CircleUp Education Terms of Use
Last updated 2nd of May, 2020
Terms of Use
PLEASE READ THESE TERMS OF USE CAREFULLY. THIS IS A BINDING CONTRACT. Welcome to the CircleUp Education (“CircleUp” or “we”) website available at www.circleuped.org (“Site”).
THESE TERMS OF USE (“TERMS”) MAY CHANGE FROM TIME TO TIME. WE WILL NOTIFY YOU OF ANY MATERIAL CHANGES TO THESE TERMS BY POSTING A NOTICE ON THE HOMEPAGE OF THE SITE FOR A REASONABLE PERIOD OF TIME AFTER SUCH CHANGES ARE MADE, EMAIL YOU NOTICE OF SUCH CHANGES TO THE EMAIL ADDRESS ON FILE THROUGH YOUR REGISTRATION AND BY CHANGING THE "LAST UPDATED" DATE AT THE TOP OF THIS WEBPAGE. WE ENCOURAGE YOU TO CHECK THIS PAGE PERIODICALLY FOR ANY CHANGES. YOUR CONTINUED USE OF THE SITE FOLLOWING THE POSTING OF CHANGES TO THESE TERMS WILL MEAN YOU ACCEPT THOSE CHANGES.
IN ADDITION, WHEN USING PARTICULAR SERVICES OR FEATURES, YOU SHALL BE SUBJECT TO ANY POSTED GUIDELINES OR POLICIES APPLICABLE TO SUCH SERVICES, FEATURES OR PURCHASES THAT MAY BE POSTED FROM TIME TO TIME. THE PRIVACY POLICY AND ALL SUCH GUIDELINES OR POLICIES ARE HEREBY INCORPORATED BY REFERENCE INTO THESE TERMS. YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE SITE.
Acceptance Of Terms
Your access to and use of the Site is subject exclusively to these Terms. You will not use the Site for any purpose that is unlawful or prohibited by these Terms. By using the Site, you are fully accepting the terms, conditions, and disclaimers contained in these Terms. If you do not accept these Terms you must immediately stop using the Site.
Minors
The Site is not available to children under 18 years of age or users who have had their account temporarily or permanently deactivated. In order to make a purchase, a parent or guardian of at least 18 years of age must be present. You represent and warrant that you are at least 18 years old and that you have the right, authority and capacity to enter into and abide by the terms of these Terms.
Intellectual Property
Except for User Content (defined below), all products, data, text, images, logos, photographs, advertisements, graphics, press releases, audio, video, documents, trademarks, copyrights and other information and content available on or through the Site (“Content”), is the property of CircleUp or its licensors. The Content is protected by copyright, trademark, and/or other intellectual property laws and you acknowledge and agree that we retain all right, title and interest in and to the Content.
Unless otherwise noted all materials, including products, images, illustrations, designs, icons, photographs, sounds, video clips, written, and other materials that appear as part of this site are copyrights, trademarks, trade dress and/or other forms of intellectual property owned, controlled, and/or used under license or with other legal authority by CircleUp. The Site as a whole is protected by copyright and trade dress, all worldwide rights, titles and interest in and to which are owned by CircleUp.
Except as expressly authorized by these Terms of Use or on the Site, you may not copy, reproduce, distribute, republish, download, perform, display, post, transmit, exploit, create derivative works or otherwise use any of the aforementioned copyright or trademark materials in any form or by any means, without the prior written authorization of CircleUp or the respective copyright/trademark owner. CircleUp authorizes you only to view, not download, these copyright and trademark materials only for personal, non-commercial use, provided that you keep intact all copyright and other proprietary notices contained in the original versions of said materials.
The material and content accessible from this Site, and any other Site owned, operated, licensed, or otherwise controlled by CircleUp is the proprietary information of CircleUp or the party that provided or licensed the content to CircleUp, whereby such providing party retains all rights, title and interest in the content. Accordingly, the content may not be copied, distributed, republished, uploaded, posted, or transmitted in any way without the prior written consent of CircleUp, except that you may print out a copy of the content solely for your personal use. In doing so, you may not remove or alter, or cause to be removed or altered, any copyright, trademark, trade name, service mark, or any other proprietary notice or legend appearing on any of the Content. Modification or use of the content except as expressly provided in these Terms of Use violates CircleUp’s intellectual property rights. Neither title nor intellectual property rights are transferred to you by access to this Site.
