PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
Emics provides a place for educators and school administrators to manage electronic or digital documents, forms, data, information, and content (“E-Files”) and collect electronic signatures from teachers, staff, parents, and third parties.
You may use the Service only if you can form a binding contract with Emics, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 13 is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service by Emics.
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service as permitted by the features of the Service. Emics reserves all rights not expressly granted herein in the Service and the Emics Content (as defined below). Emics may terminate this license at any time for any reason or no reason.
Your Chalk Schools account gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of accounts for different types of Users. If you open a Chalk Schools account on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf. By connecting to Emics with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
If a third party such as an employer provides you with an account, that party has administrative rights to your account and may: manage your account, reset your password, or suspend or cancel your account; view your account's usage and profile data, including how and when your account is used; and read, store, or delete the E-Files associated with your account.
If you use the Service in the course of providing services or performing your duties for or on behalf of an educational institution or other organization, whether or not such educational institution or organization provided you with your Chalk Schools account, we may share any E-Files (as defined below) or other data and information associated with your account with the institution or organization for which you provide services, and you expressly consent to such sharing of E-Files and information. By using the Service in any manner, you represent and warrant that you have all necessary consents to so use the Service, including without limitation, permission from the institution or organization for which you are providing services and all necessary consents to process any personal information through your account.
If you are an individual User of the Service and the domain of the primary email address associated with your account is owned by an organization or institution, such as a school, and was assigned to you as an employee, contractor or member of such organization or institution, and that organization or institution wishes to establish a relationship with us and add your account to such relationship, then, if you do not change the email address associated with your account, your account may become subject to the relationship between Emics and such organization and controlled by such organization. By continuing to use your account after such relationship has been established, you agree to any terms and conditions associated with that relationship. You acknowledge and agree that such organization will have access to any E-Files (as defined below) and other records that are associated with your account.
You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify Emics immediately of any breach of security or unauthorized use of your account. Emics will not be liable for any losses caused by any unauthorized use of your account.
By providing Emics your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out by unsubscribing from our mailing list using the features of the Service. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Emics servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination, you continue to be bound by this Agreement.
You are solely responsible for your interactions with other Chalk Schools Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Emics shall have no liability for your interactions with other Users, or for any User’s action or inaction.
The Service allows you to create, store, and transmit E-Files. Emics claims no ownership rights over E-Files created, stored, or transmitted by you. The E-Files you upload to or transmit through the Service remain yours; however, by uploading, transmitting, and distributing E- Files through the Service, you agree to allow others to view, edit, and/or distribute your E-Files in accordance with your settings and this Agreement.
You are solely responsible for all E-Files you upload, transmit, or otherwise make available on or through the Service and for any E-Files that other Users make available or transmit through your account, and you represent and warrant that you have all necessary rights to use such E-Files through the Service. While E-Files are stored in an encrypted database, you acknowledge and agree that Emics will not be responsible for any failure of the Service to secure E-Files, or for the corruption of or loss or any data, information or content comprising or contained in any E-Files. Emics does not control, verify, or endorse any E-Files that you make available over the Service, and you acknowledge and agree that you shall be solely liable for any use of or access to your E-Files and any data, content, or information contained therein.
You agree to only upload, transmit, distribute, or make available E-Files: (i) that you have the lawful right to use, copy, distribute, transmit, or display; and (ii) that do not infringe the law. You further agree not to upload, transmit, distribute, or make available E-Files that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort or violate any law, rule, or regulation; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
We provide functionality that allows you to control who may access and distribute the E-Files associated with your account. If you have been granted administrative rights to your account, you may control access to any E-Files associated with that account as permitted by the functionality of the Service. If you or other Users authorized to use your account choose to transmit any E-Files to any third parties, those third parties will be able to view, access, and copy your E-Files. You acknowledge that you are solely responsible for any sharing of E-Files with any third parties by you or through your account, and you expressly relieve Emics of any liability arising from any transmission of E-Files through your account. Subject to your account settings, you grant us a non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, reproduce, display, transmit, and distribute your E-Files on and through the Service for the purposes of operating and providing the Service to you and our Users. Subject to your account settings, you also hereby grant to Emics and to each User of the Service, a non-exclusive license to access, use, reproduce, transmit, distribute and display your E-Files as permitted by the functionality of the Service.
