MoxieReader: Terms of Service


     

The following are the terms of service (“Terms of Service”) that define the relationship between Moxie Methods, Inc. (doing business as “MoxieReader,” “we,” “us,” or “Company”) and you, and govern your use of MoxieReader’s services.

Agreeing to our Terms

Thank you for your interest in MoxieReader, which owns and operates the services offered on MoxieReader.com (“MoxieReader Website”) and any associated web and mobile applications (“MoxieReader Apps”), or products and services that Company may provide now or in the future (collectively, the “Service”).

When using the Service, you also will be subject to the MoxieReader Privacy Policy and any posted guidelines, policies or rules applicable to specific features of the MoxieReader Site or MoxieReader Apps, which may be posted from time to time (collectively the “Guidelines”). These Terms of Service, including any other Guidelines and future modifications (collectively, the “Agreement”) govern your use of the Service and is a legal contract between you and MoxieReader. By registering for an account on, or otherwise accessing or using the MoxieReader Service, you acknowledge that you have read and agree to be bound by this Agreement. If you are using the Service on behalf of an institution that has a separate written agreement with MoxieReader, that agreement governs your use of the Service.

If you are under the age of 18, you represent that your current classroom teacher or legal guardian has reviewed and agreed to the Agreement. If you don’t get your teacher, parent or guardian to read and agree to the Agreement, you don’t have permission to use the Service.

If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “you”, “your” or “Member” shall refer to such entity. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and may not use the Service

 

Using the Service

As long as you are complying with the terms and conditions of this Agreement, Company gives you permission to access and use the Service that you select through the applicable registration process.

The Service is available for your personal, noncommercial use.

We constantly change and improve our Services. We may add or remove functionalities or features, and we may suspend or stop a Service altogether; including, for example, if you do not comply with this Agreement or if we are investigating suspected misconduct. You can stop using our Service at any time. We also may stop providing our Service to you, or add or create new limits to our Service or restrict your access to all or a part of the Service at any time without notice or liability. Use of our website and certain portions of the MoxieReader service are free; but most of our Service requires (or will) a fee-based license. Please also be aware that when you access the MoxieReader mobile apps through a wireless service, your carrier’s normal rates and fees still apply, such as data fees.

The right to access and use the Service is revoked in jurisdictions where it may be prohibited, if any.

 

Your Information and Content

In the course of using the Service, you and other users may provide information which may be used by MoxieReader in connection with the Service and which may be visible to certain other users. Please visit our Privacy Policy for additional information on the types of information different types of users may provide. Additionally, some User Submissions may be deemed an Education Record (as defined below).

You retain all ownership rights you have in any information or data you enter into the Moxie Reader Service.

In order to allow MoxieReader to provide the Service, you hereby grant to us a limited, non-exclusive, sub licensable (as necessary to perform the Service), worldwide, royalty-free, and transferable (only to a successor) right and license to (i) use, copy, store, distribute, display, modify, and create derivative works (such as changes we make so that your information works better with our Service) such User information as necessary to provide, improve and make the Service available to you and other users, including through any future media in which the Service may be distributed, (ii) use and disclose metrics and analytics regarding the User activity in an aggregate or other non-personally identifiable manner (including, for use in improving our service or in marketing and business development purposes), (iii) use any User information (including any Education Record) that has been de-identified for any product development, research or other purpose; and (iv) use for other purposes permitted by the MoxieReader Privacy Policy.

Company will only share and use your personally identifiable information in accordance with MoxieReader’s current Privacy Policy.

The license in (i) above will terminate when you delete any User information, you or your Institution (as defined below) deletes an Education Record, you delete any personal information, or you delete your account, unless your content has been shared with others, and they have not deleted it. Note, however, that any User information that is used in a de-identified way may be kept after you delete your account. When you delete information, it is deleted in a manner similar to deletion on a computer. However, you understand that any removed information may persist in backup copies for a reasonable period of time (but will not be available to others). You are responsible for making sure that you have all rights to enter information into the Service, including the rights necessary for you to grant us the foregoing licenses to the information.

All information posted or transmitted through the Service is the responsibility of the person that posted it, and we will not be liable for any errors or omissions. MoxieReader cannot guarantee the identity of any other users with whom you may interact in the course of using the Service, or the authenticity of any data which users may provide. You acknowledge that all content accessed by you using the Service is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom. We reserve the right to remove User information from the Service at any time for any reason.

Our automated systems analyze your User information (including emails) to provide you personally relevant product features, such as personalized book recommendations, and for spam and malware detection. This analysis occurs as the content is sent, received, and when it is stored. MoxieReader analyzes student information and app activity only for the purpose of providing adaptive or customized student learning purposes.

