Sutherland Consulting Group, Inc. Terms of Service last updated January 5, 2021
Terms of ServiceTHIS TERMS OF SERVICE AGREEMENT (“Terms”) GOVERNS USER’S USE OF ANDPARTICIPATION IN ANY FUNCTION OF THE SITE AND SERVICES. CAPITALIZED TERMSHAVE THE DEFINITIONS SET FORTH HEREIN. YOU ARE ACCEPTING THIS AGREEMENT,BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) ACKNOWLEDGING ACCEPTANCEOF THIS AGREEMENT IN A SEPARATE DOCUMENT REFERENCING OR INCORPORATINGTHE TERMS OF THIS AGREEMENT AND/OR (3) CREATING AN ACCOUNT FOR THESERVICES, USER AGREES TO THE TERMS OF THIS AGREEMENT. THE INDIVIDUALACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF THE COMPANY ORORGANIZATION, THUS INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TOBIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICHCASE THE TERM “USER” SHALL REFER TO BOTH (I) SUCH ENTITY AND ITS AFFILIATESAND (II) THE INDIVIDUAL SIGNING UP FOR THE ACCOUNT AND ALL INDIVIDUALS WITHACCESS TO THE ORGANIZATIONS ACCOUNT. IF THE INDIVIDUAL ACCEPTING THISAGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESETERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENTAND 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 theseTerms.
PLEASE READ: THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION ANDCLASS ACTION WAIVER (SECTION 15). READ CAREFULLY, INCLUDING USER’S RIGHT, IFAPPLICABLE, TO OPT OUT OF ARBITRATION. EXCEPT FOR CERTAIN TYPES OFDISPUTES DESCRIBED IN SECTION 15 BELOW, OR WHERE PROHIBITED BY LAW, BYENTERING INTO THESE TERMS USER EXPRESSLY AGREES THAT DISPUTES BETWEENUSER AND ERATESYNC WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION,AND USER HEREBY WAIVES USER’S RIGHT TO PARTICIPATE IN A CLASS ACTIONLAWSUIT OR CLASS-WIDE ARBITRATION.
1. ErateSync Services
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. ErateSyncre serves 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 ormaintain 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 theprovision 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 usesany 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
You must use the Services in compliance with the FCC’s E-Rate Program rules, and only as permitted by applicable law. The use of our Services in conjunction with other tools or resources in furtherance of any of the unacceptable uses described herein is also prohibited. User agrees to strictly abide by the following:
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 by ErateSync in writing, you may not probe, scan, or test the vulnerability or security of the Services or any ErateSync system or network.(g) Unless authorized by ErateSync in writing, you may not use any automated system or software to extract or scrape data from the websites or other interfaces through which we make our Services available.
(h) You may not deny others access to, or reverse engineer, the Services, or assist anyone else to doso, 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 tosuch 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 ErateSynch as agreed with you in writing otherwise. You may not 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 decisionsrequired 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.
Remember to Backup.
You are responsible for maintaining, protecting, and making backups of your account content. To the extent permitted by applicable law, ErateSync will not be liable for any failure to store, or for loss or corruption of, your account content.
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 payments can 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 result of orders deemed void in this manner. ONCE A PAYMENT IS CHARGE THERE WILL BENO 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 may be indicated on our Site, we cannot guarantee we are available within a given time frame to provide the Services. We reserve the right, without liability or prior 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 to 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 purchasesmade on our Site. You agree to promptly update billing and other information, including your emailaddress and payment processing information, so that we can complete your transactions and contact youas needed.
Notice of User’s intent to terminate its account must be made directly on the Site or by emailingus at email@example.com and is 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 ANY REASON WILL BE PROVIDED AFTER THEINITIAL 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. Term and 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. Effect of Termination
Upon termination of these Terms for any reason: all obligations of the parties shall terminate and all licenses granted by ErateSync will terminate, except that the following Sections will survive termination: Payments (Section 5), Cancellations (Section 6), Effect of Termination (Section 8),Intellectual Property (Section 9), Confidentiality (Section 10), Disclaimer and Warranty (Section11), Limitation of Liability (Section 12), Indemnification (Section 13), Dispute Resolution (Section15), Governing Law (Section 21), and all general provisions. Termination of these Terms by a party will not act as a waiver of any breach of these Terms and will not act as a release of liability under these Terms. Furthermore, User will have access to download any content upload by User to User’s account for a 3-month period, beginning on the date of termination. After the 3 months ,we will delete all information from the account.
