Terms of Service
Acceptance Of Terms
Terms of Service Agreement
THIS TERMS OF SERVICE AGREEMENT (“AGREEMENT”) GOVERNS CUSTOMER’S USE OF AND PARTICIPATION IN ANY ONLINE CLASS OR USE OF THE SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) ACKNOWLEDGING ACCEPTANCE OF THIS AGREEMENT IN A SEPARATE DOCUMENT REFERENCING OR INCORPORATING THE TERMS OF THIS AGREEMENT AND/OR (3) PARTICIPATING IN AN ONLINE CLASS, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE ONLINE CLASS. This Agreement was last updated on April 13, 2020. It is effective between Customer and CircleUp Education (“CircleUp Education”) as of the date of Customer’s accepting this Agreement.
PLEASE READ: THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 16). READ CAREFULLY, INCLUDING CUSTOMER’S RIGHT, IF APPLICABLE, TO OPT OUT OF ARBITRATION. EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 16 BELOW, OR WHERE PROHIBITED BY LAW, BY ENTERING INTO THESE TERMS CUSTOMER EXPRESSLY AGREES THAT DISPUTES BETWEEN CUSTOMER AND CircleUp EDUCATION WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND CUSTOMER HEREBY WAIVES CUSTOMER’S RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
“Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Service.
“Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement.
“Online Class” means the delivery by CircleUp Education of an online course pursuant to which Customer learns course materials remotely.
“Service(s)” means the provision of the Online Class and/or the Training Materials together with such other services as agreed from time to time and purchased by Customer through the Website or by telephone.
“Training Materials” means the information provided by CircleUp Education to accompany a course provided as part of the Services in hard copy or electronic form.
2. CircleUp Education Services
A description of the Services together with the dates on which the Services will begin are available on our Website located here http://www.circleuped.org (“Website”). CircleUp Education will provide the Services with reasonable care and skill in accordance with the description set out on the Website. CircleUp Education reserves the right to vary or withdraw any of the Services described on the Website without notice. CircleUp Education expects Customer to confirm that the Services Customer is purchasing will meet Customer’s needs. CircleUp Education doesn’t make any guarantee to Customer that Customer will obtain a particular result, professional qualification, or employment opportunity from Customer’s purchase and completion of any of the Services. Customer acknowledges and agrees that the success of the Services and the provision of Services and deliverables are fully dependent upon Customer’s timely participation and cooperation. CircleUp Education shall not be responsible for the way in which the Customer uses the Training Materials or any other output from the Service. Training and course purchases are valid only for the specific date and time specified in Customer’s booking. The Services will be performed as described in the individual class agendas. CircleUp Education shall provide such trainers to present the Services as it, in its sole discretion, deems fit and CircleUp Education shall be entitled at any time to substitute any trainer with any other person who, in CircleUp Education sole discretion, it deems suitably qualified to present the relevant course. Features and prices are subject to change. There will be no replacement classes or extra materials for Customer who missed an Online Class.
3. Customer’s Responsibilities
Customer may not allow anyone else to access the Online Class or Training Materials. Customer is responsible for providing the complete and correct definition and documentation of the business processes within scope for this engagement and implementing all business process changes required to support the engagement. Customer will provide the required resources and ensure active participation. This will include, without limitation, an executive decision-maker, product / process owner(s), project leadership and management, subject matter experts and technical resources. Customer will facilitate scheduling and organization of workshops. Customer will actively participate in all workshops with process leaders, key stakeholders, engagement leadership, technical experts to define and agree on a standard process design for the Services. Customer shall at all times, on reasonable request by CircleUp Education, provide Customer information to the extent required by CircleUp Education to perform the Services; and shall respond to other reasonable requests and decisions required of the Customer for the effective performance of the Services.
