Terms of Service
Sutherland Consulting Group, Inc. Terms of Service last updated April 23, 2023
Terms of Service
THIS TERMS OF SERVICE AGREEMENT (“Terms”) GOVERNS USER’S USE OF AND PARTICIPATION IN ANY FUNCTION OF THE SITE ANDSERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. YOU ARE ACCEPTINGTHIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) ACKNOWLEDGINGACCEPTANCE OF THIS AGREEMENT IN A SEPARATE DOCUMENT REFERENCING ORINCORPORATING THE TERMS OF THIS AGREEMENT AND/OR (3) CREATING AN ACCOUNT FORTHE SERVICES, USER AGREES TO THE TERMS OF THIS AGREEMENT.THE INDIVIDUALACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF THE COMPANY OR ORGANIZATION,THUS INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY ANDITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “USER”SHALL REFER TO BOTH (I) SUCH ENTITY AND ITS AFFILIATES AND (II) THE INDIVIDUALSIGNING UP FOR THE ACCOUNT AND ALL INDIVIDUALS WITH ACCESS TO THE ORGANIZATIONSACCOUNT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCHAUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUALMUST NOT ACCEPT THIS AGREEMENT AND PROCEED WITH ACCOUNT REGISTRATION. It is effective between any User (“User”, “you” or “you”) and ErateSync (“ErateSync” or “we”) as of the date of User’s accepting these Terms.
PLEASE READ:THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER(SECTION 15). READ CAREFULLY, INCLUDING USER’S RIGHT, IF APPLICABLE, TO OPT OUTOF ARBITRATION. EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 15BELOW, OR WHERE PROHIBITED BY LAW, BY ENTERING INTO THESE TERMS USEREXPRESSLYAGREES THAT DISPUTES BETWEEN USER AND ERATESYNC WILL BE RESOLVED BY BINDING,INDIVIDUAL ARBITRATION, AND USER HEREBY WAIVES USER’S RIGHT TO PARTICIPATE IN ACLASS ACTION LAWSUIT OR CLASS-WIDEARBITRATION.
An in-depth description of the Services together with the benefits and functionality are available on our Site located here www.eratesync.com (“Site”). ErateSync will provide the Services with reasonable care and skill in accordance with the description set out on the Site. ErateSync reserves the right to vary or withdraw any of the Services described on the Site without notice. ErateSync expects User to confirm that the Services User is purchasing will meet User’s needs. ErateSync doesn’t make any guarantee to User that User will obtain a particular result or maintain proper records, funding and compliance for the E-Rate program from User’s purchase of the Services. User acknowledges and agrees that the success of the Services and the provision of Services and deliverables are fully dependent upon User’s accurate participation and provision of information. ErateSync shall not be responsible for the way in which the User uses any output from the Service.
“Services” means the provision of this software as a service that allows E-rate entities to manage funding and associated records and maintain compliance with the E-rate Program’s record retention rules. ErateSync is designed for use by schools, public libraries, and government entities that are registered with the FCC’s E-rate program.
2. User Responsibilities
The use of our Services in conjunctionwith other tools or resources in furtherance of any of the unacceptable usesdescribed herein is also prohibited. User agrees to strictly abide by thefollowing:
a) You may not use the Services to commit an unlawful activity; use the Services for activities where use or failure of the Services could lead to physical damage, death, mental harm, or personal injury.
(b) You may not provide any person under the age of 13 with access to the Services.
(c) You may not purchase, use, or access the Services for the purpose of building a competitive product or service or for any other competitive purposes.
(d) You may not misuse our Services by interfering with their normal operation, or attempting to access them using a method other than through the interfaces and instructions that we provide.
(e) You may not circumvent or attempt to circumvent any limitations that ErateSync imposes on your account (such as by opening up a new account for the same organization or same E-rate entity number).
(f) Unless authorized byErateSync in writing, you may not probe, scan, or test the vulnerability orsecurity of the Services or any ErateSync system or network.
