Terms of Service
As updated January 2016
These Terms of Service include:
- Your agreement that the Service is provided “as is” and without warranty (Section 10).
- Your agreement that the Company has no liability regarding the Service (Section 11).
- Your consent to release the Company from liability based on the Service and generally (Section 11).
- agreement to indemnify the Company from claims due to your use or inability to use the Service or content submitted from your account to the Service (Section 12).
- Your consent that either party has the right to compel arbitration (Section 13).
- Your consent that no claims can be adjudicated on a class basis (Section 13).
1. Service Connects Families with Trusted Childcare Providers
Trusted enables people (“you” or “Users”) seeking child care services for children (“Child Care Services”) to be connected with qualified and experienced child care providers that have been selected by the Company (”Trusted Providers”). The Company provides Users with a roster of Trusted Providers available when and where you need them. The Company extensively vets each potential Trusted Provider and makes a determination to hire the Trusted Provider to be part of the Company’s Trusted Provider roster based on, among other things, a submitted application, background check, in-person interview, and reference check.
The child (or children) receiving the Child Care Services (“Child”) is a child for whom you have the authority to order Child Care Services, in your capacity as a parent, legal guardian or other relative. Trusted checks the background and experience of the Trusted Providers via third-party background check services and first party interviews; however you must decide whether the recommended Trusted Provider is suited to your needs.
Trusted enables Users to set the time, date, and location of the needed Child Care Services, to view available Trusted Providers and to select, book and pay a Trusted Provider, all within a mobile application. During the time when the Trusted Provider is providing Child Care Services to a Child (a “Job”), Users can communicate (text, call, email) with the Trusted Provider, as well as, upon consent given upon User’s registration for the Service, view images or a live video stream of the Job and be provided with geolocation information of the Child during the Job -- all within a mobile application. At the completion of the Job, Users can rate their Trusted Provider.
The Company may from time to time provide certain services, programs, promotions, opportunities and contests to Clients (“Trusted Programs”), descriptions of which, if any in effect, can be found at https://www.usetrusted.com/programs. Trusted may at any time in its sole discretion, change, modify, add to, supplement or delete the terms and conditions of any Trusted Program, including without limitation changing the name, fees and eligibility requirements to participate in such Trusted Program. The Company will endeavor to notify you of any material changes by email, but will not be liable for any failure to do so. In any case, the liability of any of Company’s partners pursuant to such Trusted Programs shall be limited as described in these Terms of Service, including but not limited to Section 12 of these Terms of Service. The Company’s general terms and conditions for promotional offers and programs (including offers and programs where you must redeem a promotional code as part of the offer or program) that are not otherwise described or made available on the Site or mobile application can be found https://www.usetrusted.com/generalpromos.
We will also create targeted emails, blog content, newsletters, social media posts, etc. as part of our marketing bill of materials in support of driving awareness and adoption of the Service from both the User and Trusted Provider perspective.
2. Scheduling, Billing, Payment and Your Use of the Service
Users of the Service contract for Child Care Services directly with the Company through the Site and mobile application. All communication regarding scheduling, billing and payment between a User and a Trusted Provider must be done within the Service through the mobile application; provided that in certain circumstances the User may be required to communicate directly with the Company by a phone call or email to coordinate a Job that may not otherwise be possible to coordinate using the mobile application, but in no circumstances shall User contact the Trusted Providers directly. In the event that you do not respect this clause, you may be terminated from using the Service.
Users of the Service will be required to provide their credit card and/or bank account details to the Company and the Payment Service Provider retained by the Company (the “PSP”).
Users may be required to register with the PSP, agree to Terms of Service of the PSP and go through a vetting process at the request of the PSP to set up their account with the PSP. Terms of Service between Users and the PSP retained by the Company are available here: https://www.braintreepayments.com/landing/gateway-terms-of-service (the “PSP Agreement”). By accepting these Terms of Service, each User agrees that they have downloaded or printed, and reviewed and agreed to the PSP Agreement. Please note that the Company is not a party to the PSP Agreement and that you, the PSP and any other parties listed in the PSP Agreement (currently, [Braintree]) are the parties to the PSP Agreement and that the Company has no obligations or liability to any User under the PSP Agreement.
We will charge your credit card according to the rates for Child Care Services published on our Site and mobile application from time to time. All published rates are inclusive of the fees of the Trusted Providers for the Child Care Services and Trusted’s fees for usage of the Site and mobile application (“Service Fees”). All Service Fees must be paid through the Service. Within 72 hours after Trusted receives confirmation from the Trusted Provider that a Job has been completed, User authorizes the Company to provide User’s payment details to the PSP for processing of Service Fees.
The Company reserves the right, in its sole discretion (but not the obligation), to (i) place on hold any out of pocket expenses, or (ii) refund, provide credits or arrange for the PSP to do so.