4. Warnings, Waiver and Disclosure
THE SERVICE OFFERS HEALTH AND FITNESS INFORMATION AND IS DESIGNED FOR EDUCATIONAL AND ENTERTAINMENT PURPOSES ONLY. CUSTOMER SHOULD CONSULT A PHYSICIAN OR GENERAL PRACTITIONER BEFORE BEGINNING A NEW FITNESS PROGRAM. CUSTOMER SHOULD NOT RELY ON THIS INFORMATION AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF CUSTOMER HAS ANY CONCERNS OR QUESTIONS ABOUT ITS HEALTH, CUSTOMER SHOULD ALWAYS CONSULT WITH A PHYSICIAN, GENERAL PRACTITIONER OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM CUSTOMER’S HEALTHCARE PROFESSIONAL BECAUSE OF SOMETHING CUSTOMER MAY HAVE READ ON THE WEBSITE OR HEARD IN AN ONLINE CLASS. THE USE OF INFORMATION PROVIDED THROUGH THE SERVICE IS SOLELY AT CUSTOMER’S OWN RISK AND IS NOT MEDICAL OR HEALTHCARE ADVICE. NOTHING STATED OR POSTED ON THE WEBSITE OR AVAILABLE THROUGH ANY SERVICE IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR COUNSELING CARE. FOR PURPOSES OF THESE TERMS, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH CARE TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE.
TO THE FULL EXTENT PERMITTED BY LAW, CircleUp EDUCATION MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE, THAT CUSTOMER WILL SUCCESSFULLY COMPLETE THE ONLINE CLASS, OR THAT ANY PARTICULAR LEVEL OF KNOWLEDGE WILL BE ATTAINED BY CUSTOMER. IN THAT REGARD, DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT THE HEALTH, FITNESS AND NUTRITIONAL ADVICE THAT APPEARS HERE. NO ASSURANCE CAN BE GIVEN THAT THE ADVICE CONTAINED IN THE SERVICES WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.
In becoming a user of the Services that include and not limited to yoga, meditation or exercise with the intent of using such Services, Customer affirms that either (a) all of the following statements are true: (i) no physician or general practitioner has ever informed Customer that Customer has a heart condition or that Customer should only do physical activities recommended by a physician or general practitioner; (ii) Customer has never felt chest pain when engaging in physical activity; (iii) Customer has not experienced chest pain when not engaged in physical activity at any time within the past month; (iv) Customer has never lost its balance because of dizziness and Customer has never lost consciousness; (v) Customer does not have a bone or joint problem that could be made worse by a change in Customer’s physical activity; (vi) Customer’s physician or general practitioner is not currently prescribing drugs for Customer’s blood pressure or heart condition; (vii) Customer doesn’t have a history of high blood pressure, and no one in Customer’s immediate family has a history of high blood pressure or heart problems; and (viii) Customer doesn’t know of any other reason Customer should not exercise; or (b) Customer’s physician or general practitioner has been specifically consulted by Customer and approved of Customer’s use of the Services. If applicable, Customer further affirms that (a) Customer is not pregnant, breastfeeding or lactating; unless (b) Customer’s physician or general practitioner has been specifically consulted and approved Customer’s use of the Services.
CircleUp Education reserves the right to refuse or cancel a Service if CircleUp Education determines that Customer have certain medical conditions or that the representations set forth above are untrue in any respect.
Service fees must be paid at the point of booking via Square, Inc. secure online payment process. Payment must be received prior to start of the Service. A receipt will be sent to Customer by email from Square, Inc confirming payment. Square, Inc. will receive the information needed to verify and authorize Customer’s payment card and to process Customer’s order and is under legal and contractual obligations not to disclose this information to third parties. Please note that if Customer doesn’t provide accurate details (including type of card and number) or if Customer’s credit card company does not authorize payment, Customer’s registration will be deemed void. CircleUp Education will not accept any liability for costs incurred as a result of orders deemed void in this manner.
All payments are due in U.S. Dollars at the time of purchase. All taxes, duties, levies, imposts, fines or similar governmental assessments including sales and use taxes, value-added taxes (“VAT”), goods and services taxes (“GST”), excise, business, service, and similar transactional taxes imposed by any jurisdiction and the interest and penalties thereon (collectively, “Taxes”), if any, are charged at the applicable rate depending on the Service and/or Customer. If Customer is a tax-exempt entity or claims exemption from any Taxes under this Agreement, Customer shall provide a certificate upon execution of this Agreement and, after receipt of valid evidence of exemption, CircleUp Education shall not charge Customer any Taxes from which it is exempt. If CircleUp Education is required to invoice or collect Taxes associated with Customer’s purchase of, payment for, access to or use of the Services, CircleUp Education will issue an invoice to Customer including the amount of those Taxes, itemized where required by law.