9. Intellectual Property
(A) ErateSync Intellectual 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 or Services (“Content”), is the property of ErateSync or its licensors. The Content is protected by copyright, trademark, trade dress and/or other intellectual property laws and you acknowledge and agree that we retain all right, title and interest in and to the Content.
(B) Feedback and Support Chat
ErateSync encourages User to ask support related questions, provide suggestions, proposals,ideas, recommendations or other feedback regarding improvements to ErateSync’s Services. Tothe extent User provides such feedback, whether it be via our Support Chat feature, email orother form of communication, User grants to ErateSync a royalty-free, fully paid, sub-licensable,transferable, non-exclusive, irrevocable, perpetual, worldwide right and license to make, use, sell,offer for sale, import and otherwise exploit feedback (including by incorporation of such feedbackinto the Content) without restriction.
(C) License to Use the Service
Subject to User’s compliance with these Terms and solely for so long as User is permitted byErateSync to access and use the Service, ErateSync grants User a limited, non-transferable,non-exclusive, revocable right and license to access and use the Service for User’s own personal,non-commercial purposes, a right which may not be assigned or sublicensed to anyone. Thislicense will remain in effect unless and until User violates these Terms or this license is terminatedby User or ErateSync.
Except as expressly permitted in writing by an authorized representative of ErateSync, User willnot reproduce, redistribute, sell, transfer, create derivative works from, decompile, reverseengineer, or disassemble the Service, nor will User take any measures to interfere with ordamage the Service. Unless otherwise specified, copying or modifying any Content or usingContent for any purpose other than User’s personal, non-commercial use of the Service, includinguse of any such Content unrelated to the E-Rate program, is strictly prohibited. All rights notexpressly granted by ErateSync in these Terms are reserved.
User shall not (and shall not permit others to) do the following with respect to the Content: (i)license, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share or otherwise makeany of it available for access by third parties except as otherwise expressly provided in theseTerms; (ii) access it for the purpose of developing or operating products or services intended tobe offered to third parties in competition with ErateSync; (iii) disassemble, reverse engineer ordecompile it; (iv) copy, create derivative works based on or otherwise modify it except aspermitted 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 material protected by copyright or otherintellectual property right (including the rights of publicity or privacy) without first obtaining thepermission of the owner.
Confidential Information” means all information disclosed by a party to the other party, whetherorally or in writing, that is designated as confidential or that reasonably should be understood tobe confidential given the nature of the information and the circumstances of disclosure. Therecipient of Confidential Information shall: (i) at all times protect it from unauthorized disclosurewith the same degree of 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 extent necessary toexercise rights or fulfill obligations under these Terms. Each party shall limit the disclosure of theother party’s Confidential Information to those of its employees and contractors with a need toaccess such Confidential Information for a party’s exercise of its rights and obligations underthese Terms, provided that all such employees and contractors are subject to binding disclosureand use restrictions at least as protective as those set forth herein. Each party’s obligations setforth in this Section shall remain in effect during the term and three (3) years after termination ofthese Terms. The receiving party shall, at the disclosing party’s request or upon termination ofthese Terms, return all originals, copies, reproductions and summaries of ConfidentialInformation and other tangible materials and devices provided to the receiving party asConfidential Information, or at the disclosing party's option, certify destruction of the same. Aparty may disclose the disclosing party’s Confidential Information to a court or governmental bodypursuant to a valid court order, law, subpoena or regulation, provided that the receiving party:(a) promptly notifies the disclosing party of such requirement as far in advance as possible to theextent advanced notice is lawful; and (b) provides reasonable assistance to the disclosing partyin any lawful efforts by the disclosing party to resist or limit the disclosure of such ConfidentialInformation. The parties agree that the receiving party’s disclosure of Confidential Informationexcept as provided herein may result in irreparable injury for which a remedy in money damagesmay be inadequate. The parties further agree that in the event of such disclosure or threateneddisclosure, the disclosing party may be entitled to seek an injunction to prevent the breach orthreatened breach without the necessity of proving irreparable injury or the inadequacy of moneydamages, in addition to remedies otherwise available to the disclosing party at law or in equity.
11. Disclaimer and Warranty
The Site 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 Services is at User’s sole risk. TO THEFULL EXTENT PERMITTED BY LAW, ERATESYNC MAKES NO WARRANTY OF ANY KIND,IMPLIED OR EXPRESS, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OFMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT,QUIET ENJOYMENT AND ANY OTHER WARRANTY THAT MIGHT ARISE UNDER ANY LAW,AS TO THE SERVICE’S ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANYPURPOSE, THAT USER WILL SUCCESSFULLY MAINTAIN COMPLIANCE WITH THE ERATE PROGRAM, OR THAT ANY PARTICULAR LEVEL OF KNOWLEDGE OR USEFULNESSWILL BE ATTAINED BY USER.
