Last Updated: May 1, 2018
READ THESE TERMS CAREFULLY BEFORE BROWSING THIS WEBSITE. USING THIS WEBSITE INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS. YOU CANNOT USE THIS WEBSITE IF YOU DO NOT ACCEPT THESE TERMS.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH THE COMPANY. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
We may alter the Materials and Services We offer You and/or choose to modify, suspend or discontinue this Website at any time and without notifying You. We may also change, update, add or remove provisions (collectively, “modifications”) of these Terms from time to time. We promise to inform You of any modifications to these Terms by posting them on this Website and, if You have registered with Us, by describing the modifications to these Terms in an email that We will send to the address that You provided during registration. To be sure We properly reach Your email inbox, We just ask that You let Us know if Your preferred email address changes at any time after Your registration.
If You object to any such modifications, Your sole recourse shall be to cease using this Website. Continued use of this Website following notice of any such modifications indicates You acknowledge and agree to be bound by the modifications. Also, please know that these Terms may be superseded by expressly-designated legal notices or terms located on particular pages of this Website. These expressly-designated legal notices or terms are incorporated into these Terms and supersede the provision(s) of these Terms that are designated as being superseded.
The Services constitute a technology platform that allows users to request and schedule childcare services. We enable individuals seeking childcare services ("Care Seekers") to submit booking requests for childcare services through the Website, and We enable individuals who provide childcare services ("Care Providers") to seek bookings. “Users” refers to both Care Seekers and Care Providers. “You” refers to You in Your capacity either as a Care Seeker or a Care Provider, as applicable.
While We connect Care Seekers and Care Providers, We do not employ any Care Providers. We do not have control over the quality, timing, or legality of the services actually delivered by Care Providers, or of the integrity, responsibility or actions of Care Seekers or Care Providers, and We do not make any representations about the suitability, reliability, timeliness, and accuracy of the services provided by Care Providers or the integrity, responsibility or actions of Care Seekers or Care Providers whether in public, private or offline interactions.
We do not assume any responsibility for the accuracy or reliability of any information provided by Care Providers or Care Seekers on or off this Website. We may offer certain Users the opportunity to verify certain information such as their email address or cell phone number. If We indicate that a User has verified certain information, it means that the User has complied with the process We have established for verifying such information. However, We do not guarantee, nor do We represent or warrant as to, the accuracy of such information.
We are not responsible for the conduct, whether online or offline, of any Care Seeker, Care Provider or other user of the Website or Services. Moreover, We do not assume and expressly disclaim any liability that may result from the use of information provided on our Website. All Users, including both Care Seekers and Care Providers, hereby expressly agree not to hold Us (or Our officers, directors, shareholders, employees, subsidiaries, other affiliates, successors, assignees, agents, representatives, or independent contractors) liable for the actions or inactions of any Care Seeker, Care Provider or other third party or for any information, instruction, advice or services which originated through the Website, and, to the maximum extent permissible under applicable law, We expressly disclaim any liability whatsoever for any damage, suits, claims, and/or controversies that have arisen or may arise, whether known or unknown therefrom.
Our Services are available only to individuals who are eighteen (18) years of age or older, or the age of legal majority in Your jurisdiction (if different than 18). If You do not meet the above age requirements, do not register to use the Website or Services.
If You are registering to be a Care Provider, You must be permitted to legally work within the United States.
If You are a Care Seeker, You may use Your account only to find care for Your children or individuals for whom You are otherwise the legal guardian. If You are a Care Provider, You may use Your account only to find childcare jobs for Yourself. The uses of the Website and Services that are permitted in this paragraph are referred to as "Permitted Purposes".
In these Terms We are granting You a limited, personal, non-exclusive and non-transferable license to use and to display the Materials; Your right to use the Materials is conditioned on Your compliance with these Terms. You have no other rights in this Website or any Materials and You may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of this Website or Materials in any manner. If You make copies of any of this Website while engaging in Permitted Purposes then We ask that You be sure to keep on the copies all of Our copyright and other proprietary notices as they appear on this Website.
Unfortunately, if You breach any of these Terms the above license will terminate automatically and You must immediately destroy any downloaded or printed Materials (and any copies thereof).
In order to access certain password-restricted areas of this Website and to use certain Services and Materials offered on and through this Website, You must successfully register an account with Us.
