Terms of Service Agreement Last Updated Date: May 6, 2024 WELCOME! PLEASE READ THIS TERMS OF SERVICE AGREEMENT (THE “TERMS OF SERVICE” ) CAREFULLY. THIS WEBSITE AND ANY OTHER WEBSITES WHICH CONTAIN THESE TERMS OF SERVICE (COLLECTIVELY, THE “WEBSITE”), AND THE INFORMATION CONTAINED ON IT, ARE CONTROLLED BY TAILD SPORTS, INC. DBA CHALKBOARD, ITS AFFILIATES OR AGENTS (“CHALKBOARD,” “CHALKBOARD,” “WE,” “US,” OR “OUR” ). THESE TERMS OF SERVICE GOVERN THE USE OF THE WEBSITE AND APPLY TO ALL USERS VISITING THE WEBSITE OR ACCESSING THE SERVICES OR THE APPLICATION IN ANY WAY (EACH A “USER”). BY ACCESSING OR USING THE WEBSITE IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE, INCLUDING USE OF THE APPLICATION (DEFINED HEREIN) (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES” ), COMPLETING THE REGISTRATION PROCESS, AND/OR BROWSING THE WEBSITE OR DOWNLOADING CHALKBOARD'S MOBILE APPLICATION (THE “APPLICATION” ), YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF SERVICE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH CHALKBOARD, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF SERVICE PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE TERMS OF SERVICE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE THIS WEBSITE, APPLICATION, OR THE SERVICES. .
PLEASE BE AWARE THAT SECTION 17 OF THE AGREEMENT BELOW CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND CHALKBOARD HAVE AGAINST EACH OTHER WILL BE RESOLVED, INCLUDING WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE “LAST UPDATED DATE” AT THE TOP OF THESE TERMS. SECTION 17 CONTAINS, AMONG OTHER THINGS, AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND CHALKBOARD BE RESOLVED BY BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE AGREEMENT IN ACCORDANCE WITH THESE TERMS: (1) YOU AND CHALKBOARD WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST THE OTHER PARTY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND EACH OF US WAIVES OUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) EACH OF US IS WAIVING OUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
PLEASE BE AWARE THAT SECTION 2.6 (CHALKBOARD COMMUNICATIONS) OF THIS AGREEMENT, BELOW, CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL, TEXT MESSAGE, CALLS AND PUSH NOTIFICATION.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms” ) and such Supplemental Terms will either be listed in the Terms of Service or will be presented to you for your acceptance when you sign up to use the supplemental Service. For example, we may offer additional products or promotions that are subject to Supplemental Terms. If the Terms of Service are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Service and any applicable Supplemental Terms are referred to herein as the “Agreement.”
CHANGES TO THESE TERMS OF SERVICE. PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY CHALKBOARD IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Chalkboard will make a new copy of the Agreement available at the Website and within the Application and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website or within the Application. We will also update the “Last Updated” date at the top of the Agreement. If we make any material changes, and you have registered with us to create an Account (as defined in Section 3.1 (Registering Your Account) below) we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Agreement. Any changes to the Agreement will be effective immediately for new users of the Website, the Application and/ or Services and will be effective thirty (30) days after posting notice of such changes on the Website for existing Registered Users, provided that any material changes shall be effective for Registered Users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users (defined in Section 3.1 (Registering Your Account) below). Chalkboard may require you to provide consent to the updated Agreement in a specified manner before further use of the Website, the Application and/ or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website, the Application and/or the Services. Otherwise, your continued use of the Website, the Application and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS. USE OF THE SERVICES AND CHALKBOARD PROPERTIES. The Services. Chalkboard is a fantasy sports social messaging platform. We may make available certain other Services from time to time, which shall be subject to the Terms of Service and may be subject to Supplemental Terms. Any fantasy sports related game play, or any other games offered on the Chalkboard Properties (defined herein) shall be set forth in Chalkboard’s online Supplemental Terms. Chalkboard Properties. The Application, the Website, the Services, and the information and content available on the Website and in the Application and the Services (as these terms are defined herein) (each, a “Chalkboard Property” and collectively, the “Chalkboard Properties”) are protected by copyright laws throughout the world. Subject to the Agreement, Chalkboard grants you a limited license to reproduce portions of Chalkboard Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Chalkboard in a separate license, your right to use any and all Chalkboard Properties is subject to the Agreement. Application License. Subject to your compliance with the Agreement, Chalkboard grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Application accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the Application on a shared basis within your designated family group. Updates. You understand that Chalkboard Properties are evolving. As a result, Chalkboard may require you to accept updates to Chalkboard Properties that you have installed on your mobile device. You acknowledge and agree that Chalkboard may update Chalkboard Properties with or without notifying you. You may need to update third-party software from time to time in order to use Chalkboard Properties. Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Chalkboard Properties or any portion of Chalkboard Properties, including the Website; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Chalkboard Properties (including images, text, page layout or form) of Chalkboard; (c) you shall not use any metatags or other “hidden text” using Chalkboard's name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Chalkboard Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of Chalkboard Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Chalkboard Properties. Any future release, update or other addition to Chalkboard Properties shall be subject to the Agreement. Chalkboard, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Chalkboard Property terminates the licenses granted by Chalkboard pursuant to the Agreement Chalkboard Communications. BBy entering into this Agreement or using the Chalkboard Properties, you agree to receive communications from us, including via e-mail, text message, and push notifications. You agree that texts messages may be generated by automatic telephone dialing systems. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Chalkboard Properties, updates concerning new and existing features on the Chalkboard Properties, email communications concerning promotions run by us or our third-party partners, and news concerning Chalkboard and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF. IF YOU WISH TO OPT OUT OF ALL TEXTS OR CALLS FROM US (INCLUDING OPERATIONAL OR TRANSACTIONAL TEXTS OR CALLS), YOU CAN OPT OUT BY: EMAIL LEGAL@CHALKBOARD.IO TO PROVIDE NOTICE. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT YOUR USE OF THE CHALKBOARD PROPERTIES OR RELATED SERVICES. REGISTRATION. Registering Your Account. In order to access certain features of Chalkboard Properties you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a User who has registered an account on the Website ( “Account”), has a valid account on the third-party service (“Third-Party Service” ) through which the User has connected to the Website (each such account, a “Third-Party Account” ), or has an account with the provider of the Application for the User’s mobile device. Access Through a Third-Party Service. If you access the Chalkboard Properties through a Third-Party Service as part of the functionality of the Website, the Application and/or the Services, you may link your Account with Third-Party Accounts, by allowing Chalkboard to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Chalkboard and/or grant Chalkboard access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Chalkboard to pay any fees or making Chalkboard subject to any usage limitations imposed by such third-party service providers. By granting Chalkboard access to any Third-Party Accounts, you understand that Chalkboard may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through Chalkboard Properties (collectively, “Content”) that you have provided to and stored in your Third-Party Account ( “Third-Party Account Content”) so that it is available on and through Chalkboard Properties via your Account. Unless otherwise specified in the Agreement, all Third-Party Account Content shall be considered to be Your Content (as defined in Section 3.1 (Types of Content)) for all purposes of the Agreement. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on Chalkboard Properties. Please note that if a Third-Party Account or associated service becomes unavailable, or Chalkboard’s access to such Third-Party Account is terminated by the Third-Party Service provider, then Third-Party Account Content will no longer be available on and through Chalkboard Properties. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the Application. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND CHALKBOARD DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Chalkboard makes no effort to review any Third-Party Account Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Chalkboard is not responsible for any Third-Party Account Content. Registration Data. In registering an account on a Chalkboard Property, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) of legal age to form a binding contract; and (ii) not a person barred from using Chalkboard Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You may not share your Account or password with anyone, and you agree to (y) notify Chalkboard immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Chalkboard has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Chalkboard has the right to suspend or terminate your Account and refuse any and all current or future use of Chalkboard Properties (or any portion thereof). You agree not to create an Account using a false identity or false information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or Third-Party Service at any given time. Chalkboard reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use Chalkboard Properties if you have been previously removed by Chalkboard, or if you have been previously banned from any of Chalkboard Properties. Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Chalkboard. Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Chalkboard Properties, including but not limited to a mobile device that is suitable to connect with and use Chalkboard Properties in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Chalkboard Properties. RESPONSIBILITY FOR CONTENT. Types of Content. You acknowledge that all Content, including Chalkboard Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not Chalkboard, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available ( “Make Available”) through Chalkboard Properties ( “Your Content”), and that you and other Registered Users of Chalkboard Properties, and not Chalkboard, are similarly responsible for all Content that you and they Make Available through Chalkboard Properties ( “User Content”). No Obligation to Pre-Screen Content. You acknowledge that Chalkboard has no obligation to pre-screen Content (including, but not limited to, User Content), although Chalkboard reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Chalkboard pre-screens, refuses or removes any Content, you acknowledge that Chalkboard will do so for Chalkboard’s benefit, not yours. Without limiting the foregoing, Chalkboard shall have the right to remove any Content that violates the Agreement or is otherwise objectionable. Storage. Unless expressly agreed to by Chalkboard in writing elsewhere, Chalkboard has no obligation to store any of Your Content that you Make Available on Chalkboard Properties. Chalkboard has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Chalkboard Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Chalkboard retains the right to create reasonable limits on Chalkboard’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Chalkboard in its sole discretion. OWNERSHIP. Chalkboard Properties. Except with respect to Your Content and User Content, you agree that Chalkboard and its suppliers own all rights, title and interest in Chalkboard Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Chalkboard Properties. Trademarks. ChalkBoard and all related graphics, logos, service marks and trade names used on or in connection with any Chalkboard Properties or in connection with the Services are the trademarks of Chalkboard and may not be used without Chalkboard’s permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in Chalkboard Properties are the property of their respective owners. Your Content. Chalkboard does not claim ownership of Your Content. However, when you as a Registered User post or publish Your Content on or in Chalkboard Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content. License to Your Content. Subject to any applicable account settings that you select, you grant Chalkboard a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing Chalkboard Properties to you and to our other Registered Users. Please remember that other Registered Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of Chalkboard Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above . You agree that you, not Chalkboard, are responsible for all of Your Content that you Make Available on or in Chalkboard Properties. Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter as determined by Chalkboard in its sole discretion. You may not post or submit for print services a photograph of another person without that person’s permission. Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments, or any other area on Chalkboard Properties, you hereby expressly permit Chalkboard to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content. Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Chalkboard through its suggestion, feedback, wiki, forum, or similar pages ( “Feedback”) is at your own risk and that Chalkboard has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Chalkboard all right, title, or interest in or to any intellectual property rights in or relating to any Feedback thereof derived from your use of the Chalkboard Properties. All right, title, and interest in and to the Feedback are and will remain with Chalkboard. USER CONDUCT. As a condition of use, you agree not to use Chalkboard Properties for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) Make Available any Content on or through Chalkboard Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; (v) impersonates any person or entity, including any employee or representative of Chalkboard; (vi) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vii) promotes illegal or harmful activities; (viii) interferes with or attempt to interfere with the proper functioning of Chalkboard Properties or uses Chalkboard Properties in any way not expressly permitted by this Agreement; or (ix) attempts to engage in or engage in, any potentially harmful acts that are directed against Chalkboard Properties, including but not limited to violating or attempting to violate any security features of Chalkboard Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Chalkboard Properties, introducing viruses, worms, or similar harmful code into Chalkboard Properties, or interfering or attempting to interfere with use of Chalkboard Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” Chalkboard Properties. INVESTIGATIONS. Chalkboard may, but is not obligated to, monitor or review Chalkboard Properties and Content at any time. Without limiting the foregoing, Chalkboard shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Agreement or any applicable law. Although Chalkboard does not generally monitor user activity occurring in connection with Chalkboard Properties or Content, if Chalkboard becomes aware of any possible violations by you of any provision of the Agreement, Chalkboard reserves the right to investigate such violations, and Chalkboard may, at its sole discretion, immediately terminate your license to use Chalkboard Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you. INTERACTIONS WITH OTHER USERS. User Responsibility. You are solely responsible for your interactions with other Registered Users and any other parties with whom you interact; provided, however, that Chalkboard reserves the right, but has no obligation, to intercede in such disputes. You agree that Chalkboard will not be responsible for any liability incurred as the result of such interactions. At all times, you must conduct yourself in accordance with the Chalkboard Community