We always appreciate your feedback or other suggestions about MoxieReader, but you understand that we may use your feedback or suggestions without any obligation to compensate you for them.

 

Privacy

Your privacy is extremely important to us, and we take great care to limit what we collect and how we use it, and to enable you to understand our policies. Please read our Privacy Policy which explains how we treat your personal information and protect your privacy when you use our Service. By using our Service, you agree that MoxieReader can use such data in accordance with our Privacy Policy.

 

Additional Terms by User Type

a) Students: if you are a student accessing the Service at the invitation of a teacher or other school official, the following terms apply to you.

(i) Only students who have been given access to the Service by their teacher, school, or district may use the Service. You may not access or use the Service unless you are given access to the Service by a teacher, school, or district who is authorized to give you access to the Service.

(ii) We request minimal personal information to be provided for students by their teacher: first name or username name understandable to the teacher and student, grade, and reading level details. If you are a student, please do not provide any personal information about yourself to us, other than what we request from your teacher, school, district, parent or guardian.

(iii) The Children’s Online Privacy Protection Act (“COPPA”) prohibits online service providers from knowingly collecting personally identifiable information from children under 13 years of age without verifiable parental consent or notice as applicable (“Consent”). Consent may be obtained either by 1) MoxieReader if the teacher is setting up a student account; or 2) a student’s school if the school is setting up a student account.

 

b) Teachers and school leaders: if you are a teacher, school leader, aide, or other similar personnel (“School Personnel”) accessing the Service on behalf of a classroom, school, school district, or other similar educational institution (the "Institution"), the following terms apply to you:

(i) You agree that you are acting on behalf of (or have permission from) your Institution to enter into this Agreement and to use the Service as part of your instructional practice.

(ii) You further understand and acknowledge that COPPA prohibits online service providers from knowingly collecting personally identifiable information from children under 13 years of age without Consent and you understand that we will not let children under the age of 13 use the Service unless:

  1. You obtain Consent in the situations where you as School Personnel create the student’s account (“School Consent”). MoxieReader will not provide full access or use of the Service to children under the age of 13 that you invite or allow access to the Service if we are unable to verify School Consent or parental consent.

(iii) School Consent. You acknowledge and agree that when School Consent is utilized to allow children under 13 to use the Service, you and/or the Institution will be solely responsible (and hereby agree that MoxieReader is not responsible) for compliance with COPPA. This includes without limitation, limiting access to the Service to those student users from whom School Personnel has received valid Consent forms and complying with all parental requests regarding the collection, use and disclosure of such parent’s child’s information. School Personnel or the Institution are responsible for ensuring valid parental consent and retaining appropriate documentation of same. If a parent user does not consent or rescinds such School Consent, School Personnel or the Institution shall immediately notify MoxieReader to discontinue that student’s access to the Service and ensure that such student’s information is no longer accessible through the Services.

(iv) Only School Personnel who are current employees of the Institution may use the Service on the Institution’s behalf. Upon termination of a teacher or other staff member's employment with the Institution, such individual must return and cease using all login details and student access he or she has in his or her possession. If at any time you learn a user of the Service claims to be affiliated with your Institution who is not, in fact, affiliated with your Institution, you will notify Company immediately through email to hamsters@moxiereader.com

 

c) Parents: if you are a parent of a student whose teacher or school has created an account for that student, the following terms apply to you:

(i) If you wish to revoke School Consent for your child’s use of MoxieReader, please notify your child’s teacher and/or school. If necessary, you may email us to request that your child’s account be deleted at hamsters@moxiereader.com

Information collected from students (including personal information and information collected automatically) is never used or disclosed for third-party advertising, and personal information is never sold or rented to anyone, including marketers or advertisers. See our Privacy Policy for more details.

(ii) You further agree that we may send you messages, alerts, and other communications through the Service, including via email, web alert, text messages, push notifications and other similar means, in accordance with the preferences you and/or your child’s teacher set through the Service, and you agree to accept such messages, and pay any applicable network access, data usage, or similar fees.

 

FERPA

Certain information that may be provided to MoxieReader by School Personnel that is directly related to a student and maintained by an Institution, may be considered an education record (“Education Record”) under the Family Educational Rights and Privacy Act (“FERPA”). Additionally, certain information, provided to Company by School Personnel about a student, such as student first name or username and grade level, may be considered directory information under FERPA (“Directory Information”) and thus not an Education Record. A school may not generally disclose personally identifiable information from an eligible student’s education records to a third party without written consent of the parent and/or eligible student or without meeting one of the exemptions set forth in FERPA (“FERPA Exemption(s)”), including the exemption for Directory Information (“Directory Information Exemption”) or disclosure to school officials with a legitimate educational interest (“School Official Exemption”).