If You want an account with Us, You must submit certain information through the account registration page on this Website. Once You submit the required registration information, We alone will determine whether or not to approve Your proposed account. For so long as You use the account, You agree to provide true, accurate, current, and complete information which can be accomplished by logging into Your account and making relevant changes directly or contacting Us using the below contact information and We can make the changes for You. And, if You forget Your password, You can request a password reset on the account login page.
You are responsible for complying with these Terms when You access this Website, whether directly or through any account that You may setup through or on this Website. Because it is Your account, it is Your job to obtain and maintain all equipment and services needed for access to and use of this Website as well as paying related charges. It is also Your responsibility to maintain the confidentiality of Your password(s), including any password of a third-party site that We may allow You to use to access this Website. Should You believe Your password or security for this Website has been breached in any way, You must immediately notify Us.
Text messages are an integral part of the Poppy Care Service. We use text messages to schedule Poppy appointments, to communicate with Care Providers and Care Seekers about scheduled appointments, provide Care Seekers with information regarding their membership, as well as to communicate additional information that we think is helpful or interesting. We find text message to be the best way for quick and easy communication between You and us.
Types of Poppy Texts. With Your consent, we may send You:
You can choose to receive only Booking Texts, or to also receive other texts, when You sign up, and You can opt out of any or all text messages from Poppy at any time.
Opting In. When You sign up for the Poppy Care Services, You will be asked to consent to receive Booking Texts in order to complete Your sign up. You also have the choice to sign up to Outreach Texts and Promotional Texts – these texts are optional. We may send You an SMS message to confirm Your signup and Your consent.
Opting Out. You may opt-out of SMS messages from Poppy at any time.
Help. If You need help using the Services or would like an explanation of Your opt-out options, text HELP to 206-429-8984, and we will reply to assist You. You can also contact as at firstname.lastname@example.org to request assistance using the Services.
Opting Back In. SMS is how we communicate with You; if You opt out of receiving Booking Texts from Poppy, we can’t effectively communicate with You and we are not able to serve You. If You have opted out of receiving Poppy Booking Texts, before You can use the Services again, You must text “START” to 206-429-8984 to opt back in.
Message and Data Rates. Message and data rates apply for any text messages sent to You from us and to us from You. For questions about text message rates and costs, You should contact Your mobile service provider.
Use of the Services may result in charges to Care Seekers both for Our Services and for the services Care Seekers receive from Care Providers ("Charges"). You agree to pay all applicable fees related to Your use of this Website and Our Services which are described fully on Our Website . We may suspend or terminate Your account and/or access to Our Services and this Website if Your payment is late and/or Your offered payment method (e.g., credit card or debit card) cannot be processed. By providing a payment method, You expressly authorize Us to charge the applicable fees on said payment method as well as any applicable taxes and other charges incurred thereto at regular intervals, all of which depend on Your particular membership and the services you have used.
We understand that You might cancel Your account, but please know that We will not provide any refund(s) and You will be responsible for paying any balance due on the account. You agree that We may charge any unpaid fees to Your provided payment method and/or send You a bill for such unpaid fees.
Care Seekers must pay a monthly membership fee (a “Membership”) to make bookings through the Service. Each Membership and the rights and privileges provided to a Care Seeker is personal and non-transferable. Except when required by law, all Membership fees are non-refundable. We reserve the right to change prices for Membership at any time. Any Membership fee change will become effective at the end of Your then-current billing cycle. We will provide You with reasonable prior notice of any Membership fee change to give You an opportunity to terminate Your Membership before such change become effective. Your continued use of Our Services after the Membership fee change comes into effect constitutes Your agreement to pay the modified Membership fee amount. We do not provide price protection or refunds in the event of Membership promotions or price decreases.