You agree that you will not: (1) create any materials that use the Content or any derivatives of the Content as a trademark, service mark, trade name or trade dress, other than as expressly approved by CircleUp in writing; (2) use the Content in any way that tends to impair their validity as proprietary trademarks, service marks, trade names or trade dress, or use the Content other than in accordance with the terms, conditions and restrictions herein; (3) take any other action that would jeopardize or impair CircleUp’s rights as owner of the Content or the legality and/or enforceability of the Content, including, challenging or opposing CircleUp’s ownership in the Content; (4) apply for trademark registration or renewal of trademark registration of any of the Content, any derivative of the Content, any combination of the Content and any other name, or any trademark, service mark, trade name, symbol or word which is similar to the Content; (5) use the Content on or in connection with any product, service or activity that is in violation of any law, statute, government regulation or standard.
Site is solely for personal, non-commercial purposes related to placing an order or shopping on the Site. Any other use of any content included on the website, including linking or framing to this Site, is strictly prohibited unless you first obtain our prior written consent and approval.
Colors
We have made efforts to display accurately the colors of products that appear on our Site. However, as the actual colors you see will depend on your monitor and/or other technological circumstance, we cannot and do not guarantee that your monitor's display of any color will be accurate.
Errors and Inaccuracies
We always strive to provide complete, accurate, up-to-date information on our Site. Unfortunately, despite those efforts, human or technological errors may occur. This Site may contain typographical mistakes, inaccuracies, or omissions, some of which may relate to pricing, availability and shipping, and some information may not be complete or current. We reserve the right to correct any errors, inaccuracies or omissions, including after an order has been submitted and whether or not the order has been confirmed and your payment method charged, and to change or update information at any time without prior notice. If your selected payment method has been charged and we cancel your order, we will issue the credit back to your applicable payment method. Individual bank or other payment processing policies dictate when this amount is credited to your account.
Return Policy
Return Policy
You may return new, unopened physical items, with the packaging intact, within sixty (60) days of purchase for a full refund. Only products purchased directly through the Site are eligible for this return policy. The items must be received within one week from a request for a refund for the return to be valid. Return shipping costs will be paid by CircleUp. All returns shall be processed and shipped within ten (10) days of us receiving the returned item(s). Please contact us at solutions@circleuped.org with your order number and details to receive a return shipping label and instructions on how to return your item(s).
All online curricula, digital lesson plans, posters, recorded video trainings, and any other PDF or digitally delivered products are FINAL SALE and no refunds, returns or exchanges will be accepted for these items.
Please note, all returns must be included in original packaging accompanied by a copy of the order invoice. We will not accept any packages sent without authorization. Any shipments received that have not been authorized will be refused/shipped back.
Please make sure that you have carefully reviewed your order prior to finalizing your purchase.
Product Availability
Although availability may be indicated on our Site, we cannot guarantee product availability. We reserve the right, without liability or prior notice, to revise, discontinue or cease to make available any or all products.
Accuracy of Billing and Account Information
We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same name, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
You agree to provide current, complete and accurate purchase and account information for all purchases made on our Site. You agree to promptly update billing and other information, including your email address and payment processing information, so that we can complete your transactions and contact you as needed.
Communications Services
I. User Content
CircleUp may permit users to post content on or through the Site, including comments and reviews for our goods and services (“User Content”). You understand and agree that CircleUp does not review User Content prior to posting and is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to User Content. You acknowledge that you may see User Content on the Site that you find inaccurate, offensive, indecent, or objectionable; and you agree to, and hereby do, waive any legal or equitable claims, rights, or remedies you may have against CircleUp arising from or relating to User Content.
If you choose to post User Content, please be aware that your User Content will be available to the public. You should therefore only post User Content you are comfortable sharing under these Terms.
You are solely responsible for your User Content and the consequences of posting your User Content to the Site. You represent and warrant that you own or have the necessary licenses, rights, consents, permissions, and releases to publish or perform User Content you post or submit and to grant CircleUp the licenses and rights set forth in these Terms.