As School Personnel or an Institution providing Directory Information or any Education Record to MoxieReader, you represent, warrant and covenant to MoxieReader, as applicable, that your Institution has:

(i) complied with the Directory Information Exemption, including, without limitation, informing parents and eligible students what information the Institution deems to be directory information and allowing parents and eligible students a reasonable amount of time to request that schools not disclose directory information about them; and/or

(ii) complied with the School Official Exemption, including, without limitation, informing parents in their annual notification of FERPA rights that the Institution defines “school official” to include service providers and defines “legitimate educational interest” to include services such as the type provided by MoxieReader; or

(iii) obtained all necessary parental or eligible student written consent to share the Directory Information and Educational Records with Company, in each case, solely to enable Company’s operation of the Service.

 

MoxieReader will never share Education Records with third parties except (i) as directed by a MoxieReader user (i.e., teacher sharing with a school administrator or parent); or (ii) to our service providers that are necessary for us to provide the Service, as stated in our Privacy Policy. To request a list of our current essential service providers email hamsters@moxiereader.com

Education Records are never used or disclosed for third party advertising. Additionally, information collected directly from a student using MoxieReader is never used or disclosed for third party advertising, and personal information collected from a student is never sold or rented to anyone. This section shall not be construed to limit the ability of MoxieReader to use student information or Educational Records for adaptive learning or customized student learning purposes.

MoxieReader may use Education Records that have been de-identified for product development, research or other purposes (“De-Identified Data”). De-Identified Data will have all direct and indirect personal identifiers removed, this includes, but is not limited to, name, location information and school identity. MoxieReader agrees not to attempt to re-identify the De-Identified Data and not to transfer the De-Identified Data to a third party unless that party agrees not to attempt re-identification.

Should School Personnel or a parent wish to access or delete the information we've collected in relation their children they can do so from within the MoxieReader service. Alternatively they can contact us by email at hamsters@moxiereader.com
 

MoxieReader Technology

The Service and the MoxieReader Technology are intended solely for the personal, educational, non-commercial use of our users and may only be used in accordance with this Agreement. “MoxieReader Technology” means all past, present and future content of the Service, including, all the software, hardware and technology used to provide the Service (including MoxieReader proprietary code and third-party software), user interfaces, materials displayed or performed on the Service, such as text, graphics, images, illustrations and the design, structure, sequence and “look and feel” of the Services, and all other intellectual property, including all MoxieReader Marks. MoxieReader Technology is protected by copyright and other intellectual property laws. You are not allowed to use, store, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, create derivative works from, display, license, sell or otherwise exploit the MoxieReader Technology for any purposes other than as expressly permitted under this Agreement. You will not decompile, reverse engineer, or otherwise attempt to obtain the source code of any MoxieReader Technology. “MoxieReader Marks” means the trademarks, service marks, logos, or any other trade name, trademarks, service marks and other distinctive or proprietary brand features of MoxieReader.

Using our Service does not give you ownership of any intellectual property rights in our Service or the MoxieReader Technology. You may not use content from our Services unless you obtain permission from us or are otherwise permitted by law. These terms do not grant you the right to use any MoxieReader Marks. Don’t remove, obscure, or alter any copyright or other legal notices displayed in or along with our Services.

You may download copies of the MoxieReader App on school devices for classroom or school use, restricted to the terms of your license. If you are a parent at home, you may download copies for personal, non-commercial use only.

 

Social Media

Company may, now or in the future, incorporate certain functions that allow teachers and parents to interact with the Service through your accounts on certain supported third party services, such as social networks or network storage sites (“Linked Accounts”), such as with “Like” and “Share” buttons, or similar features. If you choose to use such features, you grant Company permission to access and use your Linked Account for the purpose of processing your requests. Your use of Linked Accounts is subject to the applicable third party terms. MoxieReader will not incorporate such social media functions for students.

 

Modification to Agreement

We may modify this Agreement or Guidelines to, for example, reflect changes to the law or changes to our Services. You should look at the Agreement regularly. We will post notice of modifications to this Agreement on this page. Changes will not apply retroactively and will only become effective when (a) you use the Service after you know about the change, or (b) thirty days after they are posted (whichever is sooner). However, changes addressing new functions for a Service or changes made for legal reasons will be effective immediately. Your continued use of the Services, following notice of the changes to the Agreement or Guidelines, constitutes your acceptance of our amended terms, policies or guidelines. If you do not agree to the modified Agreement, you should discontinue your use of the Service.

