READ THESE TERMS CAREFULLY BEFORE BROWSING THIS WEBSITE OR OTHERWISE USING THE FRESH CHALK SERVICE. USING ANY PART OF THE FRESH CHALK SERVICE INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS. YOU CANNOT USE THE FRESH CHALK SERVICE IF YOU DO NOT ACCEPT THESE TERMS.
THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH FRESH CHALK.
We may alter the Materials, Services or Mobile Application and/or may choose to discontinue the Fresh Chalk Service at any time and without notifying you. Some new features and enhancements may require the payment of additional fees, and Fresh Chalk will determine at its sole discretion whether access to any other such new features and/or enhancements will require an additional fee. We may also change, update, add or remove provisions (collectively, "modifications") of these Terms from time to time. Because everyone benefits from clarity, we promise to inform you of any modifications to these Terms by posting them on our Website
If you object to any such modifications, your sole recourse shall be to cease all use of the Fresh Chalk Service. Continued use of any part of the Fresh Chalk Service following notice of any such modifications indicates you acknowledge and agree to be bound by the modifications. Also, please know that these Terms may be superseded by expressly-designated legal notices or terms located on particular pages of the Website or associated with specific Services. These expressly-designated legal notices or terms are incorporated into these Terms and supersede these Terms.
We invite you to use the Fresh Chalk Service for individual, consumer purposes ("Permitted Purposes"). By using the Fresh Chalk Service, you promise that you are at least 13 years of age. If you are not yet 18 years old, you must have the permission of an adult to use the Fresh Chalk Service and agree to these Terms, and that adult must be a parent or legal guardian who is willing be responsible for your use of the Fresh Chalk Service.
In these Terms we are granting you a limited, personal, non-exclusive and non-transferable license to use and to display the Materials; your right to use the Materials is conditioned on your compliance with these Terms. You have no other rights in this Website or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of this Website or Materials in any manner. If you make copies of any of this Website or our Materials while engaging in Permitted Purposes then we ask that you be sure to keep on the copies all of our copyright and other proprietary notices as they appear on this Website and the applicable Materials.
Unfortunately, if you breach any of these Terms, all licenses granted in these Terms will terminate automatically and you must immediately destroy any downloaded or printed Materials (and any copies thereof).
We may permit use of the Fresh Chalk Service available through the use of Apple or Android mobile applications (each a "Mobile Application"). Use of such Mobile Applications requires a mobile device that is compatible with the applicable Mobile Application. Fresh Chalk does not warrant that the Mobile Applications will be compatible with every mobile device. Subject to your compliance with these Terms, Fresh Chalk grants you a limited, non-exclusive, non-transferable, revocable, license to install a copy of the Mobile Application on a mobile device owned or leased by you. You acknowledge that Fresh Chalk may from time to time issue upgraded versions of the Mobile Application, and may automatically electronically upgrade the version of the Mobile Application that is being used on your mobile device. You hereby consent to such automatic upgrading and agree that these Terms will apply to all such upgrades. The foregoing license grant is not a sale of the Mobile Application or any copy thereof, and Fresh Chalk and its third-party licensors or suppliers retain all right, title, and interest in and to the Mobile Application (and any copy of the Mobile Application). Standard carrier data charges may apply to use of the Mobile Application. You acknowledge that all User Content is stored on the mobile device on which the Mobile Application is installed and is not stored by Fresh Chalk. Removal of the Mobile Application from your mobile device will delete all User Content from the mobile device. You are therefore solely responsible for ensuring that your mobile device and User Content are properly backed up.
The following additional terms and conditions apply with respect to any Mobile Application that we provide to you designed for use on an Apple iOS-powered mobile device (an "iOS App"):
You acknowledge that these Terms are between you and Fresh Chalk only, and not with Apple, Inc. ("Apple").
Your use of our iOS App must comply with Apple's then-current App Store Terms of Service.
You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
You agree to comply with all applicable third-party terms of agreement when using our iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
The following additional terms and conditions apply with respect to any Mobile Application that we provide to you designed for use on an Android-powered mobile device (an "Android App"):
You acknowledge that these Terms are between you and Fresh Chalk only, and not with Google, Inc. ("Google").
Your use of our Android Application must comply with Google's then-current Android Market Terms of Service.
Google is only a provider of the Android Market where you obtained the Android Application. We, and not Google, are solely responsible for our Android Application and the services and content available thereon. Google has no obligation or liability to you with respect to our Android Application or these Terms.
You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to our Android Application
PASSWORD RESTRICTED SERVICES AND MATERIALS.