Emics takes no responsibility and assumes no liability for any E-Files that you or any other User or third party uses in connection with, or sends over, the Service. You are solely responsible for your E-Files and the consequences of sharing or transmitting such content and information, and you agree that we are only acting as a passive conduit for your distribution and transmission of your E-Files. You understand and agree that Emics shall not be liable for any damages you allege to incur as a result of any E-Files.
The Service provides functionality that allows Users to electronically sign E-Files as an intended substitute for a physical signature (“E-Signature”).
By using the E-Signature function, you agree to transaction business electronically using E-Files and E-Signatures in place of using paper documents and wet-ink signatures. You are not required to view or sign documents electronically. You may request paper documents or withdraw your consent at any time as provided below. Please note that any withdrawal of consent will not void any electronic transactions you have previously entered into.
You may obtain a paper copy of the E-File at any time by printing the E-File. You may also request a paper document or discuss other signing options by emailing or otherwise contacting the sending party. You are solely responsible for ensuring that your contact information is current and for any delay resulting from a failure to update your contact information. Please note that there may be fees associated with using paper documents and you agree to pay all such fees. In general, the Service the will automatically send both parties a fully executed copy of the E-File processed through the Service. However, we cannot guarantee that the signed E-File will reach both parties. You are solely responsible for confirming that the receiving party signed the E-File.
You understand that by using an E-Signature to sign an E-File, you are expressing your acceptance of the terms and conditions contained within the E-File. You should read any E-File carefully before apply your E-Signature. You agree that you are solely responsible for any E-File to which you apply your E-Signature and for any consequences and legal obligations arising therefrom.
You may withdraw your consent transact electronically at any time by ceasing any and all use of the E-Signature service and notifying the other party.
While Chalk Schools may provide options for supporting identity verification, Emics does not have the capability to verify the identity or the authority of a signatory to such E-File; you are solely responsible for verifying the identity of each other signatory to an E-File. Emics does not certify the validity, completeness, or enforceability of any executed E-File.
The Service also provides Users with the ability to contribute form templates to the Service for use by other Users (“Templates”). You agree to only upload, transmit, distribute, or make available Templates: (i) that you have the lawful right to use, copy, distribute, transmit, or display; and (ii) that do not infringe the Intellectual Property Rights or violate the privacy rights of any third party. By choosing to contribute any templates, you grant Emics a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such Templates, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and Emics’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User of the Service a non-exclusive license to access your Templates through the Service, and to use, reproduce, distribute, display and perform such Templates as permitted through the functionality of the Service and under this Agreement. You agree that you are solely liable for any Templates you provide to the Service.
If you are an organization or institutional User of the Service, you expressly grant, and represent and warrant that you have all rights necessary to grant, to Emics, a royalty-free, sublicensable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, publish, edit, and distribute the name, logo, or any other identifying words or marks used by and/or associated with you to identify you (“School Marks”), in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service to identify you as a customer of Emics. For the avoidance of doubt, Emics may use the School Marks in connection with case studies relating to the Service, promoting and marketing the Service, and creating and distributing reports containing aggregate usage data and efficiency metrics. Unless otherwise approved in writing by you, Emics will not obscure or alter any such School Marks. Emics acknowledges that all goodwill generated through our use of any School Marks will inure to your benefit and we hereby assign and will assign to you any and all goodwill generated through our use of any School Marks, without any payment or other consideration of any kind to us.
You agree to use the Service solely in compliance with all laws, rules, regulations, and judicial decrees, including without limitation any privacy laws and other laws relating to the processing, collection, use, or disclosure of personal information or records. For the avoidance of doubt, this includes, but is not limited to, the Children’s Online Privacy Protection Act, as amended (“COPPA”), the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”), and the Family Educational Rights and Privacy Act, as amended (“FERPA”). You represent and warrant that you have all necessary rights and permissions to provide any and all information and content, including without limitation any personal information and other information or content contained in or comprising any E-Files or Templates, to Emics. You acknowledge and agree that you shall be solely responsible for obtaining all necessary consents to process, store, and transmit any such information or content through the Service, including without limitation any consents required by COPPA, HIPAA, and FERPA, and that you shall be solely responsible for complying with COPPA, HIPAA, and FERPA in connection with your use of the Service and Emics’s provision of the Service to you.