You retain all rights in and to the User Content you post or submit to the Site. However, by posting or submitting User Content, you hereby grant CircleUp a perpetual, nonexclusive, royalty-free, transferable, sublicensable, irrevocable, worldwide right and license to reproduce, prepare derivative works of, distribute, publicly perform, publicly display, adapt, broadcast, communicate and otherwise use your User Content (including any copyright, trademark, publicity, or other proprietary rights therein and thereto) in whole or in part, for any purpose, including without limitation in connection with the Site and CircleUp’s business, marketing or promotional purposes, and/or for syndicating User Content, promoting or redistributing part or all of the Site (and derivative works thereof) in any website, online application, mobile application, social media channel, or other medium now known or later developed. You also hereby grant CircleUp a perpetual, nonexclusive, royalty-free, transferable, sublicensable, irrevocable worldwide right and license to use your name, likeness, video, voice, photograph, image, voice, content and statements in connection with your User Content, any video instruction course you partake in and any derivative works thereof, including to promote or advertise the services or the products and services of affiliates, advertisers and other third parties. This means, for example, that you permit a business or other entity to pay us to display your name and/or picture with your content or information, without any compensation to you. To the extent permitted by law, you hereby waive any moral rights you may have in or to your User Content.
You agree that you are not entitled to any compensation if your User Content, including without limitation, your name, likeness, photograph or image is adjacent to or included with advertisements, promotions, coupons, offers or other information, or otherwise used to promote the products and services of CircleUp or any other company or product that is addressed in your User Content.
II. Acceptable Uses
As a condition of use, you promise not to use the Site, specifically product and services review and message board features (“Communication Services”), for any purpose that is unlawful or prohibited by these Terms, or any other purpose not intended by CircleUp. Including the following, but not limited to, you agree not to use the Site or the Communication Services for any of the following purposes:
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To abuse, harass, threaten, impersonate or intimidate any person;
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To violate these Terms;
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To circumvent the Site as provided by CircleUp or receive CircleUp trade secret or other confidential information;
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To breach any other agreements you enter into with third parties;
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To post or transmit, or cause to be posted or transmitted, any visual content or communications that are libelous, defamatory, obscene, pornographic, abusive, offensive, profane or that infringes any copyright or other right of any person;
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For any purpose that is not permitted under the laws of the jurisdiction where you are accessing the Site;
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To post or transmit, or cause to be posted or transmitted, any communication designed or intended to obtain password, account or private information from any other user on the Site;
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To create or transmit unwanted ‘spam’ to any person or any URL;
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To post copyrighted content that does not belong to you;
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You agree not to use any robot, spider, scraper, or other automated means to access or use the Site for any purpose without our express written permission. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site; (iii) bypass any measures we may use to prevent or restrict Site access;
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To advertise to, or solicit, any user to buy or sell any third-party products or services, or to use any information obtained from the Site in order to contact, advertise to, solicit, or sell to any user without their prior explicit consent; or
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To advocate, encourage, or assist any third-party in doing any of the foregoing
CircleUp takes no responsibility and assumes no liability for anything posted through the Communication Services, or for any loss or damage resulting therefrom, nor is CircleUp liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter when using the Site. Your use of the Site is at your own risk. In addition, these rules do not create any private right of action on the part of any third-party or any reasonable expectation that the Site will not contain any content that is prohibited by such rules. To report a suspected abuse of the Site or a breach of the Terms please send written notice to CircleUp by email to: solutions@circleuped.org. You are solely responsible for your interactions with other users of the Site. CircleUp has no obligation to monitor disputes between you and other users.
III. Use Of Communication Services
CircleUp has no obligation to monitor the Communication Services. However, CircleUp reserves the right to review materials posted to a Communication Service and to remove any materials in its sole discretion. CircleUp reserves the right to terminate your access to any or all of the Communication Services at any time without notice for any reason whatsoever.
CircleUp reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in CircleUp'S sole discretion.
Always use caution when giving out any personally identifying information about yourself or your children in any Communication Service. CircleUp does not control or endorse the content, messages or information found in any Communication Service and, therefore, CircleUp specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Service. Users are not authorized CircleUp spokespersons, and their views do not necessarily reflect those of CircleUp.
IV. Notice And Takedown
If you believe your copyright-protected work was posted on CircleUp without authorization, you may submit a copyright infringement notification. These requests should only be submitted by the copyright owner or an agent authorized to act on the owner’s behalf. The fastest and easiest way to notify CircleUp of alleged copyright infringement is via e-mail at: solutions@circleuped.org.