We appreciate your decision to use the Fresh Chalk Service. You need not register with us to simply visit and view the Website. However, in order to use the Fresh Chalk Service as a subject matter expert or to access other password-protected features of the Services, you must successfully register an account with us.
If you want an account with us, you must provide your name and a username, email address, password and other information. Once you submit the required registration information, we alone will determine whether or not to approve your proposed account. If approved, you will be permitted to log in to your account with your password.
For so long as you use the account, you agree to provide true, accurate, current, and complete information which can be accomplished by logging into your account and making relevant changes. You are responsible to maintain the confidentiality of your password. Should you believe your password or security has been breached in any way, you must immediately notify us.
You agree to pay any fees applicable to your use of the Fresh Chalk Service. We may suspend or terminate your account and/or access to the Fresh Chalk Service if your payment is late and/or your offered payment method cannot be processed. By providing a payment method, you expressly authorize us to charge the applicable fees on said payment method as well as taxes and other charges incurred thereto at regular intervals, all of which depend on your particular membership and utilized services.
By using Fresh Chalk Service and/or the Materials, you consent to receiving electronic communications from us, including via e-mail, text message, calls, and push notifications to your mobile device. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Fresh Chalk Service. These electronic communications are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing. You should be aware that your carrier may charge you standard text messaging rates for each message sent or received. You represent to us that you are the owner or authorized user of the wireless device used to receive or send any text messages related to the Fresh Chalk Service.
LINKS TO THIRD-PARTY SITES.
We think links are convenient, and we sometimes provide links on the Fresh Chalk Service to third-party websites. If you use these links, you will leave the Fresh Chalk Service. We provide these links to you as a convenience, and we do not verify, make any representations or take responsibility for such Third-Party Sites, including, without limitation, the truthfulness, accuracy, quality or completeness of the content, services, links displayed and/or any other activities conducted on or through such third-party sites. Therefore, unless specifically stated in writing on our Website, in the Mobile Application or otherwise, we do not endorse or make any representations about such websites or any information, material or results that may be obtained from using them. If you decide to access any of the third-party websites linked to from the Fresh Chalk Service, you do this entirely at your own risk and you must follow the privacy policies and terms and conditions for those third-party websites. YOU AGREE THAT FRESH CHALK WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD-PARTY.
You are responsible for any information, messages, comments, photos, videos, graphics, sounds and other content or material that you submit, upload, post or otherwise make available on, to or through the Fresh Chalk Service ("User Content"). You agree that any such User Content is considered both non-confidential and non-proprietary. Further, we do not guarantee that you will be able to edit or delete any User Content you have submitted.
By transmitting, uploading or otherwise providing any User Content, you are promising us that:
You own all rights in your User Content (including, without limitation, all rights to the reproduction and display of your User Content) or, alternatively, you have acquired all necessary rights in your User Content to enable you to grant to us the rights in your User Content as described in these Terms;
You have paid and will pay in full all license fees, clearance fees, and other financial obligations, of any kind, arising from any use or commercial exploitation of your User Content;
Your User Content does not infringe the copyright, trademark, patent, trade secret, or other intellectual property rights, privacy rights, or any other legal or moral rights of any third party;
You voluntarily agree to waive all "moral rights" that you may have in your User Content;
Any information contained in your User Content is not known by you to be false, inaccurate, or misleading;
Your User Content does not violate any law (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising);
Your User Content is not, and may not reasonably be considered to be, defamatory, libelous, hateful, racially, ethnically, religiously, or otherwise biased or offensive, unlawfully threatening, or unlawfully harassing to any individual, partnership, or corporation, vulgar, pornographic, obscene, or invasive of another's privacy;
You were not and will not be compensated or granted any consideration by any third party for submitting your User Content;
Your User Content does not incorporate materials from a third-party website, or addresses, email addresses, contact information, or phone numbers (other than your own);
Your User Content does not contain any viruses, worms, spyware, adware, or other potentially damaging programs or files;
Your User Content does not contain any information that you consider confidential, proprietary, or personal; and
Your User Content does not contain or constitute any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation.
By submitting User Content, you grant to Fresh Chalk an irrevocable, perpetual, transferable, non-exclusive, fully-paid, worldwide, royalty-free license (sublicensable through multiple tiers) to:
Use, distribute, reproduce, modify, adapt, publish, translate, publicly perform, and publicly display your User Content (or any modification thereto), in whole or in part, in any format or medium now known or later developed;
Use (and permit others to use) your User Content in any manner and for any purpose (including, without limitation, commercial purposes) that we deem appropriate in our sole discretion (including, without limitation, to incorporate your User Content or any modification thereto, in whole or in part, into any technology, product, or service);
Display advertisements in connection with your User Content and to use your User Content for advertising and promotional purposes.