Notice of Customer’s intent to cancel a Service must be made by emailing email@example.com and is subject to the following terms:
Customer’s whose cancellation request is received in excess of 7 days prior to the start date of the Service will incur no liabilities.
Customer’s whose cancellation request is received within 5 to 7 days prior to the start date of the Service will incur an administration fee equal to 50% of the Service fees.
Customer whose cancellation request is received within 4 days prior to the start date or after the commencement of the Service will incur an administration fee equal to 100% of the Service fee.
7. Term and Termination
This Agreement begins on the date Customer first uses the Service and continues as long as Customer has an account with CircleUp Education and/or continues to use the Service. CircleUp Education may terminate this Agreement in its entirety upon ten (10) days’ prior written notice to Customer (email is acceptable). CircleUp Education reserves the right to cancel courses, change online platform, change instructors, or change course content. In the event that a Service must be canceled Customer will be informed at least 30 minutes prior to the start of the Service. Customer will be notified via email. CircleUp Education will make every effort to avoid cancellations. In case of a cancellation Customer will receive a refund for the full Service fee
8. Effect of Termination
Upon termination of this Agreement for any reason: all obligations of the parties shall terminate and all licenses granted by CircleUp Education will terminate, except that the following Sections will survive termination: Safety Warnings, Waiver and Disclosure (Section 4), Payments (Section 5), Cancellations (Section 6), Effect of Termination (Section 8), Intellectual Property (Section 9), Confidentiality (Section 10), No Warranty (Section 11), No Damages (Section 12), Indemnification (Section 13), Privacy (Section 14), Dispute Resolution (Section 16), Governing Law (Section 22), and all general provisions. Termination of this Agreement by a party will not act as a waiver of any breach of this Agreement and will not act as a release of liability under this Agreement.
9. Intellectual Property
(A) CirceUp Education IPR
As between CircleUp Education and Customer, all rights, title, and interest in and to all intellectual property rights in CircleUp Education IPR is owned exclusively by CircleUp Education notwithstanding any other provision in this Agreement. Except as expressly provided in this Agreement, CircleUp Education reserves all rights in CircleUp Education IPR and does not grant Customer any rights, express or implied or by estoppel.
“CircleUp Education IPR” means: (a) the Content, (b) the Training Materials, (c) documentation, templates, manuals, materials, ideas, processes, methodologies, formulas, techniques, works of authorship, trade secrets, copyrights, tradenames, masks works, patents, design rights, trade dress, know-how (whether patentable or not), owned, created, or discovered prior to or separately from the work performed under this Agreement by CircleUp Education or otherwise arising (in any form or format) out of the performance of the services provided under this Agreement; (d) updates, improvements, configurations, extensions, and derivative works of the foregoing and related technical or end user documentation or manuals; and (e) intellectual property anywhere in the world relating to the foregoing.
CircleUp Education is in the business of providing consulting services drawing upon the knowledge, understanding and expertise CircleUp Education has gained in the course of working with many other customers. Nothing in this Agreement shall assign rights in or limit CircleUp Education’s use of any know-how or knowledge pertaining to CircleUp Education’s intellectual property rights or technology.
CircleUp Education encourages Customer to provide suggestions, proposals, ideas, recommendations or other feedback regarding improvements to CircleUp Education’s services and related resources. To the extent Customer provides such feedback, Customer grants to CircleUp Education a royalty-free, fully paid, sub-licensable, transferable, non-exclusive, irrevocable, perpetual, worldwide right and license to make, use, sell, offer for sale, import and otherwise exploit feedback (including by incorporation of such feedback into the CircleUp Education IPR) without restriction.
(C) License to Use the Service
Subject to Customer’s compliance with this Agreement and solely for so long as Customer is permitted by CircleUp Education to access and use the Service, CircleUp Education grants Customer a limited, non-transferable, non-exclusive, revocable right and license to access and use the Service, Content and Training Materials for Customer’s own personal, non-commercial purposes, a right which may not be assigned or sublicensed to anyone. This license includes the right to view Content available on the Service and the right to download one copy of the application to any single device for Customer’s personal, non-commercial home use only, provided Customer keeps intact all copyright and other proprietary notices. This license will remain in effect unless and until Customer violates this Agreement or this license is terminated by Customer or CircleUp Education.