DMCA Notice
You may submit a notification pursuant to the Digital Millennium Copyright Act (DMCA) by providing our us with the following information in writing (see 17 U.S.C 512(c)(3) for further details):
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An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright’s interests
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A description of the copyrighted work that you claim has been infringed, including the URL (i.e., web page address or item number) of the location where the copyrighted work exists or a copy of the copyrighted work
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Identification of the URL or other specific location on the Service where the material that you claim is infringing is located
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Your address, telephone number, and email address
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A statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law
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A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Disclaimers And Limitation Of Liability
The following disclaimers are made on behalf of CircleUp, our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, and shareholders.
All Content, including without limitation, any products, advice, recommendation or opinion, offer or coupon, or other information provided on or through the Site is for informational purposes only, and should not be construed to indicate that any such Content is endorsed by CircleUp, nor is there any representation or warranty by CircleUp that the Content is reliable, accurate, timely, complete, effective, or safe for your use. YOU ACKNOWLEDGE THAT RELIANCE ON ANY INFORMATION PROVIDED ON OR THROUGH THE SITE IS SOLELY AT YOUR OWN RISK.
THE SITE AND ALL CONTENT ON OR AVAILABLE THROUGH THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CIRCLEUP EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. FURTHER, CIRCLEUP MAKES NO WARRANTY THAT: (A) THE SITE, WILL MEET YOUR REQUIREMENTS; (B) THE SITE WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (C) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SITE WILL BE ACCURATE, TIMELY, OR RELIABLE; OR (D) THE QUALITY OF THE SITE WILL MEET YOUR EXPECTATIONS. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE AND ANY THIRD PARTY SITE. CIRCLEUP SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF THE SITE OR ANY THIRD PARTY SITE.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR SOFTWARE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOUR COMPUTER SYSTEM, INTERNET ACCESS, DOWNLOAD OR DISPLAY DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
IF THE JURISDICTION YOU ARE IN DOES NOT ALLOW FOR THE EXCLUSION OF CERTAIN WARRANTIES, THEN SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU IN CERTAIN CIRCUMSTANCES.
IN NO EVENT WILL CIRCLEUP, INCLUDING OUR AFFILIATES, SUBSIDIARIES, PARENTS, SUCCESSORS AND ASSIGNS, AND EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SHAREHOLDERS (COLLECTIVELY “CIRCLEUP” FOR PURPOSES OF THIS SECTION), BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE SITE, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE SITE, A PURCHASE OF GOODS OR SERVICES, OR THESE TERMS, HOWEVER ARISING INCLUDING NEGLIGENCE, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
Indemnity
You will defend, indemnify, and hold CircleUp including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your use of the Site and participation in the Site, including: (1) your breach of these Terms or the documents it incorporates by reference; (2) your violation of any law or the rights of a third party as a result of your own interaction with such third party; (3) any allegation that any materials that you submit to us or transmit through the Site or to us infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; (4) any other activities in connection with the Site. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.
Links To Third Party Websites
The Site may include links to third party websites that are controlled and maintained by others. Any link to other websites is not an endorsement of such websites and you acknowledge and agree that we are not responsible for the content or availability of any such sites.
Optional Tools
We may provide you with access to third-party tools over which we neither monitor nor have any control nor input. You acknowledge and agree that we provide access to such tools, “as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools. Any use by you of optional tools offered through the Site, or as a function of the Service, is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s). We may also, in the future, offer new services and/or features through the Site (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms.
Additionally, CircleUp may provide other third-party content on the Site (collectively the “Third-Party Content”). CircleUp does not control or endorse any Third-Party Content and makes no representation or warranties of any kind regarding the Third-Party Content, including without limitation regarding its accuracy or completeness. Please be aware that we do not create Third Party Content, update, or monitor it. Therefore, we are not responsible for any Third-Party Content on the Site.
Termination
To the fullest extent permitted by applicable law, CircleUp reserves the right, without notice and in our sole discretion, to terminate your license to use the Site and to block or prevent your future access to and use of the Site, including where we reasonably consider that: (a) your use of the Site violates these Terms or applicable law; (b) you fraudulently use or misuse the Site; or (c) we are unable to continue providing the Site to you due to technical or legitimate business reasons. To the fullest extent permitted by applicable law, your only remedy with respect to any dissatisfaction with (i) the Site, (ii) any term of these Terms, (iii) any policy or practice of CircleUp in operating the Site, or (iv) any content or information transmitted through the Site, is to discontinue use of any and all parts of the Site
Force Majeure
In case of force majeure, we are not obliged to fulfill our obligations. In that case we may either suspend our obligations for the duration of the state of force majeure or definitely repudiate these Terms of Use.