Guidelines, provided at Chalkboard Guidelines. Content Provided by Other Users. Chalkboard Properties may contain User Content provided by other Registered Users. Chalkboard is not responsible for and does not control User Content. Chalkboard has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to, User Content. You use all User Content and interact with other Registered Users at your own risk. FEES AND PURCHASE TERMS. Chalkboard does not currently charge any fees for the Chalkboard Properties (including for access to the Services or the Application), but Chalkboard reserves the right to do so in the future, including but not limited to the right to establish, remove, and / or revise prices, fees, taxes, or surcharges for any or all services or goods obtained through the Chalkboard Properties at any time. In the event that we introduce any fees for accessing the Services or Application, we will do so in any applicable Supplemental Terms or shall update this Agreement in accordance with the procedure specified above. INDEMNIFICATION. You agree to indemnify and hold Chalkboard, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Chalkboard Party” and collectively, the “Chalkboard Parties” ) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any Chalkboard Property; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Registered Users; or (e) your violation of any applicable laws, rules or regulations. Chalkboard reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Chalkboard in asserting any available defenses. This provision does not require you to indemnify any of the Chalkboard Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to Chalkboard Properties. DISCLAIMER OF WARRANTIES AND CONDITIONS. As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF CHALKBOARD PROPERTIES IS AT YOUR SOLE RISK, AND CHALKBOARD PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. CHALKBOARD PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE. CHALKBOARD PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) CHALKBOARD PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF CHALKBOARD PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF CHALKBOARD PROPERTIES WILL BE ACCURATE OR RELIABLE.
ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH CHALKBOARD PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS CHALKBOARD PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. CHALKBOARD MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CHALKBOARD OR THROUGH CHALKBOARD PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
FROM TIME TO TIME, CHALKBOARD MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT CHALKBOARD’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT CHALKBOARD PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD CHALKBOARD PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF CHALKBOARD PROPERTIES. YOU UNDERSTAND THAT CHALKBOARD DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF CHALKBOARD PROPERTIES. CHALKBOARD MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. Third-Party Materials. As a part of Chalkboard Properties, you may have access to materials that are hosted by another party. For example, we may incorporate Third-Party Services into the Services or the Application, including without limitation sports scores and results that are provided by a third party. YOU AGREE THAT IT IS IMPOSSIBLE FOR CHALKBOARD TO MONITOR SUCH MATERIALS AND THAT YOU ACCESS THESE MATERIALS AT YOUR OWN RISK AND DO NOT RELY ON CHALKBOARD TO VERIFY THE ACCURACY OF SUCH MATERIALS. LIMITATION OF LIABILITY. Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL CHALKBOARD PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT CHALKBOARD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF CHALKBOARD PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE CHALKBOARD PROPERTIES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH CHALKBOARD PROPERTIES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON CHALKBOARD PROPERTIES; (e) ANY MATERIALS POSTED OR SHARED BY A THIRD PARTY ON CHALKBOARD PROPERTIES; OR (f) ANY OTHER MATTER RELATED TO CHALKBOARD PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A CHALKBOARD PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A CHALKBOARD PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A CHALKBOARD PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION. Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, CHALKBOARD PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO CHALKBOARD BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (b) $100; OR (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A CHALKBOARD PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A CHALKBOARD PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A CHALKBOARD PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION. User Content. EXCEPT FOR CHALKBOARD’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE CHALKBOARD’S PRIVACY POLICY, CHALKBOARD ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS. Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS. Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CHALKBOARD AND YOU. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. It is Chalkboard’s policy to terminate membership privileges of any Registered User who repeatedly infringes copyright upon prompt notification to Chalkboard by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on Chalkboard Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on Chalkboard Properties of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) 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. Contact information for Chalkboard’s Copyright Agent for notice of claims of copyright infringement is as follows: Copyright Manager, 169 Madison Ave #11063, New York NY 10016.