We may make available software to access the Service via a mobile device (“Mobile Software”). To use the Mobile Software you must have a mobile device that is compatible with the Mobile Service. Emics does not warrant that the Mobile Software will be compatible with your mobile device. Emics hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software for one Emics account on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Software, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or (v) delete the copyright and other proprietary rights notices on the Mobile Software. You acknowledge that Emics may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and Emics or its third party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Emics reserves all rights not expressly granted under this Agreement. If the Mobile Software is being acquired on behalf of the United States Government, then the following provision applies. Use, duplication, or disclosure of the Mobile Software by the U.S. Government is subject to restrictions set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable. The Mobile Software originates in the United States, and is subject to United States export laws and regulations. The Mobile Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Software and the Emics Service.
The following applies to any Mobile Software you acquire from the iTunes Store (“iTunes-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and Emics, not Apple, and that Apple has no responsibility for the iTunes-Sourced Software or content thereof. Your use of the iTunes-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iTunes-Sourced Software. In the event of any failure of the iTunes-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iTunes-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iTunes-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Emics as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the iTunes-Sourced Software or your possession and/or use of the iTunes-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the iTunes-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to Emics as provider of the software. You acknowledge that, in the event of any third party claim that the iTunes-Sourced Software or your possession and use of that iTunes-Sourced Software infringes that third party’s intellectual property rights, Emics, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and Emics acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement as relates to your license of the iTunes-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the iTunes-Sourced Software against you as a third party beneficiary thereof.
Except for your E-Files and Templates, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and E-Files belonging to other Users (the “Emics Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Emics and its licensors. Except as expressly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Emics Content. Use of the Emics Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Emics under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Emics does not waive any rights to use similar or related ideas previously known to Emics, or developed by its employees, or obtained from sources other than you.
Certain aspects of the Service may be provided for a fee or other charge. If you elect to use paid aspects of the Service, please contact us for further details on pricing. Emics may add new services for additional fees and charges, or amend fees and charges for existing services, at any time in its sole discretion. Any change to our pricing or payment terms shall become effective in the billing cycle following notice of such change to you as provided in this Agreement.
If the Service provides professional information (for example, medical, legal, or financial), including without limitation any information contained within any E-File or Template, such information is for informational purposes only and should not be construed as professional advice. No action should be taken based upon any information contained in the Service. You should seek independent professional advice from a person who is licensed and/or qualified in the applicable area before relying on any information or Template or signing any E-File or Template found on the Service.
Emics uses commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of your personal information and implement your privacy settings. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. If you upload or transmit confidential, personal information, trade secrets, or other sensitive or restricted content on the Service, you are solely responsible for implementing safeguards beyond the security measures provided by Emics. You acknowledge that you provide your personal and confidential information at your own risk.
You agree to defend, indemnify and hold harmless Emics and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you or through your account; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) any violation of any applicable law, rule or regulation, including without limitation COPPA, HIPAA, and FERPA by you or by any User associated with your account; (v) any claim or damages that arise as a result of any of your E-Files or Templates or any that is submitted via your account; (vi) your failure to obtain any necessary consents to provide any personal information to Emics; or (vi) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EMICS OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, EMICS, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
EMICS DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE EMICS SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND EMICS WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW EXCLUSIONS AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EMICS, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL EMICS BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EMICS 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 OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL EMICS, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO EMICS HEREUNDER OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF EMICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
The Service is controlled and operated from facilities in the United States. Emics makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over Emics, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Santa Clara County, California or as described in the Arbitration provision below. Each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of that party’s copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Santa Clara County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM EMICS. In the unlikely event that Emics has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any Emics claims for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, Inc. (“JAMS”) under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein.
The arbitration will be conducted in Santa Clara County, California, unless you and Emics agree otherwise. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Emics from seeking injunctive or other equitable relief from the courts as necessary to protect any of Emics’s proprietary interests.
JAMS may be contacted at www.jamsadr.com and may require you to pay a fee for the initiation of your case unless you apply for and successfully obtain a fee waiver from JAMS. The arbitration will be conducted in Santa Clara County, California (or the nearest JAMS office), unless you request an in-person hearing in your hometown or you and Emics agree otherwise. The award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees and your reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the court as necessary to prevent the actual or threatened infringement, misappropriation, or violation of that party’s data security, Intellectual Property Rights or other proprietary rights. You may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process.
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS TERMS OF SERVICE, YOU AND EMICS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Emics without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
This Agreement, together with any amendments and any additional agreements you may enter into with Emics in connection with the Service, shall constitute the entire agreement between you and Emics concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Emics’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
Please contact us firstname.lastname@example.org with any questions regarding this Agreement.