Events of force majeure are all circumstances external to our will and control that render the respect of our obligations completely or partly impossible. Such events include, but are not limited to, any Act of God, epidemic, pandemic, terrorism, war, political insurgence, insurrection, riot, civil unrest, act of civil or military authority, uprising, earthquake, flood, disruption of energy supplies or telecommunication networks or communication systems and/or the temporary down-time of the Site, late delivery or absence of delivery by suppliers or other third parties, or any other natural or man-made eventuality outside of our control, which causes the termination of an agreement or contract entered into, nor which could have been reasonably foreseen. In the case of a force majeure event, you are responsible for filing claims with the proper third-party entities.
Waiver
Failure of either Party to insist upon strict performance of any provision of this or any Terms or the failure of either Party to exercise any right or remedy to which it, he or they are entitled hereunder shall not constitute a waiver thereof and shall not cause a diminution of the obligations under this or any Terms. No waiver of any of the provisions of this or any Terms shall be effective unless it is expressly stated to be such and signed by both Parties.
Geographical Use
Although this Site may be accessible worldwide, the materials, products and services on this Site are not available for use in locations outside the United States of America. We currently do not allow purchases outside of the United States. Furthermore, we make no claims that the Site is accessible or appropriate outside of the United States. Access to the Site may not be legal by certain persons or in certain countries. If you access the Site from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
Severability
If any of these Terms should be determined to be invalid, illegal or unenforceable for any reason by any court of competent jurisdiction then such term or condition shall be severed and the remaining Terms shall survive and remain in full force and effect and continue to be binding and enforceable.
Governing Law And Jurisdiction
These Terms, the Privacy Policy and any separate agreements whereby we provide you services shall be governed by the laws of the State of California. The parties agree exclusive jurisdiction shall be in San Francisco County, California for any and all issues arising out of the Terms or any related documents or transactions. 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
Assignment
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by CircleUp without restriction. Any assignment attempted to be made in violation of these Terms shall be void.
Entire Agreement
The Terms, together with the Terms of Service and the Privacy Policy, is the entire agreement between you and CircleUp relating to the subject matter herein and will not be modified except in writing, signed or otherwise agreed to by both parties, or by a change to these Terms made by CircleUp as set forth above. Any ambiguities in the interpretation of these Terms shall not be construed against the drafting party.
Agreement Shall Be Binding
These Terms shall be binding upon, and inure to the benefit of, the heirs, executors, administrators, successors and assigns of the parties [unless to the contrary specifically provided in any particular covenant, term or condition hereof].
Arbitration Agreement
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. User 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, User must send a written notice of dispute (“Dispute Notice”) by certified mail to 6731 Skyview Drive, Oakland, CA 94605. In the Dispute Notice, User must describe the nature and basis of the dispute and the relief User is seeking. If the parties are unable to resolve the dispute within 30 days after CircleUp’s receipt of the Dispute Notice, then User or CircleUp 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 User and CircleUp 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 User lives or works, San Francisco, California, or any other location User and CircleUp 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. USER AGREES THAT, BY ENTERING INTO THESE TERMS, USER AND CIRCLEUP 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 User’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 Arbitration Agreement Section 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. User may seek to resolve a dispute in small claims court if it qualifies. User may decline this mandatory arbitration provision within 30 days of accepting this Agreement by emailing CircleUp at solutions@circleuped.org and indicating User’s intent to opt-out of the arbitration provision. Please include User’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 User asserts a claim against CircleUp, User will be responsible for paying a $250 consumer filing fee. CircleUp 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 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. If CircleUp changes any of the terms of this Arbitration Section after the user first accepted this Agreement (or accepted any subsequent changes to this Agreement), User may reject any such change by sending CircleUp 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’s email to User notifying User of such change. By rejecting any change, user is agreeing that the user will arbitrate any dispute between CircleUp and User in accordance with the terms of this Section as of the date User first accepted the Agreement (or accepted any subsequent changes to this Agreement).