Without limiting the foregoing, ErateSync makes no warranties or representations that theprovision of any content online, or the Services will always be available or be uninterrupted, timelyor error free, that defects will be corrected or that such content is secure or free from bugs,viruses, errors and omissions, that the Services will meet User’s personal or professional needs.
To the extent that another party may have access to or view content on User’s account or throughUser’s device, User is solely responsible for informing such party of all disclaimers and warningsin these Terms. TO THE EXTENT ANY DISCLAIMER OR LIMITATION OF LIABILITY DOESNOT APPLY, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL APPLICABLE EXPRESS,IMPLIED, AND STATUTORY WARRANTIES WILL BE LIMITED IN DURATION TO A PERIODOF 30 DAYS AFTER THE DATE ON WHICH USER FIRST USED THE SERVICES, AND NOWARRANTIES SHALL APPLY AFTER SUCH PERIOD.
User acknowledges that ErateSync may discontinue the Services at any time in its solediscretion. ErateSync reserves the right to modify the Service, including, but not limited toupdating, adding to, enhancing, modifying, removing or altering any content or features of theService, at any time, in its sole discretion. User is responsible for providing its own access (e.g.,computer, mobile device, Internet connection, etc.) to the Service.
12. Limitation of 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” FOR PURPOSES OFTHIS SECTION), BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE,CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING DAMAGES FOR DELETION,CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATIONOR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE SITE, SERVICE INTERRUPTIONS,OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES) ARISING OUTOF OR IN CONNECTION WITH THE SITE, A PURCHASE OF SERVICES, OR THESE TERMS,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 ADDITIONAL
User will defend, indemnify, and hold ErateSync including our affiliates, subsidiaries, parents, successorsand assigns, and each of our respective officers, directors, employees, agents, or shareholders harmlessfrom any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys’fees) relating to or arising out of your use of the Site and Services, including: (1) your breach of theseTerms or the documents it incorporates by reference; (2) your violation of any law or the rights of a thirdparty as a result of your own interaction with such third party; (3) your use of any Services purchasedthrough the Site; (5) any other activities in connection with the Site. This indemnity shall be applicablewithout regard to the negligence of any party, including any indemnified person.
14. Force Majeure
In case of force majeure, we are not obliged to fulfil our obligations. In that case we may either suspendour obligations for the duration of the state of force majeure or definitely repudiate these Terms.Events of force majeure are all circumstances external to our will and control that render the respect ofour obligations completely or partly impossible. Such events include, but are not limited to, any Act ofGod, epidemic, pandemic, terrorism, war, political insurgence, insurrection, riot, civil unrest, act of civil ormilitary authority, uprising, earthquake, flood, disruption of energy supplies or telecommunicationnetworks or communication systems and/or the temporary down-time of the Site, inaccessible Services,or any other natural or man-made eventuality outside of our control, which causes the termination of anagreement or contract entered into, nor which could have been reasonably foreseen. In the case of aforce majeure event, you are responsible for filing claims with the proper third-party entities.
15. Dispute Resolution
In the event of any dispute, controversy or claim between the parties hereto arising out of orrelating to these Terms, the parties shall first seek to resolve the dispute in good faith throughinformal discussion. User agrees that before initiating any dispute or arbitration proceeding, theparties will attempt to negotiate an informal resolution of any dispute. To begin this process,before initiating any arbitration proceeding, User must send a written notice of dispute (“DisputeNotice”) by certified mail to 2400 N. Lincoln Avenue Altadena, CA 91001. In the Dispute Notice,User must describe the nature and basis of the dispute and the relief User is seeking. If theparties are unable to resolve the dispute within 30 days after ErateSync’s receipt of the DisputeNotice, then User or ErateSync may initiate arbitration proceedings using the below procedureor small claims court
Mandatory Binding Arbitration.