(g) Unless authorized byErateSync in writing, you may not use any automated system or software toextract or scrape data from the websites or other interfaces through which wemake our Services available.
(h) You may not deny others access to, or reverse engineer, the Services, or assist anyone else to do so, to the extent such restriction is permitted by law.
(i) You may not store or transmit any viruses, malware, or other types of malicious software, or links to such software, through the Services.
(j) Unless authorized by ErateSync in writing, you may not resell or lease the Services.
(k) If your use of the Services requires you to comply with industry-specific regulations and FCC regulations applicable to such use, you will be solely responsible for such compliance, unless ErateSync has agreed with you in writing otherwise. You maynot use the Services in a way that would subject ErateSync to those industry-specific regulations without obtaining ErateSync’s prior written agreement.
3. User Account
User may only allow access to its account by other individuals who have been given authority on behalf of User. User is, at minimum, is required to provide the organization name, organization E-rate entity number, payment information and a contact person’s name, email and phone. User is also responsible for uploading and maintaining complete and correct documentation as it relates to the E-rate program as it pertains to User’s use of the Services. User shall at all times, on reasonable request by ErateSync, provide User information to the extent required by ErateSync to perform the Services; and shall respond to other reasonable requests and decisions required of the User for the effective performance of the Services.
Keep Your Password Secure.
If you have been issued an account by ErateSync in connection with your use of the Services, you are responsible for safeguarding your password and any other credentials used to access that account. You, and not ErateSync, are responsible for any activity occurring in your account (other than activity that ErateSync is directly responsible for which is not performed in accordance with your instructions),whether or not you authorized that activity. If you become aware of any unauthorized access to your account, you should notify ErateSync immediately .Accounts may not be shared between organizations.
Keep Your Details Accurate.
ErateSync occasionally sends notices to the email address registered with your account. You must keep your email address and, where applicable, your contact details and payment details associated with your account current and accurate.
You own Your Data. You are solely responsible for maintaining and protecting Your Data. ErateSync shall not be liable for any loss or corruption of Your Data, or for any costs or expenses associated with backing up or restoring any of Your Data.
The ErateSync Services allows You to share Your Data with others. By doing so, You are enabling others to copy, distribute, make public, modify, delete or otherwise misuse Your Data, among other things. Additionally, if You choose to provide access to Your Data to another person, that person may provide unauthorized access to others. You agree that ErateSync has no responsibility for anything that any person with whom You share Your Data does with Your Data, including making it available to others.
4. Errors and Inaccuracies
We always strive to provide complete, accurate, up-to-date information on our Site. Unfortunately, despite those efforts, human or technological errors may occur. The Site or Services may contain typographical mistakes, inaccuracies, or omissions, some of which may relate to pricing and some information may not be complete or current. We reserve the right to correct any errors, inaccuracies or omissions, including after an order has been submitted and whether or not the order has been confirmed and your payment method charged, and to change or update information at any time without prior notice.
In order to purchase the Services User must register for an account with us via the Site. Service subscription fees will either be billed direct via your payment information on file or invoiced (you will select your preference upon account setup). Electronic payment scan be made either through BrainTree or PayPal. You will receive an initial 30-day trial upon account activation. Invoices will be sent from ErateSync with net 30-day payment terms. Credit card payments are processed through BrainTree or Paypal at the end of the 30-day trial, and annually moving forward. A receipt will be sent to User by email from ErateSync confirming payment. Please note that if User doesn’t provide accurate details(including type of card and number), if User’s credit card company does not authorize payment or if User’s organization does not authorize payment of invoice, User’s registration will be deemed void. ErateSync will not accept any liability for costs incurred as a result of orders deemed void in this manner. ONCE A PAYMENT IS CHARGE THERE WILL BE NO REFUNDS OF ANY KIND FOR ANY REASON.