WE WILL AUTOMATICALLY RENEW YOUR MEMBERSHIP ON EACH MONTHLY ANNIVERSARY OF THAT DATE THAT WE FIRST CHARGED YOUR CREDIT OR DEBIT CARD FOR YOUR FIRST MONTHLY MEMBERSHIP FEE. AS AUTHORIZED BY YOU DURING THE MEMBERSHIP SIGN-UP PROCESS, WE WILL CHARGE YOUR CREDIT OR DEBIT CARD WITH THE APPLICABLE MONTHLY MEMBERSHIP FEE (PLUS ANY APPLICABLE SALES OR SIMILAR TAXES) UNLESS YOU CANCEL PRIOR TO YOUR MONTHLY ANNIVERSARY DATE. WE WILL SEND YOU A REMINDER (VIA TEXT AND/OR EMAIL) PRIOR TO EACH MONTHLY RENEWAL OF YOUR MEMBERSHIP REMINDING YOU THAT YOUR MEMBERSHIP WILL RENEW FOR ANOTHER MONTH. YOU MAY CANCEL OR TEMPORARILY PAUSE YOUR MEMBERSHIP AT ANY TIME BY MODIFYING YOUR ACCOUNT SETTINGS ON OUR WEBSITE, BY SENDING AN EMAIL TO HELLO@MEETPOPPY.COM OR BY NOTIFYING US THROUGH SMS TEXT, PROVIDED THAT ANY MEMBERSHIP FEES CHARGED PRIOR TO THE EFFECTIVE DATE OF CANCELLATION OR TEMPORARY PAUSE WILL NOT BE REFUNDED, IN WHOLE OR IN PART. YOU WILL NOT BE ELIGIBLE FOR A PRO-RATED REFUND OF ANY PORTION OF THE MEMBERSHIP FEES PAID FOR ANY UNUSED DAYS OF THE THEN-CURRENT MONTHLY SUBSCRIPTION TERM. WE REQUIRE A REASONABLE AMOUNT OF TIME TO PROCESS YOUR MEMBERSHIP CANCELLATION REQUEST. IF YOU CANCEL OR PAUSE YOUR MEMBERSHIP, YOU WILL ENJOY YOUR MEMBERSHIP BENEFITS UNTIL THE EXPIRATION OF THE THEN-CURRENT MONTHLY MEMBERSHIP TERM FOR WHICH YOU HAVE PAID, AND YOUR MEMBERSHIP BENEFITS WILL EXPIRE AT THE END OF THE THEN-CURRENT MONTHLY MEMBERSHIP TERM.
We may, at our sole discretion, may offer a Membership with a free trial for a limited period of time (a “Free Trial”). In such cases, You are required to enter Your billing information in order to sign up for a Free Trial. AT THE END OF THE FREE TRIAL PERIOD, UNLESS YOU HAVE CANCELLED YOUR MEMBERSHIP, YOU WILL BE AUTOMATICALLY CHARGED THE APPLICABLE MONTHLY MEMBERSHIP FEE. At any time and without notice, We reserve the right to modify the terms and conditions of the Free Trial or cancel such Free Trial.
Payments to Care Providers
After a Care Seeker has received services from a Care Provider, We may facilitate payment of the applicable Charges on behalf of the Care Provider, as such Care Provider's limited payment collection agent. Payment of the Charges in such manner shall be considered the same as payment made directly by Care Seekers to Care Providers. Charges will be inclusive of applicable sales taxes, where required by law. Charges paid are final and non-refundable, unless otherwise determined by Us. The portion of Charges paid by Care Seekers to Care Providers for Care Providers’ services will be passed on to Care Providers, less applicable Poppy Fees (defined below).
If You are a Care Provider, You acknowledge and agree that Our provision to You of the Services creates a direct business relationship between Us and You. We do not, and shall not be deemed to, direct or control You generally or in Your provision of childcare services. You retain the sole right to determine when and for how long You will utilize the Services. You acknowledge and agree that You have complete discretion to provide services or otherwise engage in other business or employment activities. The manner and means by which You choose to provide the childcare services are in Your sole discretion and control. For the sake of clarity, You understand that You retain the complete right to: (i) use other software application services in addition to the Services; and (ii) engage in any other occupation or business. We retain the right to, at any time at Our sole discretion, deactivate or otherwise restrict You from accessing or using the Services in the event of a violation of these Term, Your disparagement of Us, Your act or omission that causes harm to Us or Our brand, reputation or business as determined by Us in Our sole discretion, or for any other reason at Our reasonable discretion. Your accessing of the Website does not guarantee You any work with any Care Seekers.
You acknowledge and agree that at all times, You shall: (a) hold and maintain all licenses, permits, approvals and authority applicable to You that are necessary to provide childcare services to third parties; (b) possess the appropriate and current level of training, expertise and experience to provide childcare services in a professional manner with due skill, care and diligence; and (c) maintain high standards of professionalism, service and courtesy. You acknowledge and agree that You may be subject to certain background record checks from time to time in order to qualify to provide, and remain eligible to provide, childcare services.