The arbitration shall be administered by JAMS under itsComprehensive Rules in effect at the time the arbitration demand is made. The current rules,effective July 1, 2014, can be found here: http://www.jamsadr.com/rules-comprehensivearbitration/. JAMS arbitration rules can be found here: http://www.jamsadr.com/rules-clauses/. Inthe event of any conflict between the rules and these Terms, these Terms shall apply. The partiesagree to submit to the jurisdiction of a single neutral arbitrator selected in accordance with theJAMS Comprehensive Rules. The language of the arbitration shall be English. The arbitrator maygrant injunctions or other relief in such dispute or controversy. The arbitrator’s decision shall befinal, conclusive and binding on the parties to the arbitration. Judgment may be entered on thearbitrator’s decision in any court of competent jurisdiction. The parties agree that the arbitratorshall have exclusive authority to decide all issues relating to the interpretation, applicability,enforceability and scope of this arbitration agreement. During the arbitration, both User andErateSync may take one 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 any scheduling disputes.Notwithstanding the foregoing, the arbitrator shall not have jurisdiction over any dispute relatingto ownership, infringement or misappropriation of a party’s intellectual property or confidentialityrights unless the parties specifically so agree in writing in such matter, and either party may (afterattempting informal resolution as provided above) submit any such dispute to any court inaccordance with “Governing Law” section below, and may apply to any such court for injunctiverelief in connection therewith. The arbitration will be held in the United States county where Userlives 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 BEBROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASSMEMBER IN ANY PURPORTED CLASS, COLLECTIVE ACTION, OR NON-PAGAREPRESENTATIVE PROCEEDING (COLLECTIVELY “CLASS ACTION WAIVER”). THEARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS ORENGAGE IN ANY CLASS ARBITRATION. USER AGREES THAT, BY ENTERING INTO THESETERMS, USER AND ERATESYNC ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURYOR TO PARTICIPATE IN A CLASS ACTION. Further, if the parties’ dispute is resolved througharbitration, neither JAMS nor the arbitrator may not consolidate another person’s claims withUser’s claims or otherwise preside over any form of a representative or class proceeding for anypurpose. If this specific provision is found to be unenforceable, then the entirety of this Section16 shall be null and void.
In any lawsuit in which (1) the complaint is filed as a class action, collective action or non-PAGArepresentative action; and (2) the civil court of competent jurisdiction in which the complaint wasfiled finds the Class Action Waiver is unenforceable (and such finding is confirmed by appellatereview if review is sought), the Class Action Waiver shall be severable from these Terms and insuch instances, the class action, collective action and/or non-PAGA representative action mustbe litigated in a civil court of competent jurisdiction and not as a class, collective or non-PAGArepresentative arbitration.
PAGA WAIVER: TO THE EXTENT PERMISSIBLE BY LAW, THERE WILL BE NO RIGHT ORAUTHORITY FOR ANY DISPUTE TO BE BROUGHT, HEARD, OR ARBITRATED ON A GROUPBASIS OR IN ANY ACTION IN WHICH A PARTY SEEKS TO REPRESENT OTHERINDIVIDUAL(S) IN A PRIVATE ATTORNEY GENERAL ACTION (“PAGA WAIVER”). PAGACLAIMS MAY ONLY BE ARBITRATED ON AN INDIVIDUAL BASIS.
In any lawsuit in which (1) the complaint is filed as a private attorney general action seeking torepresent any individual(s) other than the named plaintiff; and (2) the civil court of competentjurisdiction in which the complaint was filed finds the PAGA Waiver is unenforceable (and suchfinding is confirmed by appellate review if review is sought), the PAGA Waiver shall be severablefrom these Terms and in such instances, the private attorney general action must be litigated ina civil court of competent jurisdiction and not as a private attorney general arbitration.
Notwithstanding any other clause contained in these Terms, any claim that all or part of the ClassAction Waiver or PAGA Waiver is invalid, unenforceable, unconscionable, void or voidable maybe determined only by a court of competent jurisdiction and not by an arbitrator. The Class ActionWaiver and PAGA Waiver shall be severable when a dispute is filed as an individual action andseverance is necessary to ensure that the individual action proceeds in arbitration
Opt-out of Mandatory Arbitration. User may seek to resolve a dispute in small claims court if itqualifies. User may decline this mandatory arbitration provision within 30 days of accepting theseTerms by emailing ErateSync at firstname.lastname@example.org and indicating User’s intent to opt-outof the arbitration provision. Please include User’s contact details. Note that opting out of thisarbitration provision does not affect any other part of these terms and these Terms, including theprovisions regarding controlling law or in which courts any disputes must be brought.
Payment of all filing, administration and arbitrator fees will be governed bythe JAMS Rules. If User asserts a claim against ErateSync, User will be responsible for payinga $250 consumer filing fee. ErateSync will pay for reasonable arbitration fees where: (a) the claimfor damages does not exceed $10,000, and (b) the claims are not frivolous under Federal Ruleof Civil Procedure 11(b). ErateSync will not seek attorneys’ fees or costs in arbitration unless thearbitrator determines the claims are frivolous under Federal Rule of Civil Procedure 11(b).