All payments are due in U.S. Dollars at the time of purchase. All taxes, duties, levies, imposts, fines or similar governmental assessments including sales and use taxes, value-added taxes (“VAT”), goods and services taxes (“GST”),excise, business, service, and similar transactional taxes imposed by any jurisdiction and the interest and penalties thereon (collectively, “Taxes”), if any, are charged at the applicable rate depending on the Service and/or User. If User is a tax-exempt entity or claims exemption from any Taxes under these Terms, User shall provide a certificate upon execution of these Terms and, after receipt of valid evidence of exemption, ErateSync shall not charge User any Taxes from which it is exempt. If ErateSync is required to invoice or collect Taxes associated with User’s purchase of, payment for, access to or use of the Services, ErateSync will issue an invoice to User including the amount of those Taxes, itemized where required by law.
Although availability maybe indicated on our Site, we cannot guarantee we are available within a given timeframe to provide the Services. We reserve the right, without liability orprior notice, to revise, discontinue or cease to make available any or all Services.
Accuracy of Billing and Account Information
We reserve the right to refuse any order you place with us. We reserve the right to prohibit orders that, in our sole judgment, appear fraudulent or duplicative.In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made.
You agree to provide current, complete and accurate purchase and account information for all purchases made on our Site. You agree to promptly update billing and other information, including your email address and payment processing information, so that we can complete your transactions and contact you as needed.
Notice of User’s intent to terminate its account must be made directly on the Site or by mailing us at firstname.lastname@example.org subject to the following terms:
·User’s whose cancellation request is received at any time before the end of the initial 30-day trial period will not be charged.
· NO REFUNDS OF ANY KIND OR FOR ANYREASON WILL BE PROVIDED AFTER THE INITIAL 30-DAY TRIAL PERIOD. It is very important you cancel your account or email us with the intent to cancel your account prior to the next billing cycle.
·Please allow up to ten (10) days for termination to take effect.
7. Termand Termination
To the fullest extent permitted by applicable law, ErateSync reserves the right, without notice and in our sole discretion, to terminate your license to use the Services and to block or prevent your future access to and use of the Services, including where we reasonably consider that: (a) your use of the Site or Services violates these Terms or applicable law; (b) you fraudulently use or misuse the Services; or (c) we are unable to continue providing the Site or Services to you due to technical or legitimate business reasons. To the fullest extent permitted by applicable law, your sole remedy with respect to any dissatisfaction with (i)the Site or Services, (ii) any term of these Terms, (iii) any policy or practice of ErateSync in operating the Site or Services, or (iv) any content or information transmitted through the Services, is to discontinue use of any and all parts of the Site and Services.
8. Effectof Termination
Upontermination of these Terms for any reason: all obligations of the parties shallterminate and all licenses granted by ErateSync will terminate, except that thefollowing Sections will survive termination:Payments (Section 5), Cancellations(Section 6), Effect of Termination (Section 8), Intellectual Property (Section9), Confidentiality (Section 10), Disclaimer and Warranty (Section 11), Limitationof Liability (Section 12), Indemnification (Section 13), Dispute Resolution(Section 15), Governing Law (Section 21), and all general provisions.Terminationof these Terms by a party will not act as a waiver of any breach of these Termsand will not act as a release of liability under these Terms. Furthermore, Userwill have access to download any content uploaded to Entity’s account for a3-month period, beginning on the date of termination. After the 3 months, wewill delete all information from the account.
(A) ErateSyncIntellectual Property
All data, text, images, logos, photographs,advertisements, graphics, press releases, audio, video, documents, trademarks,copyrights and other information and content available on or through the Site orServices (“Content”), is the property of ErateSync or itslicensors. The Content is protected by copyright, trademark, trade dress and/orother intellectual property laws and you acknowledge and agree that we retainall right, title and interest in and to the Content.
(B) Feedback and SupportChat
ErateSyncencourages User to ask support related questions, provide suggestions,proposals, ideas, recommendations or other feedback regarding improvements to ErateSync’sServices. To the extent User provides such feedback, whether it be via ourSupport Chat feature, email or other form of communication, User grants to ErateSynca royalty-free, fully paid, sub-licensable, transferable, non-exclusive,irrevocable, perpetual, worldwide right and license to make, use, sell, offerfor sale, import and otherwise exploit feedback (including by incorporation ofsuch feedback into the Content) without restriction.