You may cancel any Job up to 90 minutes prior to the start of that Job. If you cancel within 90 minutes of the start of any Job, you will be charged for two hours of the Trusted Provider’s time. You authorize us to charge your credit card for any scheduled Job appointments that you do not cancel in accordance with this paragraph.
If a Trusted Provider is unable to make any scheduled Job and the Company receives sufficient advance notification from the Trusted Provider, the Company will inform User and make the Job available to other Trusted Providers, however, Trusted cannot guarantee that a replacement Trusted Provider will accept the Job in sufficient time. If no replacement Trusted Provider is available, you will not be charged for the Job. You agree to accept Child Care Services from any substitute Trusted Provider in the event that the scheduled Trusted Provider is unable to make the Job.
No refunds or credits will be provided once your credit card has been charged, except that at our sole discretion, refunds or credits may be granted in extenuating circumstances, as a result of specific promotions, or to correct any errors we have made.
If you have selected “transportation services in the User’s car” for any given Job, you understand that the Trusted Provider will drive your car for that Job and you represent you have all necessary insurance to cover any accidents or liability that may occur.
The Child Care Services do not include medical care of any kind, including emergency care, and no part of the Service Fees constitute compensation for any medical or emergency care. If an emergency occurs while a Trusted Provider is with a Child, neither the Trusted Provider nor the Company shall be liable for any damages resulting from any act or omission of the Trusted Provider. Whether a Trusted Provider renders emergency care is at the discretion of the Trusted Provider. Trusted Providers and, if applicable Trusted, shall be entitled to the full benefit of any “Good Samaritan” laws.
3. Acceptable Use; Public Areas
The Service will be made available to you upon you registration with the Company. Without limitation, while using the Service, Users may not:
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as, but not limited to, rights of privacy and publicity) of others, including Trusted Providers and the Company staff.
- Publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful topic, name, material or information.
- Use the Service for any purpose, including, but not limited to posting or completing a Job, in violation of local, state, national, or international law.
- Upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any third party.
- Upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another's computer.
- Post or upload any content to which you have not obtained any necessary rights or permissions to use accordingly.
- Advertise or offer to sell any goods or services for any commercial purpose.
- Conduct or forward surveys, contests, pyramid schemes, or chain letters.
- Impersonate another person or a User or allow any other person or entity to use your identification to post or view comments.
- Download any file posted by another User that a User knows, or reasonably should know, cannot be legally distributed through the Service.
- Restrict or inhibit any other User from using and enjoying the Public Areas.
- Imply or state that any statements you make are endorsed by the Company, without the prior written consent of the Company.
- Use a robot, spider, manual and/or automatic processes or devices to data-mine, data-crawl, scrape or index the Service in any manner.
- Hack or interfere with the Service, its servers or any connected networks.
- Adapt, alter, license, sublicense or translate the Service for your own personal or commercial use.
- Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks and rights owned by the Company.
- Upload content that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals.
- Upload content that provides materials or access to materials that exploit people under the age of 18 in an abusive, violent or sexual manner.
- Use the Service to solicit for any other business, website or service, or otherwise contact Users for employment, contracting or any purpose not related to use of the Service as set forth herein.
- Use the Service to collect usernames and or/email addresses of Users by electronic or other means.
- Register under different usernames or identities, after your account has been suspended or terminated.
The Service may contain profiles, email systems, blogs, message boards, applications, job postings, chat areas, news groups, forums, communities and/or other message or communication facilities (“Public Areas”) that allow the Company, Users and Trusted Providers to communicate with each other. The Company, Users and Trusted Providers may only use such community areas to send and receive messages and material that are relevant and proper to the applicable forum. You understand that all submissions made to Public Areas by Users (“Public Content”) will be public and not confidential and that you will be publicly identified by your name or login identification when communicating in Public Areas, and the Company will not be responsible
4. Account, Password, Security and Mobile Phone Use
You must register with the Company and create an account to use the Site, download the mobile application and use the Service. You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any password and account number provided by you or the Company for accessing the Service. You are solely and fully responsible for all activities that occur under your password or account. The Company has no control over the use of any User's account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you will contact the Company immediately.
By providing your mobile phone number and using the Service, you hereby affirmatively consent to Trusted and the Trusted Providers’ use of your mobile phone number for calls and texts in order to perform and improve upon the Service. The Company will not assess any charges for calls or texts, but standard message charges or other charges from your wireless carrier may apply. You may opt-out of receiving text messages from us by modifying your account settings on the Site or the Company’s mobile application, or by emailing us at [email protected]
5. Child Information and Personal Information
You hereby grant the Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise all copyright, publicity rights, and any other rights you have in your Personal Information, excluding the Child Information, in any media now known or not currently known in order to perform and improve upon the Service.