You (i) appoint Us as Your limited payment collection agent solely for the purpose of collecting the applicable Charges, including any applicable taxes and fees, from the Care Seeker on Your behalf via the payment processing functionality facilitated by our Services, and (ii) agree that payment made by Care Seeker shall be considered the same as payment made directly by Care Seeker to Care Provider. Notwithstanding the foregoing, where Poppy facilitates the credit card payment between Care Seekers and Care Givers, Poppy reserves the right to collect a Poppy service fee (“Poppy Fees”) from Care Givers as a portion of Charges, and/or to charge an additional payment service fee to Care Seekers. You further agree that You shall pay to Poppy any applicable Poppy Fees, which shall be deducted from any Charges collected from a Care Seeker on Your behalf. Any applicable Poppy Fees will be deducted from the Charges paid by Care Seeker to You, and paid to Poppy.
Except as otherwise expressly provided herein with respect to Us acting as the limited payment collection agent solely for the purpose of collecting payment from Care Seekers on Your behalf, the relationship between Us and Care Providers is solely that of independent contractors. You expressly agree that: (a) these Terms do not represent an employment agreement, nor does it create an employment relationship, between You and Us; and (b) no joint venture, partnership, or agency relationship exists between You and Us. You are not authorized to bind Us to any liability or obligation or to represent that You have any such authority. You acknowledge and agree that You are obligated to report as income all compensation received by You for providing childcare services and agree to and acknowledge the obligation to pay all self-employment and other taxes on such income.
By using the Website or Services as a Care Seeker or Care Provider, You hereby acknowledge and agree that We have the right, but not the obligation, to use a third-party consumer reporting agency and other third party service providers to run periodic background checks on You for the legitimate business purpose of protecting the safety and integrity of Our Website and Our Users.
You understand and agree that We may review the information provided by the third-party consumer reporting agency and other third party service providers and that We retain the right to terminate Your account based on the information We receive from these checks, even if such information was subsequently dismissed. You hereby represent, understand and expressly agree that We do not have control over or assume any responsibility for the quality, accuracy, or reliability of the information included in these checks.
BY AGREEING TO THESE TERMS AND USING OUR SITE, YOU AGREE TO ALLOW US TO PERFORM THESE CHECKS.
Care Seekers may agree with Driver Eligible Care Providers to provide Driving Services. Care Seeker agrees that any Driving Services will be limited to (1) using the Care Seekers vehicle; (2) any driving is limited to a five (5) mile radius of the Care Seekers home; and (3) any Driving Services must be used to facilitate general Services provided by the Care Provider.
To be considered a Driver Eligible Care Provider, Care Provider must comply with the following requirements;
If a Care Seeker wishes to utilize a Driver Eligible Care Provider with whom Care Seeker, Care Seeker must comply with the following requirements:
While operating Care Seeker’s vehicle, Care Provider will operate the vehicle in compliance with all applicable Laws, and will drive in a manner that is appropriate for the prevailing traffic, roadway, and environmental conditions. Seatbelts and car seats as requested by Care Seeker and/or required by law will be used by all vehicle occupants at all times.
Care Seeker certifies that Care Seeker’s vehicle is in safe and operable condition. Care Provider will inspect the Care Seeker’s vehicle to ensure it is safe to operate, and is not obligated to operate any vehicle that Care Provider determines, in his or her sole judgment, is not safe to operate.
Care Provider will not operate any vehicle if he or she has consumed any legal drugs or alcohol within a minimum of eight (8) hours prior to driving. In no event will Care Provider ever operate a vehicle while impaired.
We think links are convenient, and We sometimes provide links on his Website to third-party websites. If You use these links, You will leave this Website. We are not obligated to review any third-party websites that You link to from this Website, We do not control any of the third-party websites, and We are not responsible for any of the third-party websites (or the products, services, or content available through any of them). Thus, We do not endorse or make any representations about such third-party websites, any information, software, products, services, or materials found there or any results that may be obtained from using them. If You decide to access any of the third-party websites linked to from this Website, You do this entirely at Your own risk and You must follow the privacy policies and terms and conditions for those third-party websites. Certain areas of this Website may allow You to interact and/or conduct transactions with one or more third-party websites, and, if applicable, allow You to configure Your privacy settings in that third-party website account to permit Your activities on this Website to be shared with Your contacts in Your third-party site account.