(C) License to Use theService
Subjectto User’s compliance with these Terms and solely for so long as User ispermitted by ErateSync to access and use the Service, ErateSync grants User alimited, non-transferable, non-exclusive, revocable right and license to accessand use the Service for User’s own personal, non-commercial purposes, a rightwhich may not be assigned or sublicensed to anyone. This license will remain ineffect unless and until User violatesthese Terms or this license is terminatedby User or ErateSync.
Exceptas expressly permitted in writing by an authorized representative of ErateSync,User will not reproduce, redistribute, sell, transfer, create derivative worksfrom, decompile, reverse engineer, or disassemble the Service, nor will Usertake any measures to interfere with or damage the Service. Unless otherwisespecified, copying or modifying any Contentor using Content for any purposeother than User’s personal, non-commercial use of the Service, including use ofany such Content unrelated to the E-rate program, is strictly prohibited. Allrights not expressly granted by ErateSync in these Terms are reserved.
Usershall not (and shall not permit others to) do the following with respect to theContent: (i) license, sub-license, sell, re-sell, rent, lease, transfer,distribute or time share or otherwise make any of it available for access bythird parties except as otherwise expressly provided in these Terms; (ii)access it for the purpose of developing or operating products or servicesintended to be offered to third parties in competition with ErateSync; (iii)disassemble, reverse engineer or decompile it; (iv) copy, create derivativeworks based on or otherwise modify it except as permitted in these Terms;(v) remove or modify a copyright or other proprietary rights notice in it;(vi) use it to reproduce, distribute, display, transmit or use materialprotected by copyright or other intellectual property right (including therights of publicity or privacy) without first obtaining the permission of theowner.
“Confidential Information” means allinformation disclosed by a party to the other party, whether orally or inwriting, that is designated as confidential or that reasonably should beunderstood to be confidential given the nature of the information and thecircumstances of disclosure. The recipient of Confidential Information shall:(i) at all times protect it from unauthorized disclosure with the same degreeof care that it uses to protect its own confidential information, and in noevent using less than reasonable care; and (ii) not use it except to the extentnecessary to exercise rights or fulfill obligations under these Terms. Eachparty shall limit the disclosure of the other party’s Confidential Informationto those of its employees and contractors with a need to access suchConfidential Information for a party’s exercise of its rights and obligationsunder these Terms, provided that all such employees and contractors are subjectto binding disclosure and use restrictions at least as protective as those setforth herein. Each party’s obligations set forth in this Section shall remainin effect during the term and three (3) years after termination of these Terms.The receiving party shall, at the disclosing party’s request or upontermination of these Terms, return all originals, copies, reproductions andsummaries of Confidential Information and other tangible materials and devicesprovided to the receiving party as Confidential Information, or at thedisclosing party's option, certify destruction of the same. A party may disclosethe disclosing party’s Confidential Information to a court or governmental bodypursuant to a valid court order, law, subpoena or regulation, provided that thereceiving party: (a) promptly notifies the disclosing party of suchrequirement as far in advance as possible to the extent advanced notice islawful; and (b) provides reasonable assistance to the disclosing party inany lawful efforts by the disclosing party to resist or limit the disclosure ofsuch Confidential Information.The parties agree that the receiving party’sdisclosure of Confidential Information except as provided herein may result inirreparable injury for which a remedy in money damages may be inadequate. Theparties further agree that in the event of such disclosure or threatened disclosure,the disclosing party may be entitled to seek an injunction to prevent thebreach or threatened breach without the necessity of proving irreparable injuryor the inadequacy of money damages, in addition to remedies otherwise availableto the disclosing party at law or in equity.