6. Termination and Suspension
The Company may terminate or suspend your right to use the Service at any time for any or no reason by providing you with written or email notice of such termination, and termination will be effective immediately upon delivery of such notice.
Without limitation, the Company may terminate or suspend your right to use the Service if you breach any term of this Agreement or any policy of the Company posted through the Service from time to time, or if the Company otherwise finds that you have engaged in inappropriate and/or offensive behavior. If the Company terminates or suspends your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, the Company reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
Even after your right to use the Service is terminated or suspended, this Agreement will remain enforceable against you.
You may terminate this Agreement at any time by ceasing all use of the Service. All sections which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
7. Links to Other Websites
Links (such as hyperlinks) from the Service to other sites on the Web do not constitute the endorsement by the Company of those sites or their content. Such links are provided as an information service, for reference and convenience only. The Company does not control any such sites, and is not responsible for their content. The existence of links on the Service to such websites (including without limitation external websites that are framed by the Company Service as well as any advertisements displayed in connection therewith) does not mean that the Company endorses any of the material on such websites, or has any association with their operators. It is your responsibility to evaluate the content and usefulness of the information obtained from other sites.
As part of the functionality of the Service, you may link your account with online accounts you may have with third party service providers (each such account, a “Third Party Account”) by either: (i) providing your Third Party Account login information through the Service; or (ii) allowing the Company to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to the Company and/or grant the Company access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating the Company to pay any fees or making the Company subject to any usage limitations imposed by such third party service providers. By granting the Company access to any Third Party Accounts, you understand that (i) the Company may access, make available and store (if applicable) any content that you have provided to and stored in your Third Party Account (the “SNS Content”) so that it is available on and through the Service via your account, including without limitation any friend lists, and (ii) the Company may submit and receive additional information to your Third Party Account to the extent you are notified when you link your account with the Third Party Account. Unless otherwise specified in these Terms of Service, all SNS Content, if any, shall be considered Personal Information for all purposes of these Terms of Service. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts may be available on and through your account on the Service. Please note that if a Third Party Account or associated service becomes unavailable or the Company’s access to such Third Party Account is terminated by the third party service provider, then SNS Content may no longer be available on and through the Service. You will have the ability to disable the connection between your account on the Service and your Third Party Accounts at any time. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. The Company makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and the Company is not responsible for any SNS Content. You acknowledge and agree that the Company may access your e-mail address book associated with a Third Party Account and your contacts list stored on your mobile device or tablet computer solely for the purposes of identifying and informing you of those contacts who have also registered to use the Service. At your request made via e-mail to [email protected], the Company will deactivate the connection between the Service and your Third Party Account and delete any information stored on the Company’s servers that was obtained through such Third Party Account, except the username and profile picture that become associated with your account.
8. Intellectual Property Rights
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content (collectively “Proprietary Material”) that Users see or read through the Service is owned by the Company, excluding Personal Information that the Company has the right to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. The Company owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws of copyright, patents, and other proprietary rights and laws. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the Service without the Company's express prior written consent and, if applicable, the holder of the rights to the Personal Information. Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of the Company and, if applicable, the holder of the rights to the Personal Information.
The service marks and trademarks of the Company, including without limitation the Company and the Company logos are service marks owned by the Company. Any other trademarks, service marks, logos and/or trade names appearing via the Service are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
9. Copyright Complaints and Copyright Agent
The Company respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials provided on or in connection with the Service infringe upon your copyright or other intellectual property right, please send the following information to the Company's Copyright Agent at: Trusted Labs, Inc., 44 Tehama Street, San Francisco, California 94105 or [email protected]
1. A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the Service where the material you claim is infringed is located. Include enough information to allow the Company to locate the material, and explain why you think an infringement has taken place;
2. A description of the location where the original or an authorized copy of the copyrighted work exists -- for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
3. Your address, telephone number, and e-mail address;
4. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
5. A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner's behalf; and
6. An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
10. Disclaimer of Warranties
USE OF THE SERVICE IS ENTIRELY AT YOUR OWN RISK.
THE SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE SERVICE OR THE CONTENT OF ANY SITES LINKED TO THE SERVICE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, OTHER THAN AS PROVIDED HEREIN. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
WITHOUT LIMITING THE FOREGOING, NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT ACCESS TO THE SERVICE WILL BE UNINTERRUPTED OR THAT THE SERVICE WILL BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS OR CONTENT OF ANY TASK OR SERVICE, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE SERVICE.
NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER.
NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE SERVICE IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS.