MONITORING AND ENFORCEMENT. Chalkboard reserves the right to: (a) remove or refuse to post any of your Content for any or no reason in our sole discretion; (b) take any action with respect to any of your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Chalkboard Properties or the public, or could create liability for the Chalkboard; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Chalkboard Properties; and/or (e) terminate or suspend your access to all or part of the Chalkboard Properties for any or no reason, including without limitation, any violation of this Agreement.
If Chalkboard becomes aware of any possible violations by you of the Agreement, Chalkboard reserves the right to investigate such violations. If, as a result of the investigation, Chalkboard believes that criminal activity has occurred, Chalkboard reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Chalkboard is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Chalkboard Properties, including Your Content, in Chalkboard’s possession in connection with your use of Chalkboard Properties, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Agreement, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Chalkboard, its Registered Users or the public, and all enforcement or other government officials, as Chalkboard in its sole discretion believes to be necessary or appropriate.
TERM AND TERMINATION. Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remains in full force and effect while you use Chalkboard Properties, unless terminated earlier in accordance with the Agreement. Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used Chalkboard Properties or (b) the date you accepted the Agreement, and will remain in full force and effect while you use any Chalkboard Properties, unless earlier terminated in accordance with the Agreement. Termination of Services by Chalkboard. If you have materially breached any provision of the Agreement, or if Chalkboard is required to do so by law (e.g., where the provision of the Website, the Application, or the Services is, or becomes, unlawful), Chalkboard has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Chalkboard’s sole discretion and that Chalkboard shall not be liable to you or any third party for any termination of your Account. Termination of Services by You. If you want to terminate the Services provided by Chalkboard, you may do so by (a) notifying Chalkboard at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Chalkboard’s address set forth below. Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Chalkboard will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability. No Subsequent Registration. If your registration(s) with, or ability to access, Chalkboard Properties or any other Chalkboard community, is discontinued by Chalkboard due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access Chalkboard Properties or any Chalkboard community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Chalkboard Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Chalkboard reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you. INTERNATIONAL USERS. Chalkboard Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Chalkboard intends to announce such Services or Content in your country. Chalkboard Properties are controlled and offered by Chalkboard from its facilities in the United States of America. Chalkboard makes no representations that Chalkboard Properties are appropriate or available for use in other locations. Those who access or use Chalkboard Properties from other countries do so at their own volition and are responsible for compliance with local law. ARBITRATION AGREEMENT. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with us and limits the manner in which you can seek relief from us. Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Chalkboard agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Services, or this Agreement and prior versions of this Agreement, including claims and disputes that arose between us before the effective date of this Agreement (each, a “ Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and Chalkboard may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Chalkboard may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement. Informal Dispute Resolution. There might be instances when a Dispute arises between you and Chalkboard. If that occurs, Chalkboard is committed to working with you to reach a reasonable resolution. You and Chalkboard agree that good faith informal efforts to resolve Disputes can result in a prompt, low-cost and mutually beneficial outcome. You and Chalkboard therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“ Informal Dispute Resolution Conference”). You and Chalkboard further agree that either party may seek urgent injunctive relief from a court, if necessary, prior to an Informal Dispute Resolution Conference. If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference. The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice ”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Chalkboard that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to legal@chalkboard.io or certified mail to our offices located at 169 Madison Ave #11063, New York NY 10016. The Notice must include: (1) your name, telephone number, mailing address, e-mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e-mail address of your counsel, if any; and (3) a description of your Dispute. The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree. Multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section. Waiver of Jury Trial. YOU AND CHALKBOARD HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Chalkboard are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the section titled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review. Waiver of Class and Other Non-Individualized Relief. YOU AND CHALKBOARD AGREE THAT, EXCEPT AS SPECIFIED IN THE SECTION ENTITLED “BATCH ARBITRATION,” EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the Section entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this Section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Chalkboard agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of New York. All other Disputes shall be arbitrated or litigated in small claims court in accordance with this Section 17. This section does not prevent you or Chalkboard from participating in a class-wide settlement of claims. Rules and Forum. This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Chalkboard agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“ AAA”), in accordance with the Consumer Arbitration Rules (the “ AAA Rules ”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf . A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request ”). The Request must include: (1) the name, telephone number, mailing address, e-mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration. If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. Unless you and Chalkboard otherwise agree, or the Batch Arbitration process discussed in the Section entitled “Batch Arbitration” is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules. You and Chalkboard agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential. Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of New York and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under the Section entitled “Batch Arbitration” is triggered, the AAA will appoint the arbitrator for each batch. Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the Section entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the Section entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such Section entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the Section entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the Section entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction. Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Chalkboard need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs. Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Chalkboard agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Chalkboard by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“ Batch Arbitration”). All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator ”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Chalkboard. You and Chalkboard agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to out to: 169 Madison Ave #11063, New York NY 10016, and via e-mail to: legal@chalkboard.io within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us. Invalidity, Expiration. Except as provided in the Section entitled “Waiver of Class or Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Chalkboard as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Chalkboard makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days of such change becoming effective by writing to Chalkboard at 169 Madison Ave #11063, New York NY 10016 and e-mailing legal@chalkboard.io , your continued use of the Chalkboard Services, including the acceptance of products and services offered on the Services following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services or of the Chalkboard Services, or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Chalkboard will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of laws provisions thereof, and the United States of America, including the Federal Arbitration Act. Further, for any action arising out of or related to this Agreement and to the extent the provisions in this Section 17 do not apply, you consent to the exclusive jurisdiction and venue of the state and federal courts located in New York County, New York. THIRD-PARTY SERVICES. Third-Party Websites, Applications and Ads. Chalkboard Properties may contain links to third-party websites ( “Third-Party Websites”), applications ( “Third-Party Applications”) and advertisements for third parties ( “Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left Chalkboard Properties and you are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of Chalkboard. Chalkboard is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. Chalkboard provides these Third-Party Websites, Third-Party Applications and Third-Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or any product or service provided in connection therewith. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Website, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, Third-Party Applications, or Third-Party Ads, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party. App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Agreement is between you and Chalkboard and not with the App Store. Chalkboard, not the App Store, is solely responsible for Chalkboard Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Chalkboard Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Chalkboard Property, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it. Accessing and Downloading the Application from the Apple App Store. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store: You acknowledge and agree that (i) the Agreement is concluded between you and Chalkboard only, and not Apple, and (ii) Chalkboard, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Chalkboard and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Chalkboard.
You and Chalkboard acknowledge that, as between Chalkboard and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and Chalkboard acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Chalkboard and Apple, Chalkboard, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
You and Chalkboard acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
GENERAL PROVISIONS. Electronic Communications. The communications between you and Chalkboard may take place via electronic means, whether you visit Chalkboard Properties or send Chalkboard e-mails, or whether Chalkboard posts notices on Chalkboard Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Chalkboard in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Chalkboard provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. ( “E-Sign”). Release. You hereby release Chalkboard Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Chalkboard Properties, including but not limited to, any interactions with or conduct of other Registered Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of Chalkboard Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Chalkboard Party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Chalkboard Properties. Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Chalkboard’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Force Majeure. Chalkboard shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Chalkboard Properties, please contact us at: support@chalkboard.io We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation. Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Chalkboard agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in New York, New York. Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT. Notice.Where Chalkboard requires that you provide an e-mail address, you are responsible for providing Chalkboard with your most current e-mail address. In the event that the last email address you provided to Chalkboard is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Chalkboard’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Chalkboard at the following address: 69 Madison Ave #11063, New York NY 10016. Such notice shall be deemed given when received by Chalkboard by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect. Export Control. You may not use, export, import, or transfer Chalkboard Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Chalkboard Properties, and any other applicable laws. In particular, but without limitation, Chalkboard Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Chalkboard Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Chalkboard Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Chalkboard are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Chalkboard products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations. Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210. Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. 