11. Disclaimer and Warranty
TheSite and Service are provided “AS IS”. ErateSync provides the Services on an“AS IS” and “AS AVAILABLE” basis. Any participation in or use of the Servicesis at User’s sole risk. TO THE FULL EXTENT PERMITTED BY LAW, ERATESYNC MAKES NOWARRANTY OF ANY KIND, IMPLIED OR EXPRESS, INCLUDING, BUT NOT LIMITED TO IMPLIEDWARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,NON-INFRINGEMENT, QUIET ENJOYMENT AND ANY OTHER WARRANTY THAT MIGHT ARISE UNDERANY LAW, AS TO THE SERVICE’S ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANYPURPOSE, THAT USER WILL SUCCESSFULLY MAINTAIN COMPLIANCE WITH THE E-RATEPROGRAM, OR THAT ANY PARTICULAR LEVEL OF KNOWLEDGE OR USEFULNESS WILL BEATTAINED BY USER.
Withoutlimiting the foregoing, ErateSync makes no warranties or representations thatthe provision of any content online, or the Services will always be availableor be uninterrupted, timely or error free, that defects will be corrected orthat such content is secure or free from bugs, viruses, errors and omissions,that the Services will meet User’s personal or professional needs.
To the extent that another party may have access to or view content on User’saccount or throughUser’s device, Useris solely responsible for informing suchparty of all disclaimers and warnings in these Terms. TO THE EXTENT ANYDISCLAIMER OR LIMITATION OF LIABILITY DOES NOT APPLY, TO THE FULLEST EXTENTPERMITTED BY LAW, ALL APPLICABLE EXPRESS, IMPLIED, AND STATUTORY WARRANTIESWILL BE LIMITED IN DURATION TO A PERIOD OF 30 DAYS AFTER THE DATE ON WHICH USERFIRST USED THE SERVICES, AND NO WARRANTIES SHALL APPLY AFTER SUCH PERIOD.
Useracknowledges that ErateSync may discontinue the Services at any time in itssole discretion.ErateSync reserves the right to modify the Service, including,but not limited to updating, adding to, enhancing, modifying, removing oraltering any content or features of the Service, at any time, in its solediscretion. User is responsible for providing its own access (e.g., computer,mobile device, Internet connection, etc.) to the Service.
12. Limitationof Liability
IN NO EVENT WILL ERATESYNC, INCLUDING OUR AFFILIATES, SUBSIDIARIES,PARENTS, SUCCESSORS AND ASSIGNS, AND EACH OF OUR RESPECTIVE OFFICERS,DIRECTORS, EMPLOYEES, AGENTS, OR SHAREHOLDERS (COLLECTIVELY “ERATESYNC” FORPURPOSES OF THIS SECTION), BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL,EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING DAMAGES FORDELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANYINFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE SITE, SERVICEINTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES)ARISING OUT OF OR IN CONNECTION WITH THE SITE, A PURCHASE OF SERVICES, OR THESETERMS, HOWEVER ARISING INCLUDING NEGLIGENCE, EVEN IF WE OR OUR AGENTS ORREPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAINDAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS,EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONALRIGHTS.
User will defend, indemnify, and holdErateSync including our affiliates, subsidiaries, parents, successors andassigns, and each of our respective officers, directors, employees, agents, orshareholders harmless from any claims, actions, suits, losses, costs,liabilities and expenses (including reasonable attorneys’ fees) relating to orarising out of your use of the Site and Services, including: (1) your breach ofthese Terms or the documents it incorporates by reference; (2) your violationof any law or the rights of a third party as a result of your own interactionwith such third party; (3) your use of any Services purchased through the Site;(5) any other activities in connection with the Site. This indemnity shall beapplicable without regard to the negligence of any party, including anyindemnified person.
In case of force majeure, we are not obliged to fulfil ourobligations. In that case we may either suspend our obligations for theduration of the state of force majeure or definitely repudiate these Terms.