COMPANY AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
11. No Liability
YOU ACKNOWLEDGE AND AGREE THAT COMPANY IS ONLY WILLING TO PROVIDE THE SERVICE IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABLITY TO YOU AND THIRD PARTIES. THEREFORE, YOU AGREE NOT TO HOLD COMPANY, ITS AFFILIATES, ITS LICENSORS, ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS LIABLE FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, “LIABILITIES”) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR OR ANY OTHER PARTY’S USE OF OR INABILITY TO USE THE SERVICE, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT THAT IS SEXUAL OR OTHERWISE, ACTS OF PHYSICAL VIOLENCE, AND DESTRUCTION OF PERSONAL PROPERTY), ANY DISPUTE WITH ANY USER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY COMPANY OR ITS AFFILIATES OR LICENSORS AND ANY DESTRUCTION OF YOUR INFORMATION, OTHER THAN PURSUANT TO THE PROTECTION PLEDGE TERMS.
UNDER NO CIRCUMSTANCES WILL COMPANY, ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
COMPANY DOES NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE SERVICE.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT COMPANY OR ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS IS LIABLE FOR DAMAGES IN EXCESS OF THE PROTECTION PLEDGE TERMS, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO COMPANY DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE.
You hereby agree to indemnify, defend, and hold harmless the Company, its directors, officers, employees, agents, licensors, attorneys, independent contractors, providers, subsidiaries, and affiliates from and against any and all claim, loss, expense or demand of liability, including attorneys' fees and costs incurred, in connection with (i) your use or inability to use the Service, or (ii) any content submitted by you or using your account to the Service, including, but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful. The Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the written consent of the Company.
13. Dispute Resolution
INFORMAL NEGOTIATIONS. To expedite resolution and reduce the cost of any dispute, controversy or claim related to this Agreement (“Dispute”), you and the Company agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon written notice. Your address for such notices is your billing address, with an email copy to the email address you have provided to the Company. The Company’s address for such notices is Trusted Labs, Inc., 44 Tehama Street, San Francisco California, 94105 Attention: Legal.
BINDING ARBITRATION. If you and the Company are unable to resolve a Dispute through informal negotiations, all claims arising from use of the Service (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT IF EITHER PARTY ELECTS TO ARBITRATE, NEITHER PARTY WILL HAVE THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). If your claim for damages does not exceed $10,000, the Company will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and the Company may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
EXCEPTIONS TO ALTERNATIVE DISPUTE RESOLUTION. Each party retains the right to bring an individual action in small claims court or to seek injunctive or other equitable relief on an individual basis in a federal or state court in San Francisco County, California with respect to any dispute related to the actual or threatened infringement, misappropriation or violation of a party’s intellectual property or proprietary rights.
WAIVER OF RIGHT TO BE A PLAINTIFF OR CLASS MEMBER IN A PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. You and the Company agree that any arbitration will be limited to the Dispute between the Company and you individually. YOU ACKNOLWEDGE AND AGREE THAT YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and the Company otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” Section will be deemed null and void.
LOCATION OF ARBITRATION. Arbitration will take place in San Francisco County, California. You and the Company agree that for any Dispute not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, the California state and Federal courts located in San Francisco, California have exclusive jurisdiction and you and the Company agree to submit to the personal jurisdiction of such courts.
14. Governing Law
You and the Company agree that, other than as set forth under the subsection entitled “Waiver Of Right To Be A Plaintiff Or Class Member In A Purported Class Action Or Representative Proceeding” in Section 13 above, if any portion of Section 13 entitled “Dispute Resolution” is found illegal or unenforceable, that portion will be severed and the remainder of the section will be given full force and effect. Notwithstanding the foregoing, if the subsection entitled “Exceptions to Alternative Dispute Resolution” in Section 13 is found to be illegal or unenforceable, neither you nor the Company will elect to arbitrate any Dispute falling within that portion of that subsection that is found to be illegal or unenforceable and such Dispute will be decided by a court of competent jurisdiction within San Francisco, California, and you and the Company agree to submit to the personal jurisdiction of that court.
Except as expressly provided otherwise, this Agreement will be is governed by, and will be construed under, the laws of the State of California, without regard to choice of law principles.
15. Special Promotions
The Company may from time to time provide certain promotional opportunities, sweepstakes and contests to Users. All such promotions will be run at the sole discretion of the Company, and can be activated, modified or removed at any time by the Company without advance notification and the liability of any of the Company’s partners pursuant to such promotional opportunities, sweepstakes and contests shall be limited pursuant to these Terms of Service, including but not limited to Section 11 of these Terms of Service.
16. No Agency
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
17. General Provisions
Failure by the Company to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right, will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws rules. This Agreement constitutes the entire agreement between you and the Company with respect to its subject matter. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will be enforced to the fullest extent possible, and the remaining provisions will remain in full force and effect. This Agreement will inure to the benefit of the Company, its successors and assigns.
18. Changes to this Agreement and the Service