MoxieReader will not change how Education Records are used or shared under these Terms of Service without advance notice and consent from a teacher, School Official or Institution.

 

Your Warranty

You warrant, represent and agree that you will not use the Service in a manner that (i) infringes, violates or that is misappropriating another’s intellectual property rights, rights of publicity or privacy, or other rights; (ii) violates any international, federal, state or local law, statute, ordinance or regulation or which would render Company in violation of any applicable laws or regulations, including without limitation COPPA and FERPA; (iii) is harmful, fraudulent, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable; or (iv) jeopardizes the security of your account in any way, such as allowing an unauthorized person access to your account or password. Additionally, you represent, warrant and agree that you (i) possess all rights necessary to grant Company the rights above and (ii) you are responsible for compliance with the applicable provisions of COPPA as set forth above when obtaining School Consent.

 

Restrictions

We do our best to keep MoxieReader safe, but we cannot guarantee it. We need your help to keep MoxieReader safe, which includes the following commitments by you when using our Service:

  1. You will only use the Service as permitted by law.

  2. You will not collect the Service’s data or information, or otherwise access the Service, using automated means (such as harvesting bots, robots, spiders, or scrapers) without our prior permission.

  3. You will not upload viruses or other malicious code, files or programs.

  4. You will not obtain login information or access an account belonging to someone else.

  5. You will not collect, use or disclose data, including personal information, about other users without their consent or for unlawful purposes or in violation of applicable law or regulations.

  6. You will not use the Service in any manner that is threatening or harmful to any person or entity, or invasive of another’s privacy.

  7. You will not use the Service to do anything unlawful, deceptive, misleading, illegal, unethical, malicious, or discriminatory.

  8. You will not do anything that could disable, overburden, or impair the proper working or appearance of the Service or prevent other users from using the Service, such as a denial of service attack or interference with page rendering or other Service functionality.

  9. You will not impersonate a MoxieReader employee, or any other person, or falsely state or otherwise misrepresent your affiliation with any person or entity.

  10. You will not facilitate or encourage any violations of this Agreement or our policies.

 

Any violation of the above may be grounds for termination of your right to access or use the Service.

 

WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY

We provide our Service using a commercially reasonable level of skill and care and we hope that you will enjoy using them to foster a love of reading among students. However, there are certain things that we do not promise about our Services.

 

DISCLAIMER OF WARRANTIES. THE SERVICE (AND ANY ASSOCIATED CONTENT OR SOFTWARE) ARE PROVIDED ON AN “AS IS” BASIS. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE MOXIEREADER TECHNOLOGY, SERVICES, AND CONTENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF QUALITY, ACCURACY, PERFORMANCE, AVAILABILITY, MERCHANTABILITY, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MOXIEREADER MAKES NO REPRESENTATION OR WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, BE ERROR FREE OR UNINTERRUPTED, THAT ALL ERRORS WILL BE CORRECTED OR THAT THE SERVICES ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.

 

LIMITATION OF LIABILITY. UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, SHALL MOXIEREADER OR ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, LICENSORS, PARTNERS OR AGENTS, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST OF COVER, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF MOXIEREADER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO (i) THIS AGREEMENT; (ii) YOUR USE OR THE INABILITY TO USE THE SERVICES, CONTENT, OR USER DATA; OR (iii) ANY INTERACTION WITH ANY THIRD PARTY THROUGH OR IN CONNECTION WITH THE SERVICE, INCLUDING OTHER USERS.

 

IN NO EVENT WILL MOXIEREADER OR ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, LICENSORS, PARTNERS OR AGENTS, BE LIABLE TO YOU IN THE AGGREGATE (FOR ALL POTENTIAL CLAIMS BY YOU) FOR ANY DAMAGES INCURRED IN EXCESS OF THE GREATER OF ANY FEES YOU HAVE ACTUALLY PAID TO COMPANY FOR USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENTS GIVING RISE TO THE CLAIM, OR ONE HUNDRED DOLLARS ($100).

 

THIS SERVICE MAY IN FUTURE CONTAIN TRANSLATIONS POWERED BY GOOGLE. GOOGLE DISCLAIMS ALL WARRANTIES RELATED TO THE TRANSLATIONS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, RELIABILITY, AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS

 

Registration and Security

As a condition to using Service, you will be required to register with Company and select a password and username or provide additional contact information ("Company User ID"). You must provide Company with accurate, complete, and updated Company User ID information. You may not select or use as a Company User ID a name of another person with the intent to impersonate that person. You will not provide any false information or create an account for anyone other than yourself without permission. Company reserves the right to refuse registration of or cancel a Company User ID in its discretion. You shall be responsible for maintaining the confidentiality of your password and will not share with anyone or let anyone else access your account. You may not transfer your account to anyone without express prior written consent of Company.