Events of force majeureare all circumstances external to our will and control that render the respectof our obligations completely or partly impossible. Such events include, butare not limited to, any Act of God, epidemic, pandemic,terrorism, war, political insurgence, insurrection, riot, civil unrest, act ofcivil or military authority, uprising, earthquake, flood, disruption of energy supplies ortelecommunication networks or communication systems and/or the temporarydown-time of the Site, inaccessible Services, or any other naturalor man-made eventuality outside of our control, which causes the termination ofan agreement or contract entered into, nor which could have been reasonablyforeseen. In the case of a forcemajeure event, you are responsible for filing claims with the properthird-party entities.
Inthe event of any dispute, controversy or claim between the parties heretoarising out of or relating to these Terms, the parties shall first seek toresolve the dispute in good faith through informal discussion. User agrees thatbefore initiating any dispute or arbitration proceeding, the parties willattempt to negotiate an informal resolution of any dispute. To begin thisprocess, before initiating any arbitration proceeding, User must send a writtennotice of dispute (“Dispute Notice”) by certified mail to 2400 N. LincolnAvenue Altadena, CA 91001. In the Dispute Notice, User must describe the natureand basis of the dispute and the relief User is seeking. If the parties areunable to resolve the dispute within 30 days after ErateSync’s receipt of theDispute Notice, then User or ErateSync may initiate arbitration proceedingsusing the below procedure or small claims court.
Mandatory Binding Arbitration.Thearbitration shall be administered by JAMS under its Comprehensive Rules ineffect at the time the arbitration demand is made. The current rules, effectiveJuly 1, 2014, can be found here: http://www.jamsadr.com/rules-comprehensive-arbitration/.JAMS arbitration rules can be foundhere: http://www.jamsadr.com/rules-clauses/. In the event of any conflictbetween the rules and these Terms, these Terms shall apply. The parties agreeto submit to the jurisdiction of a single neutral arbitrator selected inaccordance with the JAMS Comprehensive Rules.The language of the arbitrationshall be English. The arbitrator may grant injunctions or other relief in suchdispute or controversy. The arbitrator’s decision shall be final, conclusiveand binding on the parties to the arbitration. Judgment may be entered on thearbitrator’s decision in any court of competent jurisdiction. The parties agreethat the arbitrator shall have exclusive authority to decide all issuesrelating to the interpretation, applicability, enforceability and scope of thisarbitration agreement. During the arbitration, both User and ErateSync may takeone deposition of the opposing party, limited to 4 hours. If the parties cannotagree on a time and location for a deposition, the arbitrator will resolve anyscheduling disputes.Notwithstanding the foregoing, the arbitrator shall nothave jurisdiction over any dispute relating to ownership, infringement ormisappropriation of a party’s intellectual property or confidentiality rightsunless the parties specifically so agree in writing in such matter, and eitherparty may (after attempting informal resolution as provided above) submit anysuch dispute to any court in accordance with “Governing Law” section below, andmay apply to any such court for injunctive relief in connection therewith. Thearbitration will be held in the United States county where User lives or works,Los Angeles, California, or any other location User and ErateSync mutually agreedupon in writing.
CLASS ACTION WAIVER.TO THE EXTENT PERMISSIBLE BY LAW, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES'INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTEDCLASS, COLLECTIVE ACTION, OR NON-PAGA REPRESENTATIVE PROCEEDING (COLLECTIVELY“CLASS ACTION WAIVER”). THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONEPERSON'S CLAIMS OR ENGAGE IN ANY CLASS ARBITRATION. USER AGREES THAT, BYENTERING INTO THESE TERMS, USER AND ERATESYNCARE EACH WAIVING THE RIGHT TO ATRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.Further, if the parties’dispute is resolved through arbitration, neither JAMS nor the arbitrator maynot consolidate another person’s claims with User’s claims or otherwise presideover any form of a representative or class proceeding for any purpose. If thisspecific provision is found to be unenforceable, then the entirety of thisSection 16 shall be null and void.
Inany lawsuit in which (1) the complaint is filed as a class action, collectiveaction or non-PAGA representative action; and (2) the civil court of competentjurisdiction in which the complaint was filed finds the Class Action Waiver isunenforceable (and such finding is confirmed by appellate review if review issought), the Class Action Waiver shall be severable from these Terms and insuch instances, the class action, collective action and/or non-PAGArepresentative action must be litigated in a civil court of competentjurisdiction and not as a class, collective or non-PAGA representativearbitration.