We may, but are not obligated to, pre-screen User Content or monitor any area of the Fresh Chalk Service through which User Content may be submitted. We are not required to host, display, or distribute any User Content on or through the Fresh Chalk Service and may remove at any time or refuse any User Content for any reason. We are not responsible for any loss, theft, or damage of any kind to any User Content. Further, you agree that we may freely disclose your User Content to any third party absent any obligation of confidence on the part of the recipient.
To be clear, we authorize your use of the Fresh Chalk Service only for Permitted Purposes. Any other use of the Fresh Chalk Service beyond the Permitted Purposes is prohibited and, therefore, constitutes unauthorized use of this Website. This is because as between you and us, all rights in the Fresh Chalk Service remain our property.
Unauthorized use of the Fresh Chalk Service may result in violation of various United States and international copyright laws. Because we prefer keeping this relationship drama-free, we want to give you examples of things to avoid. So, unless you have written permission from us stating otherwise, you are not authorized to use the Fresh Chalk Service or any part thereof in any of the following ways (these are examples only and the list below is not a complete list of everything that you are not permitted to do):
For any commercial purpose which includes use of the Fresh Chalk Service or any of our Materials on another site or through a networked computer environment;
In a manner that modifies, publicly displays, publicly performs, reproduces or distributes any part of the Fresh Chalk Service;
In a manner that violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law;
To stalk, harass, or harm another individual;
To impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity;
To interfere with or disrupt the Fresh Chalk Service or the servers or networks connected to the Fresh Chalk Service;
To use any data mining, robots, or similar data gathering or extraction methods in connection with the Fresh Chalk Service; or
Attempt to gain unauthorized access to any portion of the Fresh Chalk Service or any other accounts, computer systems, or networks connected to the Fresh Chalk Service, whether through hacking, password mining, or any other means.
You agree to hire attorneys to defend us if you violate these Terms and that violation results in a problem for us. You also agree to pay any damages that we may end up having to pay as a result of your violation. You alone are responsible for any violation of these Terms by you. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with our defense of such claim. If you are a New Jersey resident, this clause is to be only as broad and inclusive as is permitted by the law of the state of New Jersey.
INTERACTIONS WITH OTHER USERS
Interaction between users
You are solely responsible for all interactions with other users and expressly acknowledge and agree that Fresh Chalk does not have any control over any user's authenticity, integrity, abilities or responsivities. You agree to hold Fresh Chalk and its officers, directors, agents, investors, and employees harmless for any damage, suits, claims, disputes or controversies whatsoever arising from any relationship developed on or in connection with your use of the Fresh Chalk Service.
No agency or partnership
No agency, partnership, joint venture, or employment is created as a result of these Terms or your use of any part of the Fresh Chalk Service. Fresh Chalk does not serve as an employer of any user of the Fresh Chalk Service and you do not have any authority whatsoever to bind us in any respect.
Disputes between users
Your interactions with individuals and/or organizations found on or through the use of the Fresh Chalk Service are solely between you and such individual or organization. You should take reasonable precautions and make whatever investigation or inquiries you deem necessary or appropriate before proceeding with any online or offline communication or transaction with any third party.
You understand that deciding whether to use information obtained through your use of the Fresh Chalk Service is your personal decision for which you alone are responsible. You understand that we do not and cannot make representations as to the suitability of any individual you may decide to interact with on or through the Fresh Chalk Service and/or the accuracy or suitability of any advice, information, or recommendations made by any individual.
IF THERE IS A DISPUTE BETWEEN USERS OF THE FRESH CHALK SERVICE, OR BETWEEN ANY USER OF THE FRESH CHALK SERVICE AND ANY THIRD PARTY, YOU ACKNOWLEDGE AND AGREE THAT WE ARE UNDER NO OBLIGATION TO BECOME INVOLVED. IN THE EVENT THAT A DISPUTE ARISES BETWEEN YOU AND ANY THIRD PARTY, YOU HEREBY RELEASE US, OUR OFFICERS, MANAGERS, MEMBERS, DIRECTORS, EMPLOYEES, ATTORNEYS, AGENTS, AND SUCCESSORS IN RIGHTS FROM ANY CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, FORESEEABLE OR UNFORESEEABLE, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATED TO SUCH DISPUTES AND/OR THE FRESH CHALK SERVICE. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §** 1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."**
The Fresh Chalk Service includes registered and unregistered trademarks that belong to us. Other trademarks, names and logos found in the Fresh Chalk Service are the property of their respective owners.