To be clear, We authorize Your use of this Website only for Permitted Purposes. Any other use of this Website beyond the Permitted Purposes is prohibited and, therefore, constitutes unauthorized use of this Website. This is because as between You and Us, all rights in this Website remain Our property.
Unauthorized use of this Website may result in violation of various United States and international copyright laws. Because We prefer keeping this relationship drama-free, We want to give You examples of things to avoid. So, unless You have written permission from Us stating otherwise, You are not authorized to use this Website in any of the following ways (these are examples only and the list below is not a complete list of everything that You are not permitted to do):
Care Seekers and Care Providers who have been connected through Our Services are not permitted to transact for childcare services with each other outside of Our booking platform (a “Direct Relationship”), except where agreed to by Us in a written agreement (a “Transition Agreement”). Without limiting any other remedies we may have, We reserve the right to restrict access to Our Website and Our Services if You violate this provision. If a Care Seeker and a Care Provider have a mutual desire to transition to a Direct Relationship, they must, prior to engaging in a Direct Relationship, notify Us in writing and agree to a Transition Agreement with Us. You expressly acknowledge and agree that as part of the Transition Agreement, Care Seekers are required to pay a placement fee to Us, which We may in our sole discretion waive without affecting any other rights or remedies We have under these Terms.
You agree to hire attorneys to defend Us if You violate these Terms and that violation results in a problem for Us. You also agree to pay any damages that We may end up having to pay as a result of Your violation. You alone are responsible for any violation of these Terms by You. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You and, in such case, You agree to cooperate with Our defense of such claim.
"Poppy Care Company" and “Poppy” and “Poppy Certified” are trademarks that belong to Us. Other trademarks, names and logos on this Website are the property of their respective owners.
Unless otherwise specified in these Terms, all Materials, including the arrangement of them on this Website are Our sole property, Copyright © 2016 Poppy Care Company. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
We respect the intellectual property rights of others and encourage You to do the same. Accordingly, We have a policy of removing User Submissions that violate intellectual property rights of others, suspending access to this Website (or any portion thereof) to any user who uses this Website in violation of someone’s intellectual property rights, and/or terminating in appropriate circumstances the account of any user who uses the this Website in violation of someone’s intellectual property rights.
Pursuant to Title 17 of the United States Code, Section 512, We have implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If You believe Your copyright or other intellectual property right is being infringed by a user of this Website, please provide written notice to Our Agent for notice of claims of infringement:
Attn: DMCA Agent
2212 Queen Anne Ave N #282
Seattle, WA 98109
To be sure the matter is handled immediately, Your written notice must:
Unless the notice pertains to copyright or other intellectual property infringement, the Agent will be unable to address the listed concern.
We will notify You that We have removed or disabled access to copyright-protected material that You provided, if such removal is pursuant to a validly received DMCA take-down notice. In response, You may provide Our Agent with a written counter-notification that includes the following information:
We reserve the right, in Our sole discretion, to terminate the account or access of any user of this Website or Service who is the subject of repeated DMCA or other infringement notifications.
YOU ACKNOWLEDGE THAT WE ARE NOT RESPONSIBLE FOR CARE PROVIDERS’ OBLIGATIONS TO PROVIDE CHILDCARE SERVICES, AND WE ARE NOT RESPONSIBLE FOR CARE SEEKERS’ OBLIGATIONS TO PAY FOR THOSE CHILDCARE SERVICES. IN ADDITION, WE ARE NOT RESPONSIBLE FOR ANY ACTIONS OR INACTIONS OF CARE SEEKERS OR CARE PROVIDERS IN RELATION TO RECEIVING OR PROVIDING CHILDCARE SERVICES. THE PROVISION OF CHILDCARE SERVICES CREATES A DIRECT BUSINESS RELATIONSHIP BETWEEN CARE PROVIDERS AND CARE SEEKERS.
THIS WEBSITE IS PROVIDED "AS IS" AND "WITH ALL FAULTS" AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THIS WEBSITE IS WITH YOU.
WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO THIS WEBSITE, WHICH INCLUDES BUT IS NOT LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
THIS MEANS THAT WE DO NOT PROMISE YOU THAT THE WEBSITE IS FREE OF PROBLEMS. Without limiting the generality of the foregoing, We make no warranty that this Website will meet Your requirements or that this Website will be uninterrupted, timely, secure, or error free or that defects in this Website will be corrected. We make no warranty as to the results that may be obtained from the use of this Website or as to the accuracy or reliability of any information obtained through this Website. No advice or information, whether oral or written, obtained by You through this Website or from Us or Our subsidiaries/other affiliated companies shall create any warranty. We disclaim all equitable indemnities.
Any submissions by You to Us (e.g., comments, questions, suggestions, materials – collectively, “Feedback”) through any communication whatsoever (e.g., call, fax, email) will be treated as both non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and We are free to use, without any attribution or compensation to You, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that We are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and You have no right to compel such use, display, reproduction, or distribution.
DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER.
This Provision facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between You and Us. Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to You (such as Our licensors, suppliers, dealers or third-party vendors) whenever You also assert claims against Us in the same proceeding.
This Provision provides that all disputes between You and Us shall be resolved by binding arbitration because acceptance of These Terms constitutes a waiver of Your right to litigation claims and all opportunity to be heard by a judge or jury. We prefer this because We believe arbitration is less drama-filled than litigation. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees). You may, however, opt-out of this Provision which means You would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). EVERYONE AGREES THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
For all Disputes, whether pursued in court or arbitration, You must first give Us an opportunity to resolve the Dispute which is first done by emailing to Us at email@example.com the following information: (1)Your name, (2) Your address, (3) A written description of Your Claim, and (4) A description of the specific relief You seek. If We do not resolve the Dispute within 45 days after receiving Your notification, than You may pursue Your Dispute in arbitration. You may pursue Your dispute in a court only under the circumstances described below.
Notwithstanding the above, Your or We may choose to pursue a Dispute in court and not by arbitration if: (a) The dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt-out of this Provision by emailing Us at firstname.lastname@example.org the following information: (1) Your name; (2) Your address; (3) A clear statement that You do not wish to resolve disputes with Us through arbitration. Either way, We will not take any decision You make personally. In fact, We promise that Your decision to opt-out of this Arbitration Provision will have no adverse effect on Your relationship with Us. But, We do have to enforce the Opt-Out Deadline so keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid and You must pursue Your dispute in arbitration or small claims court.
If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either You or We may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because this Website and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or We may initiate arbitration in either Seattle, Washington or the federal judicial district that includes Your billing address. In the event that You select the latter, We may transfer the arbitration to Seattle, Washington so long as We agree to pay any additional fees or costs which the arbitrator determines You incur as a result of the transfer.
Payment of Arbitration Fees and Costs – So long as You place a request in writing prior to commencement of the arbitration, We will pay all arbitration fees and associated costs and expenses. But, You will still be responsible for all additional fees and costs that You incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if You provide notice and negotiate in good faith with Us as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that You are the prevailing party in the arbitration, You will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both You and We specifically agree to do so following initiation of the arbitration. If You choose to pursue Your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to You. Neither You, nor any other user of this Website can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
You understand and agree that by accepting this Provision in these Terms, You and We are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, You and We might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that You would have if You went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court.
This Provision shall survive the termination of Your account with Us or Our affiliates and Your discontinued use of this Website. Notwithstanding any provision in this Agreement to the contrary, We agree that if We make any change to this Provision (other than a change to the Notice Address), You may reject any such change and require Us to adhere to the language in this Provision if a dispute between Us arises.
We think direct communication resolves most issues – if We feel that You are not complying with these Terms, We will tell You. We will even provide You with recommended necessary corrective action(s) because We value this relationship.
However, certain violations of these Terms, as determined by Us, may require immediate termination of Your access to this Website without prior notice to You. The Federal Arbitration Act, Washington state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. Except for disputes subject to arbitration as described above, any disputes relating to these Terms or this Website will be heard in the courts located in King County, Washington. If any of these Terms are deemed inconsistent with applicable law, then such term(s) shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. By choosing not to enforce any of these Terms, We are not waiving Our rights. These Terms are the entire agreement between You and Us and, therefore, supersede all prior or contemporaneous negotiations, discussions or agreements between Everyone about this Website. The proprietary rights, disclaimer of warranties, representations made by You, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
If You have any questions about these Terms or otherwise need to contact Us for any reason, You can reach Us at email@example.com.