Except as expressly permitted in writing by an authorized representative of CircleUp Education, Customer will not reproduce, redistribute, sell, transfer, create derivative works from, decompile, reverse engineer, or disassemble the Service, nor will Customer take any measures to interfere with or damage the Service. Unless otherwise specified, copying or modifying any Content, Training Materials or using Content for any purpose other than Customer’s personal, non-commercial use of the Service, including use of any such Content on any other website or networked computer environment, is strictly prohibited. All rights not expressly granted by CircleUp Education in this Agreement are reserved.
Customer shall not (and shall not permit others to) do the following with respect to the CircleUp Education IPR: (i) license, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share or otherwise make any of it available for access by third parties except as otherwise expressly provided in this Agreement; (ii) access it for the purpose of developing or operating products or services intended to be offered to third parties in competition with CircleUp Education; (iii) disassemble, reverse engineer or decompile it; (iv) copy, create derivative works based on or otherwise modify it except as permitted in this Agreement; (v) remove or modify a copyright or other proprietary rights notice in it; (vi) use it to reproduce, distribute, display, transmit or use material protected by copyright or other intellectual property right (including the rights of publicity or privacy) without first obtaining the permission of the owner.
“Confidential Information” means all information disclosed by a party to the other party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. The recipient of Confidential Information shall: (i) at all times protect it from unauthorized disclosure with the same degree of care that it uses to protect its own confidential information, and in no event using less than reasonable care; and (ii) not use it except to the extent necessary to exercise rights or fulfill obligations under this Agreement. Each party shall limit the disclosure of the other party’s Confidential Information to those of its employees and contractors with a need to access such Confidential Information for a party’s exercise of its rights and obligations under this Agreement, provided that all such employees and contractors are subject to binding disclosure and use restrictions at least as protective as those set forth herein. Each party’s obligations set forth in this Section shall remain in effect during the term and three (3) years after termination of this Agreement. The receiving party shall, at the disclosing party’s request or upon termination of this Agreement, return all originals, copies, reproductions and summaries of Confidential Information and other tangible materials and devices provided to the receiving party as Confidential Information, or at the disclosing party's option, certify destruction of the same. A party may disclose the disclosing party’s Confidential Information to a court or governmental body pursuant to a valid court order, law, subpoena or regulation, provided that the receiving party: (a) promptly notifies the disclosing party of such requirement as far in advance as possible to the extent advanced notice is lawful; and (b) provides reasonable assistance to the disclosing party in any lawful efforts by the disclosing party to resist or limit the disclosure of such Confidential Information. The parties agree that the receiving party’s disclosure of Confidential Information except as provided herein may result in irreparable injury for which a remedy in money damages may be inadequate. The parties further agree that in the event of such disclosure or threatened disclosure, the disclosing party may be entitled to seek an injunction to prevent the breach or threatened breach without the necessity of proving irreparable injury or the inadequacy of money damages, in addition to remedies otherwise available to the disclosing party at law or in equity.
11. No Warranty
The Online Class and Training Materials are provided “AS IS”. CircleUp Education provides the Services on an “AS IS” and “AS AVAILABLE” basis. Any participation in or use of the Services is at Customer’s sole risk. To the extent permitted by law, CircleUp Education expressly disclaims any and all warranties of any kind, whether express or implied, including, but not limited to implied warranties of merchantability, fitness for a particular purpose, non-infringement, quiet enjoyment and any other warranty that might arise under any law.
Without limiting the foregoing, CircleUp Education makes no warranties or representations that the provision of any content online, or the Services will always be available or be uninterrupted, timely or error-free, that defects will be corrected or that such content is secure or free from bugs, viruses, errors and omissions, that the Services will meet Customer’s personal or professional needs.