Unless otherwise specified in these Terms, all Materials, including the arrangement of them in the Fresh Chalk Service are our sole property or the property of our licensors. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner.
The Mobile Application and related documentation that are provided to you are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, if you are a government entity, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
INTELLECTUAL PROPERTY INFRINGEMENT.
We respect the intellectual property rights of others and encourage you to do the same. Accordingly, we have a policy of removing User Content that violate intellectual property rights of others, suspending access to the Fresh Chalk Service (or any portion thereof) to any user who uses any part of it in violation of someone's intellectual property rights, and/or terminating in appropriate circumstances the account of any user who uses the Fresh Chalk Service in violation of someone's intellectual property rights.
Pursuant to Title 17 of the United States Code, Section 512, we have implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If you believe your copyright or other intellectual property right is being infringed by an the Fresh Chalk Service user, please provide written notice to our agent for notice of claims of infringement.
Unless the notice pertains to copyright or other intellectual property infringement, our agent will be unable to address the listed concern.
Termination of Repeat Infringers
We reserve the right, in our sole discretion, to terminate the account or access of any user of the Fresh Chalk Service who is the subject of repeated DMCA or other infringement notifications.
DISCLAIMER OF WARRANTIES.
THE FRESH CHALK SERVICE IS PROVIDED "AS IS" AND "WITH ALL FAULTS" AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE FRESH CHALK SERVICE IS WITH YOU. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO THE FRESH CHALK SERVICE, WHICH INCLUDES BUT IS NOT LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. THIS MEANS THAT WE DO NOT PROMISE YOU THAT THE FRESH CHALK SERVICE IS FREE OF PROBLEMS.
Without limiting the generality of the foregoing, we make no warranty that the Fresh Chalk Service or any part thereof will meet your requirements or that the Fresh Chalk Service will be uninterrupted, timely, secure, or error free or that defects in the Fresh Chalk Service will be corrected. We make no warranty as to the results that may be obtained from the use of the Fresh Chalk Service or as to the accuracy or reliability of any information obtained through the Fresh Chalk Service. No advice or information, whether oral or written, obtained by you through the Fresh Chalk Service, from Fresh Chalk or our subsidiaries/other affiliated companies shall create any warranty. We disclaim all equitable indemnities.
LIMITATION OF LIABILITY.
YOU ARE USING THE MATERIALS AND FRESH CHALK SERVICE AT YOUR SOLE RISK. NEITHER FRESH CHALK NOR ITS OFFICERS, DIRECTORS, AGENTS, INVESTORS, OR EMPLOYEES SHALL BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR USE OF THE FRESH CHALK SERVICE OR YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THE FRESH CHALK SERVICE. IN NO EVENT SHALL FRESH CHALK BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, COST OF SUBSTITUTE GOODS AND SERVICES, USE, OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF WE KNOW THERE IS A POSSIBILITY OF SUCH DAMAGE. IF YOU ARE A NEW JERSEY RESIDENT, THIS LIMITATION OF LIABILITY SECTION IS TO BE ONLY AS BROAD AND INCLUSIVE AS IS PERMITTED BY THE LAW OF THE STATE OF NEW JERSEY.
YOU ACKNOWLEDGE AND AGREE THAT WE DO NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND CHECKS ON ANY USER, INCLUDING, BUT NOT LIMITED TO USERS REGISTERED AS SUBJECT MATTER EXPERTS. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE FRESH CHALK SERVICE, AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE THEREOF. YOU UNDERSTAND THAT WE DO NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE FRESH CHALK SERVICE. WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE FRESH CHALK SERVICE OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE FRESH CHALK SERVICE. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH ANY PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE FRESH CHALK SERVICE, INCLUDING, BUT NOT LIMITED TO, BUSINESSES AND PROFESSIONALS, PARTICULARLY IF YOU MEET OFFLINE OR IN PERSON. WE EXPLICITLY DISCLAIM ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY USER OF THE FRESH CHALK SERVICE AND ALL OTHER THIRD PARTIES.
We assume no responsibility for any error, omission, interruption, deletion, defect, delay in operations or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, user communications, nor are we responsible for any problems or technical malfunctions whatsoever including, but not limited to, malfunctions of telephone networks or lines, computer online systems, servers or providers, computer equipment, software, failure of email, traffic congestion on the internet or at any website. Such malfunctions further include damage or injury to your or any other person's computer or device relating to or resulting from participation or use of the Fresh Chalk Service.
