS, ORGANIZATION AND/OR MANAGE RENDERING OF SERVICES, COMPANY WILL NOT BE INVOLVED IN ANY USER INTERACTIONS. COMPANY IS NOT RESPONSIBLE FOR DISPUTES, CLAIMS, LOSS, INJURY, OR DAMAGE OF ANY KIND THAT MIGHT ARISE DURING AND AFTER USER INTERACTION.
YOU UNDERSTAND AND AGREE THAT COMPANY HAS NO CONTROL OVER THE ACTS OR OMISSIONS OF ANY USER ON OR OFF THE SITE AND THAT COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE QUALITY OF THE SERVICES PROVIDED BY ANY USER. YOU UNDERSTAND AND AGREE THAT COMPANY IS NOT RESPONSIBLE FOR THE PERFORMANCE OR CONDUCT, WHETHER ON OR OFF THE SITE, OF ANY USER. AS SUCH, COMPANY EXPRESSLY DISCLAIMS, AND EACH USER EXPRESSLY RELEASES COMPANY FROM, ANY AND ALL LIABILITY WHATSOEVER FOR ANY CONTROVERSIES, CLAIMS, SUITS, INJURIES AND/OR DAMAGES ARISING FROM AND/OR IN ANY WAY RELATED TO THE SITE, INCLUDING WITHOUT LIMITATION ANY ACTS AND/OR OMISSIONS OF USERS ON OR OFF THE SITE.
TO THE FULL EXTENT PERMITTED BY LAW, COMPANY IS NOT LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE, DATA, ELECTRONICALLY TRANSMITTED ORDERS, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR IN CONNECTION WITH THE SITE, EVEN IF COMPANY HAS PREVIOUSLY BEEN ADVISED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES, HOWEVER THEY ARISE, WHETHER IN BREACH OF CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), INCLUDING WITHOUT LIMITATION DAMAGES DUE TO: (A) THE USE OF OR THE INABILITY TO USE THE SITE; (B) THE COST OR PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED, OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM THE SITE; (C) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE, INCLUDING WITHOUT LIMITATION UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSION OR DATA, MALICIOUS OR CRIMINAL BEHAVIOR, OR FALSE OR FRAUDULENT TRANSACTIONS; OR (D) CONTENT OR INFORMATION USERS MAY DOWNLOAD, USE, MODIFY, OR DISTRIBUTE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL COMPANY'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE, EXCEED (A) THE AMOUNT PAID BY YOU TO COMPANY OR A COMPANY PARTNER, IF ANY, OR (B) $100 (WHICHEVER IS LESS).
17. Assumption of risk
You agree and understand that you assume all risks when using the Site, including without limitation any and all of the risks associated with any online or offline interactions with other Users. You agree to take all necessary precautions when interacting with other users.
If you are a California resident, you waive California Civil Code Section 1542, which says: “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.”
19. Dispute Resolution and Arbitration
In the interest of resolving disputes between you and Company in the most expedient and cost effective manner, you and Company agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and is subject to very limited (if any) review by courts. Arbitrators can award the same damages and relief that a court can award. 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. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION.
Nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Any arbitration between you and Company will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Company at email@example.com.
A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Company's address for Notice is: Hindsight Advice, Inc., 100 Cambridge Street, 14th Floor, Boston, MA, 02114. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Company must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Company will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Company in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
Fees and Procedure
The parties to the arbitration shall each pay an equal share of the costs and expenses of such arbitration, and each party shall separately pay for its respective counsel fees and expenses; provided, however, that the arbitrator may award attorneys’ fees and costs to the prevailing party, except as prohibited by law. If you commence arbitration in accordance with these Terms, Company will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York, NY, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Company for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
The arbitrator may grant injunctions and other relief. The arbitrator shall administer and conduct any arbitration in accordance with the law of the jurisdiction in which the dispute arose, including civil procedure rules, and the arbitrator shall apply the substantive and procedural law of the jurisdiction in which the dispute arose. To the extent that the AAA Rules conflict with local law, local law shall take preference. The decision of the arbitrator shall be final, conclusive, and binding on the parties to the arbitration. The parties agree that the prevailing party in any arbitration shall be entitled to injunctive relief in any court of competent jurisdiction to enforce the arbitration award.
No Class Actions
YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR MEMBER OF ANY CLASS, COLLECTIVE, OR REPRESENTATIVE PROCEEDING except that users may bring a proceeding as a private attorney general, if and as allowed by law. Further, unless both you and Company agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. Nothing in this Agreement infringes upon any rights a user may have under the Sarbanes-Oxley Act, including any rights prohibiting compulsory arbitration.
Modifications to this Arbitration Provision
If Company makes any future change to this arbitration provision, other than a change to Company's address for Notice, you may reject the change by sending us written notice within 30 days of the change to Company' address for Notice, in which case your account with Company will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
If parts of Section 19 are found to be unenforceable or if the entirety of this Section 19 is found to be unenforceable, then the entirety of this Section 19 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 22 will govern any action arising out of or related to these Terms.
Right to Opt Out of Arbitration
You may submit a statement notifying Company that you wish to opt out and not be subject to arbitration under this section. Should you desire to opt out, you must notify Company of your intention to opt out by submitting a written notice, which may be via email to firstname.lastname@example.org, stating that you are opting out of this section. In order to be effective, your opt out notice must be provided within thirty (30) days of your agreeing to these Terms. Should you timely opt out of this section, you may pursue available legal remedies and will not be required to arbitrate claims.
You agree that any material breach of the Terms will result in irreparable harm to Company for which damages would be an inadequate remedy and, therefore, in addition to its rights and remedies otherwise available at law, Company will be entitled to equitable relief, including both a preliminary and permanent injunction, if such a breach occurs. You waive any requirement for the posting of a bond or other security if Company seeks such an injunction.
21. Notices; modification and termination of services; amendment of terms
Company may provide notice to users via email, regular mail, or posting notices or links to notices on the Site. Company reserves the right at any time to modify, suspend or terminate the services (or any part thereof), and/or use of or access to them, with or without notice. Company may also delete, or bar access to or use of, all related information and files. Company will not be liable to users or any third-party for any modification, suspension, or termination of service, or loss of related information. Company may amend these Terms at any time by posting the amended terms on this Site.
22. Governing law
These Terms are governed by the laws of the State of New York without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, then you and Company agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within New York City, New York for the purpose of litigating any dispute.
23. Digital Millenium Copyright Act
We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
Hindsight Advice, Inc.
ATTN: Legal Department (Copyright Notification)
100 Cambridge Street, 14th Floor, Boston, MA, 02114
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
a. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
b. A description of the copyright-protected work or other intellectual property right that you claim has been infringed;
c. A description of the material that you claim is infringing and where it is located on the Service;
d. Your address, telephone number, and email address;
e. A statement by you that you have a good faith belief that the use of those materials on the Service is not authorized by the copyright owner, its agent, or the law; and
f. A statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Company will promptly terminate without notice the accounts of users that are determined by Company to be “Repeat Infringers.” A Repeat Infringer is a user who has been notified of infringing activity at least twice.
24. Assignment and Delegation
25. Entire agreement
These Terms constitute the entire agreement between you and Company relating to their subject matter, and cancel and supersede any prior versions of the Terms. You may not assign or otherwise transfer the Terms or any right granted hereunder. You also may be subject to additional terms and conditions that may apply when you use Company or third-party products or services.
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.