To the extent that another party may have access to or view content on Customer’s device, Customer are solely responsible for informing such party of all disclaimers and warnings in this Agreement. TO THE EXTENT ANY DISCLAIMER OR LIMITATION OF LIABILITY DOES NOT APPLY, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL APPLICABLE EXPRESS, IMPLIED, AND STATUTORY WARRANTIES WILL BE LIMITED IN DURATION TO A PERIOD OF 30 DAYS AFTER THE DATE ON WHICH CUSTOMER FIRST USED THE SERVICES, AND NO WARRANTIES SHALL APPLY AFTER SUCH PERIOD.
Customer acknowledges that CircleUp Education may discontinue the Services at any time in its sole discretion. CircleUp Education reserves the right to modify the Service, including, but not limited to updating, adding to, enhancing, modifying, removing or altering any content or features of the Service, at any time, in its sole discretion. Customer is responsible for providing its own access (e.g., computer, mobile device, Internet connection, etc.) to the Service. CircleUp Education has no obligation to screen or monitor any content and does not guarantee that any content available on the Service is suitable for all users or that it will continue to be available for any length of time.
12. No Damages
IN NO EVENT SHALL CircleUp EDUCATION HAVE ANY LIABILITY HEREUNDER TO CUSTOMER FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES BASED ON LOST PROFITS, DATA OR USE, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES UNLESS SUCH DISCLAIMER OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE CircleUp EDUCATION’S LIABILITY WITH RESPECT TO THIS AGREEMENT SHALL NOT EXCEED $1,000.00.
Customer agrees to indemnify, defend, and hold harmless CircleUp Education and its directors, officers, employees, and agents, from and against all claims, damages, losses and costs expenses (including attorney fees and other expert fees) that arise from or relate to (i) Customer’s use of the Service and (ii) Customer’s violation and/or breach of the terms and conditions of this Agreement
Customer (i) consents to the recording and/or monitoring of the Online Class in connection with this Agreement; (ii) agrees to obtain any necessary consent of and give notice of such recording to such third party, employee and/or contractor that is also using the Service and/or participating in the Online Class; and (iii) agrees that recordings may be submitted in evidence in any proceedings relating to this Agreement. Customer continued participation in the Online Class and/or Service shall constitute consent by Customer to the recording and/monitoring of the Online Class and/or Service. Customer acknowledges and agrees that it may not record the Content, Online Class or Service.
15. Force Majeure
No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (excluding Customer’s failure to pay amounts owed when due), when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control, including without limitation, acts of God, collapse of building structures, fires, floods, storms, earthquakes, epidemics or similar events, natural disasters or extreme adverse weather conditions, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, terrorism or wars, or strikes, riots, civil commotion, lock-outs, work stoppages. The accused party shall use reasonable efforts under the circumstances to remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased.
16. Dispute Resolution
In the event of any dispute, controversy or claim between the parties hereto arising out of or relating to this Agreement, the parties shall first seek to resolve the dispute in good faith through informal discussion. Customer agrees that before initiating any dispute or arbitration proceeding, the parties will attempt to negotiate an informal resolution of any dispute. To begin this process, before initiating any arbitration proceeding, Customer must send a written notice of dispute (“Dispute Notice”) by certified mail to 6731 Skyview Drive, Oakland, CA 94605. In the Dispute Notice, Customer must describe the nature and basis of the dispute and the relief Customer is seeking. If the parties are unable to resolve the dispute within 30 days after CircleUp Education’s receipt of the Dispute Notice, then Customer or CircleUp Education may initiate arbitration proceedings using the below procedure or small claims court.
Mandatory Binding Arbitration. The arbitration shall be administered by JAMS under its Comprehensive Rules in effect at the time the arbitration demand is made. The current rules, effective July 1, 2014, can be found here: http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS arbitration rules can be found here: http://www.jamsadr.com/rules-clauses/. In the event of any conflict between the rules and this Agreement, this Agreement shall apply. The parties agree to submit to the jurisdiction of a single neutral arbitrator selected in accordance with the JAMS Comprehensive Rules. The language of the arbitration shall be English. The arbitrator may grant injunctions or other relief in such dispute or controversy. The arbitrator’s decision shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court of competent jurisdiction. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement. During the arbitration, both Customer and CircleUp Education may take one deposition of the opposing party, limited to 4 hours. If the parties cannot agree on a time and location for a deposition, the arbitrator will resolve any scheduling disputes. Notwithstanding the foregoing, the arbitrator shall not have jurisdiction over any dispute relating to ownership, infringement or misappropriation of a party’s intellectual property or confidentiality rights unless the parties specifically so agree in writing in such matter, and either party may (after attempting informal resolution as provided above) submit any such dispute to any court in accordance with “Governing Law” section below, and may apply to any such court for injunctive relief in connection therewith. The arbitration will be held in the United States county where Customer lives or works, San Francisco, California, or any other location Customer and CircleUp Education mutually agreed upon in writing.