LOCAL LAWS; EXPORT CONTROL.
We control and operate the Fresh Chalk Service from our headquarters in the United States of America and the entirety of the Fresh Chalk Service may not be appropriate or available for use in other locations. If you use the Fresh Chalk Service or any part of the Fresh Chalk Service outside the United States of America, you are solely responsible for following applicable local laws.
If you send or transmit any communications, comments, questions, suggestions, or related materials to us, whether by letter, email, telephone, or otherwise (collectively, "Feedback"), suggesting or recommending changes to the Fresh Chalk Service, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and we are free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. Where the foregoing assignment is prohibited by law, you hereby grant us an exclusive, transferable, worldwide, royalty-free, fully paid up license (including the right to sublicense) to use and exploit all Feedback as we may determine in our sole discretion. You understand and agree that we are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER.
Please Read This Provision Carefully. It Affects Your Legal Rights.
This Dispute Resolution and Arbitration; Class Action Waiver provision (this "Provision") facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between you and Fresh Chalk. Effectively, then, "dispute" is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to you (such as our licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
This Provision provides that all disputes between you and us shall be resolved by binding arbitration because acceptance of these Terms constitutes a waiver of your right to litigation claims and all opportunity to be heard by a judge or jury. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney's fees). You may, however, opt-out of this Provision which means you would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). BOTH YOU AND FRESH CHALK AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give us an opportunity to resolve the Dispute which is first done by emailing us at [firstname.lastname@example.org] the following information: (1) Your name, (2) Your address, (3) A written description of your Claim, and (4) A description of the specific relief you seek. If we do not resolve the Dispute within 45 days after receiving your notification, then you may pursue your Dispute in arbitration. You may pursue your dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or we may choose to pursue a Dispute in court and not by arbitration if: (a) The dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the "Opt-Out Deadline"). You may opt-out of this Provision by emailing us at [email@example.com] the following information: (1) Your name; (2) Your address; (3) A clear statement that you do not wish to resolve disputes with us through arbitration. Either way, we will not take any decision you make personally. In fact, we promise that your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with us. But, we do have to enforce the Opt-Out Deadline so keep in mind that *any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your dispute in arbitration or small claims court. *
If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or we may initiate arbitration proceedings. The American Arbitration Association ("AAA"), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA's Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA's Commercial Arbitration Rules will apply. In either instance, the AAA's Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because the Fresh Chalk Service and these Terms concern interstate commerce, the Federal Arbitration Act ("FAA") governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or we may initiate arbitration in either Washington State or the federal judicial district that includes your billing address. In the event that you select the latter, we may transfer the arbitration to Washington State so long as we agree to pay any additional fees or costs which the arbitrator determines you incur as a result of the transfer.
Payment of Arbitration Fees and Costs – So long as you place a request in writing prior to commencement of the arbitration, we will pay all arbitration fees and associated costs and expenses. But, you will still be responsible for all additional fees and costs that you incur in the arbitration which include but are not limited to attorneys' fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if you provide notice and negotiate in good faith with us as provided in the section above titled "Pre-Arbitration Claim Resolution" and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney's fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and we specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of this Website can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
You understand and agree that by accepting this Provision in these Terms, you and we are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and we might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court.
This Provision shall survive the termination of your account with us or our affiliates and your discontinued use of the Fresh Chalk Service. Notwithstanding any provision in this Agreement to the contrary, we agree that if we make any change to this Provision (other than a change to the Notice Address), you may reject any such change and require us to adhere to the language in this Provision if a dispute between us arises.
We think direct communication resolves most issues – if we feel that you are not complying with these Terms, we will tell you. We will even provide you with recommended necessary corrective action(s) because we value this relationship.
However, certain violations of these Terms, as determined by us, may require immediate termination of your access to this Website without prior notice to you. The Federal Arbitration Act, Washington state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. Except for disputes subject to arbitration as described above, any disputes relating to these Terms or this Website will be heard in the courts located in King County, Washington. If any of these Terms are deemed inconsistent with applicable law, then such term(s) shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. By choosing not to enforce any of these Terms, we are not waiving our rights. These Terms are the entire agreement between you and us and, therefore, supersede all prior or contemporaneous negotiations, discussions or agreements between you and Fresh Chalk about the Fresh Chalk Service. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
If you have any questions about these Terms or otherwise need to contact us for any reason, you can reach us by email: [firstname.lastname@example.org].