PAGAWAIVER: TO THE EXTENT PERMISSIBLE BY LAW, THERE WILL BE NO RIGHT OR AUTHORITYFOR ANY DISPUTE TO BE BROUGHT, HEARD, OR ARBITRATED ON A GROUP BASIS OR IN ANYACTION IN WHICH A PARTY SEEKS TO REPRESENT OTHER INDIVIDUAL(S) IN A PRIVATEATTORNEY GENERAL ACTION (“PAGA WAIVER”). PAGA CLAIMS MAY ONLY BE ARBITRATED ONAN INDIVIDUAL BASIS.
Inany lawsuit in which (1) the complaint is filed as a private attorney generalaction seeking to represent any individual(s) other than the named plaintiff;and (2) the civil court of competent jurisdiction in which the complaint wasfiled finds the PAGA Waiver is unenforceable (and such finding is confirmed byappellate review if review is sought), the PAGA Waiver shall be severable from theseTerms and in such instances, the private attorney general action must belitigated in a civil court of competent jurisdiction and not as a privateattorney general arbitration.
Notwithstandingany other clause contained in these Terms, any claim that all or part of theClass Action Waiver or PAGA Waiver is invalid, unenforceable, unconscionable,void or voidable may be determined only by a court of competent jurisdictionand not by an arbitrator. The Class Action Waiver and PAGA Waiver shall beseverable when a dispute is filed as an individual action and severance isnecessary to ensure that the individual action proceeds in arbitration.
Opt-out of Mandatory Arbitration.User may seek to resolve a dispute in small claims court if it qualifies. Usermay decline this mandatory arbitration provision within 30 days of accepting theseTermsby emailing ErateSyncatsupport@eratesync.comand indicating User’s intentto opt-out of the arbitration provision. Please include User’s contact details.Note that opting out of this arbitration provision does not affect any otherpart of these terms and these Terms, including the provisions regardingcontrolling law or in which courts any disputes must be brought.
Arbitration Costs.Payment of all filing, administration and arbitrator fees will be governed bythe JAMS Rules. If User asserts a claim against ErateSync, User will beresponsible for paying a $250 consumer filing fee. ErateSync will pay forreasonable arbitration fees where: (a) the claim for damages does not exceed$10,000, and (b) the claims are not frivolous under Federal Rule of CivilProcedure 11(b). ErateSync will not seek attorneys’ fees or costs inarbitration unless the arbitrator determines the claims are frivolous underFederal Rule of Civil Procedure 11(b).
Severability.Withthe exception of any of the provisions in this Section, if an arbitrator orcourt of competent jurisdiction decides that any part of these terms is invalidor unenforceable, the other parts of these terms will still apply.
Effect of Changes on Arbitration.Notwithstanding the provisions of Section 21(Changes To Terms And Conditions),if ErateSync changes any of the terms of this Section 16 after the date Userfirst accepted these Terms(or accepted any subsequent changes to these Terms), Usermay reject any such change by sending ErateSync written notice within 30 daysof the date such change became effective, as indicated in the “Last Updated”date above or the date of ErateSync’s email to User notifying User of suchchange. By rejecting any change, User are agreeing that Userwill arbitrate any disputebetween ErateSync and Userin accordance with the terms of this Section 16 as ofthe date User first accepted theTerms(or accepted any subsequent changes to theseTerms).
16. Relationshipof The Parties
Nothingin these Terms shall be construed to create a partnership, joint venture oragency relationship. Neither party shall have any right or authority to assumeor create any obligation of any kind expressed or implied in the name of or onbehalf of the other party.
ErateSyncmay in the future provide User with access to third-party tools which ErateSyncneither monitors nor has any control over or gives input. User acknowledges andagrees that ErateSync provides access to such tools ”as is” and “as available”without any warranties, representations or conditions of any kind and withoutany endorsement. ErateSync shall have no liability whatsoever arising from orrelating to User’s use of optional third-party tools.