CLASS ACTION WAIVER. TO THE EXTENT PERMISSIBLE BY LAW, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE ACTION, OR NON-PAGA REPRESENTATIVE PROCEEDING (COLLECTIVELY “CLASS ACTION WAIVER”). THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS OR ENGAGE IN ANY CLASS ARBITRATION. CUSTOMER AGREES THAT, BY ENTERING INTO THESE TERMS, CUSTOMER AND CircleUp EDUCATION ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. Further, if the parties’ dispute is resolved through arbitration, neither JAMS nor the arbitrator may not consolidate another person’s claims with Customer’s claims or otherwise preside over any form of a representative or class proceeding for any purpose. If this specific provision is found to be unenforceable, then the entirety of this Section 16 shall be null and void.
In any lawsuit in which (1) the complaint is filed as a class action, collective action or non-PAGA representative action; and (2) the civil court of competent jurisdiction in which the complaint was filed finds the Class Action Waiver is unenforceable (and such finding is confirmed by appellate review if review is sought), the Class Action Waiver shall be severable from this Agreement and in such instances, the class action, collective action and/or non-PAGA representative action must be litigated in a civil court of competent jurisdiction and not as a class, collective or non-PAGA representative arbitration.
PAGA WAIVER: TO THE EXTENT PERMISSIBLE BY LAW, THERE WILL BE NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT, HEARD, OR ARBITRATED ON A GROUP BASIS OR IN ANY ACTION IN WHICH A PARTY SEEKS TO REPRESENT OTHER INDIVIDUAL(S) IN A PRIVATE ATTORNEY GENERAL ACTION (“PAGA WAIVER”). PAGA CLAIMS MAY ONLY BE ARBITRATED ON AN INDIVIDUAL BASIS.
In any lawsuit in which (1) the complaint is filed as a private attorney general action seeking to represent any individual(s) other than the named plaintiff; and (2) the civil court of competent jurisdiction in which the complaint was filed finds the PAGA Waiver is unenforceable (and such finding is confirmed by appellate review if review is sought), the PAGA Waiver shall be severable from this Agreement and in such instances, the private attorney general action must be litigated in a civil court of competent jurisdiction and not as a private attorney general arbitration.
Notwithstanding any other clause contained in this Agreement, any claim that all or part of the Class Action Waiver or PAGA Waiver is invalid, unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The Class Action Waiver and PAGA Waiver shall be severable when a dispute is filed as an individual action and severance is necessary to ensure that the individual action proceeds in arbitration.
Opt-out of Mandatory Arbitration. Customer may seek to resolve a dispute in small claims court if it qualifies. Customer may decline this mandatory arbitration provision within 30 days of accepting this Agreement by emailing CircleUp Education at 6731 Skyview Drive, Oakland, CA 94605 and indicating Customer’s intent to opt-out of the arbitration provision. Please include Customer’s contact details. Note that opting out of this arbitration provision does not affect any other part of these terms and this Agreement, including the provisions regarding controlling law or in which courts any disputes must be brought.
Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules. If Customer asserts a claim against CircleUp Education, Customer will be responsible for paying a $250 consumer filing fee. CircleUp Education will pay for reasonable arbitration fees where: (a) the claim for damages does not exceed $10,000, and (b) the claims are not frivolous under Federal Rule of Civil Procedure 11(b). CircleUp Education will not seek attorneys’ fees or costs in arbitration unless the arbitrator determines the claims are frivolous under Federal Rule of Civil Procedure 11(b).
Severability. With the exception of any of the provisions in this Section, if an arbitrator or court of competent jurisdiction decides that any part of these terms is invalid or unenforceable, the other parts of these terms will still apply.