You represent, warrant and covenant all registration information you submit is truthful and accurate.

 

Indemnity

You will indemnify, defend, and hold Company, its parents, partners, subsidiaries, affiliates, officers, and employees harmless from and against all damages, losses, demands, liabilities, settlements, costs and expenses of any kind (including reasonable attorneys' fees) from any claim or demand made by any third party relating to or arising out of (i) your access to, use, or misuse of the Service, (ii) your violation of this Agreement (including any failure to obtain or provide any necessary consent and/or violation of applicable laws or regulations), or (iii) the infringement by you or any third party using your account of any intellectual property or other right of any person or entity.

 

Copyright Protection

It is MoxieReader’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (“DMCA“). MoxieReader may remove any allegedly infringing content without any liability to you. MoxieReader reserves the right to identify and terminate Users under any circumstances it deems appropriate, including after only a single instance of allegedly infringing behavior by that User.

 

Third Parties and User Interactions

The Service may contain links to third party websites that are not owned or controlled by Company, and includes features that allow you to interact and communicate with third parties. When you access third party websites or interact or communicate with third parties through the Service, you do so at your own risk. Company has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites, or which are posted to or through the Service by other users.

 

User Disputes. MoxieReader is not responsible for the actions, content, information or data of other third parties, including other users. You are solely responsible for your interactions with other users of the Services, and any other parties with whom you interact through the Service. We reserve the right, but have no obligation, to become involved in any way with these disputes.

 

Release. If you have a dispute with one or more users, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes, including damages for loss of profits, goodwill, use , privacy or data.

 

Termination

This Agreement shall remain in full force and effect while you use the Service. You may terminate your use of the Service or your account at any time by contacting us at hamsers@MoxieReader.com Parents, you can also terminate your child’s account the same way, although we will need to verify your identity. Company may suspend or terminate your access to the Service or your account at any time, for any reason (without cause or for your violation of any term of this Agreement), and without warning or notice, which may result in the loss of information associated with your account. Upon termination of your account, your right to use the Service will immediately cease. All provisions of this Agreement which, by their nature, should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.

 

Dispute Resolution

a) Generally: In the interest of resolving disputes between you and Company in the most expedient and cost effective manner, you and Company agree that any and all disputes arising in connection with these Terms of Service shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms of Service, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms of Service. You understand and agree that, by entering into these Terms of Service, you and Company are each waiving the right to a trial by jury or to participate in a class action.

b) Exceptions: Notwithstanding subsection (a), we both agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.

c) Arbitration: Any arbitration between you and Company will be 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 of Service, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, or by calling the AAA at 1-800-778-7879.

d) Notice; Process: A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail ("Notice"). Company's address for Notice is: 186 Berkeley Place, Brooklyn, NY 11217. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but If we 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 shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any; provided that if our dispute is finally resolved through arbitration in your favor, Company shall pay you the greater of (i) the amount awarded by the arbitrator, if any, and (ii) the greatest amount offered by Company in settlement of the dispute prior to the arbitrator’s award.

e) Fees: In the event that you commence arbitration in accordance with these Terms of Service, Company will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in New York, NY, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules. 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 such 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 shall 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.

f) 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 class member in any purported class or representative proceeding. 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.

g) Enforceability: if only Subsection F of this Section or the entirety of this Section is found to be unenforceable, then the entirety of this Section shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described elsewhere in this Section shall govern any action arising out of or related to these Terms of Service.

 

Miscellaneous

The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder. Company shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Company's reasonable control. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with Company's prior written consent. Company may transfer, assign or delegate this Agreement and its rights and obligations without restriction. This Agreement is governed by and construed in accordance with the laws of the State of New York without regard to the conflict of laws provisions thereof. To the extent any dispute arising from or relating to the subject matter of this Agreement is permitted to be brought in a court of law, such claim shall be subject to the exclusive jurisdiction of the state and federal courts located in New York, NY, and for all purposes of this Agreement, you and Company consent to the exclusive jurisdiction and venue of such courts. Unless and solely to the extent that you or your Institution have a separate written agreement with Company that governs your use of the Service (in which case such agreement will control), we both agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that the Agreement may not be modified, except as otherwise provided herein. This Agreement and any subsequent versions of this Agreement posted to the Website will be deemed a writing signed by both parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Company in any respect whatsoever.

 

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