TheseTerms incorporate the following legal documents by reference, as well as anyother policies or procedures referenced herein that are posted to the Site fromtime to time:https://www.eratesync.com/security-and-privacy.These Termscontains the entire and final agreement between the parties, and there are noother promises or conditions in any other agreement whether oral or writtenconcerning the subject matter of these Terms and supersedes all prior orcontemporaneous oral or written agreements, representations, understandings,undertakings and negotiations with respect to the subject matter hereof. TheseTermssupersedes any prior written or oral agreements between the parties. Theterms of these Terms apply to the exclusion of any other terms that User seeksto impose or incorporate, or which are implied by trade, custom, practice orcourse of dealing. User acknowledges that it has not relied on any statement,promise or representation made or given by or on behalf of ErateSync that isnot set out in these Terms. In the event of a conflict between any policiesposted on the Service and these Terms, these Terms will control.
Ifany provision of these Termswill be held to be invalid or unenforceable for anyreason, the remaining provisions will continue to be valid and enforceable. Ifa court finds that any provision of these Terms is invalid or unenforceable,but that by limiting such provision it would become valid and enforceable, thensuch provision will be deemed to be written, construed, and enforced as solimited.
20. Changesto Terms and Conditions
Usercan review the most current version of the Terms at any time on the Site. ErateSyncreserves the right, at its sole discretion, to update, change or replace anypart of these terms by posting updates and changes to its Site (as indicated bya revised “Last Updated” date at the top of this page). It is User’sresponsibility to check the Site periodically for changes. Modifications willbe effective on the date that they are posted to the Site. Users continued useof or access to the Site or the Service following the posting of any changes tothese terms constitutes acceptance of those changes. ErateSync may change ordiscontinue all or any part of the Service, at any time and without notice, atits sole discretion.
TheseTerms shall be governed by the laws of the state of California, without regardto its conflict of laws principles. The parties hereby irrevocably consent tothe exclusive jurisdiction of, and venue in, any federal or state court ofcompetent jurisdiction located in Los Angeles County, California, for thepurposes of adjudicating any dispute arising out of these Terms.Notwithstanding the foregoing, either party may at any time seek and obtainappropriate legal or equitable relief in any court of competent jurisdictionfor claims regarding such party’s intellectual property rights.
Userconsents to receive all communications including notices, agreements,disclosures, or other information from ErateSync electronically. ErateSync maycommunicate by email or by posting to the Site. For all notices to ErateSync, pleasewrite an email to the following address: email@example.com.
Thefailure of ErateSync to enforce any provision of these Terms shall not beconstrued as a waiver or limitation of ErateSync’s right to subsequentlyenforce and compel strict compliance with every provision of these Terms. Awaiver of any right is only effective if it is in writing by an authorizedrepresentative of ErateSync and only against the party who signed such writingand for the circumstances given. ErateSync’s rights and remedies hereunder arecumulative and not exclusive
Although this Site may be accessible worldwide, thematerials, services on this Site are not available for use in locations outsidethe United States of America. We do not allow Users or accounts based outside of the UnitedStates. Furthermore, we make no claims that the Site is accessible orappropriate outside of the United States. Access to the Site may not be legalby certain persons or in certain countries. If you access the Site from outsidethe United States, you do so on your own initiative and are responsible forcompliance with local laws.
AnyServices provided by ErateSync under these Terms are to E-rate Entity andcannot be transferred or assigned to any other entity. ErateSync shall beentitled to assign these Terms to any other company without prior notice to User.ErateSync may assign, transfer, sub-contract any of our rights or obligationsto any third party at ErateSync’s sole and absolute discretion.
26. Constructionand Interpretation
The rule requiringconstruction or interpretation against the drafter is waived. The documentshall be deemed as if it were drafted by both parties in a mutual effort.Section headings are for convenience only and are not to be used ininterpreting these Terms.