Severability. With the exception of any of the provisions in this Section, if an arbitrator or courtof competent jurisdiction decides that any part of these terms is invalid or unenforceable, theother parts of these terms will still apply.
Effect of Changes on Arbitration. Notwithstanding the provisions of Section 21 (Changes ToTerms And Conditions), if ErateSync changes any of the terms of this Section 16 after the dateUser first accepted these Terms (or accepted any subsequent changes to these Terms), Usermay reject any such change by sending ErateSync written notice within 30 days of the date suchchange became effective, as indicated in the “Last Updated” date above or the date ofErateSync’s email to User notifying User of such change. By rejecting any change, User areagreeing that User will arbitrate any dispute between ErateSync and User in accordance with theterms of this Section 16 as of the date User first accepted the Terms (or accepted any subsequentchanges to these Terms).
16. Relationship of The Parties
Nothing in these Terms shall be construed to create a partnership, joint venture or agencyrelationship. Neither party shall have any right or authority to assume or create any obligation ofany kind expressed or implied in the name of or on behalf of the other party.
17. Third-Party Tools
ErateSync may in the future provide User with access to third-party tools which ErateSync neithermonitors nor has any control over or gives input. User acknowledges and agrees that ErateSyncprovides access to such tools ”as is” and “as available” without any warranties, representationsor conditions of any kind and without any endorsement. ErateSync shall have no liabilitywhatsoever arising from or relating to User’s use of optional third-party tools.
18. Entire Terms
If any provision of these Terms will be held to be invalid or unenforceable for any reason, theremaining provisions will continue to be valid and enforceable. If a court finds that any provisionof these Terms is invalid or unenforceable, but that by limiting such provision it would becomevalid and enforceable, then such provision will be deemed to be written, construed, and enforcedas so limited.
20. Changes to Terms and Conditions
User can 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 any part of these terms byposting updates and changes to its Site (as indicated by a revised “Last Updated” date at the topof this page). It is User’s responsibility to check the Site periodically for changes. Modificationswill be effective on the date that they are posted to the Site. Users continued use of or access tothe Site or the Service following the posting of any changes to these terms constitutes acceptanceof those changes. ErateSync may change or discontinue all or any part of the Service, at anytime and without notice, at its sole discretion.
21. Governing Law
These Terms shall be governed by the laws of the state of California, without regard to its conflictof laws principles. The parties hereby irrevocably consent to the exclusive jurisdiction of, andvenue in, any federal or state court of competent jurisdiction located in Los Angeles County,California, for the purposes of adjudicating any dispute arising out of these Terms.Notwithstanding the foregoing, either party may at any time seek and obtain appropriate legal orequitable relief in any court of competent jurisdiction for claims regarding such party’s intellectualproperty rights.
User consents to receive all communications including notices, agreements, disclosures, or otherinformation from ErateSync electronically. ErateSync may communicate by email or by postingto the Site. For all notices to ErateSync, please write an email to the following address:email@example.com.
The failure of ErateSync to enforce any provision of these Terms shall not be construed as awaiver or limitation of ErateSync’s right to subsequently enforce and compel strict compliancewith every provision of these Terms. A waiver of any right is only effective if it is in writing by anauthorized representative of ErateSync and only against the party who signed such writing andfor the circumstances given. ErateSync’s rights and remedies hereunder are cumulative and not exclusive
24. Geographical Use
Although this Site may be accessible worldwide, the materials, services on this Site are not available foruse in locations outside the United States of America. We do not allow Users or accounts based outsideof the United States. Furthermore, we make no claims that the Site is accessible or appropriate outside ofthe United States. Access to the Site may not be legal by certain persons or in certain countries. If youaccess the Site from outside the United States, you do so on your own initiative and are responsible forcompliance with local laws.
Any Services provided by ErateSync under these Terms are personal to User and cannot betransferred or assigned to any other person. ErateSync shall be entitled to assign these Termsto any other company without prior notice to User. ErateSync may assign, transfer, sub-contractany of our rights or obligations to any third party at ErateSync’s sole and absolute discretion.
26. Construction and Interpretation
The rule requiring construction or interpretation against the drafter is waived. The document shallbe deemed as if it were drafted by both parties in a mutual effort. Section headings are forconvenience only and are not to be used in interpreting these Terms.