Effect of Changes on Arbitration. Notwithstanding the provisions of Section 21 (Changes To Terms And Conditions), if CircleUp Education changes any of the terms of this Section 16 after the date Customer first accepted this Agreement (or accepted any subsequent changes to this Agreement), Customer may reject any such change by sending CircleUp Education written notice within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or the date of CircleUp Education’s email to Customer notifying Customer of such change. By rejecting any change, Customer are agreeing that Customer will arbitrate any dispute between CircleUp Education and Customer in accordance with the terms of this Section 16 as of the date Customer first accepted the Agreement (or accepted any subsequent changes to this Agreement).
17. Relationship of The Parties
Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship. Neither party shall have any right or authority to assume or create any obligation of any kind expressed or implied in the name of or on behalf of the other party.
CircleUp Education may provide Customer with access to third-party tools which CircleUp Education neither monitors nor has any control over or gives input. Customer acknowledges and agrees that CircleUp Education provides access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. CircleUp Education shall have no liability whatsoever arising from or relating to Customer’s use of optional third-party tools.
19. Entire Agreement
This Agreement contains the entire and final agreement between the parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Agreement and supersedes all prior or contemporaneous oral or written agreements, representations, understandings, undertakings and negotiations with respect to the subject matter hereof. This Agreement supersedes any prior written or oral agreements between the parties. The terms of this Agreement apply to the exclusion of any other terms that Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. Any purchase order submitted by Customer is for Customer’s internal purposes only and its terms and conditions are superseded and replaced by this Agreement, and the purchase order terms and conditions have no force or effect. Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of CircleUp Education that is not set out in this Agreement. In the event of a conflict between any policies posted on the Service and this Agreement, this Agreement will control.
If any provision of this Agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
21. Changes to Terms and Conditions
Customer can review the most current version of the Agreement at any time on the Website. CircleUp Education reserves the right, at its sole discretion, to update, change or replace any part of these terms by posting updates and changes to its Website (as indicated by a revised “Last Updated” date at the top of this page). It is Customer’s responsibility to check the Website periodically for changes. Modifications will be effective on the date that they are posted to the Website. Customers continued use of or access to the Website or the Service following the posting of any changes to these terms constitutes acceptance of those changes. CircleUp Education may change or discontinue all or any part of the Service, at any time and without notice, at its sole discretion.
21. Governing Law
This Agreement shall be governed by the laws of the state of California, without regard to its conflict of laws principles. The parties hereby irrevocably consent to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in Alameda County, California, for the purposes of adjudicating any dispute arising out of this Agreement. Each party hereto expressly consents to service of process by registered mail. To the extent permitted by law, choice of law rules and the United Nations Convention on Contracts for the International Sale of Goods shall not apply. Notwithstanding the foregoing, either party may at any time seek and obtain appropriate legal or equitable relief in any court of competent jurisdiction for claims regarding such party’s intellectual property rights.
Customer consents to receive all communications including notices, agreements, disclosures, or other information from CircleUp Education electronically. CircleUp Education may communicate by email or by posting to the Website. For all notices to CircleUp Education, write to the following addresses: 6731 Skyview Drive, Oakland, CA 94605
24. Waiver of Contractual Right
The failure of CircleUp Education to enforce any provision of this Agreement shall not be construed as a waiver or limitation of CircleUp Education’s right to subsequently enforce and compel strict compliance with every provision of this Agreement. A waiver of any right is only effective if it is in writing by an authorized representative of CircleUp Education and only against the party who signed such writing and for the circumstances given. CircleUp Education’s rights and remedies hereunder are cumulative and not exclusive
Any Services provided by CircleUp Education under these terms and conditions are personal to Customer and cannot be transferred or assigned to any other person. CircleUp Education shall be entitled to assign these terms and conditions to any other company without prior notice to Customer. CircleUp Education may assign, transfer, sub-contract any of our rights or obligations to any third party at CircleUp Education’s sole and absolute discretion.
26. Construction and Interpretation
The rule requiring construction or interpretation against the drafter is waived. The document shall be deemed as if it were drafted by both parties in a mutual effort. Section headings are for convenience only and are not to be used in interpreting this Agreement.