SLM NitroCollege LLC (collectively, “Company,” “we,” “our,” or “us”), an affiliate of Sallie Mae Bank provides access to and use of nitrocollege.com and myscholly.com, websites owned and operated by Company, as well as any and all other websites and subdomains owned or controlled by Company, including, without limitation, any and all mobile-optimized websites and subdomains (collectively, the “Websites”), together with the content, software, online, and/or mobile services, products and functionality offered on or through the Websites or mobile applications and made available via phone, tablet, or other mobile device (collectively, the “Service”).
IMPORTANT NOTICE: AT THE OUTSET, PLEASE NOTE THAT THESE TERMS CONTAIN AN ARBITRATION REQUIREMENT AND CLASS ACTION WAIVER. THESE ITEMS ARE DISCUSSED IN MORE DETAIL IN SECTION 18 BELOW, BUT, IN SUMMARY, THIS MEANS THAT IF THERE IS A DISPUTE BETWEEN YOU AND US, YOU WILL BE REQUIRED TO ARBITRATE ANY CLAIMS YOU HAVE AGAINST US ON AN INDIVIDUAL BASIS. ARBITRATION ON AN INDIVIDUAL BASIS MEANS YOU WILL NOT HAVE THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY.
The Terms, any and all Guidelines (as defined in Section 2(C)), any and all amendments, and any and all additional written agreements between you and Company concerning the Service, form a binding legal contract between you, an individual customer, member, visitor or user (“you”, “your,” or collectively with other users, “Users”) and Company. Company reserves the right to make unilateral changes to these Terms, as described in Section 6.
1. DESCRIPTION OF SERVICE
The Service provides you with, without limitation, the capability to review, perform and/or complete certain functions related to Company products and services.
2. ELIGIBILITY; USE OF THE SERVICE
3. USE RESTRICTIONS
You agree not to engage in any of the following prohibited activities:
4. REGISTRATION AND ACCOUNTS
To take advantage of many aspects of the Service, you will need to register an account with us. You are required to provide accurate and complete registration information. If that information changes, you must promptly update your account. During registration, you will provide your email, create a password, and provide personal information, such as your phone number, and educational information.
You are responsible for protecting and maintaining the confidentiality of your account. You are responsible for any activity that occurs under account, whether or not you have authorized the activity. You agree to notify us immediately at firstname.lastname@example.org of any breach or unauthorized use of your account. Once registered, you can terminate your account by accessing your account and deleting it.
5. Terms Applicable For Apple iOS and other platforms.
If you are accessing or using the Service through Apple, Android, or any other platform, these are Third-Party Services. If you access our Service via an Apple mobile application, see below “Terms Applicable for Apple iOS” section for Additional Terms and conditions that are applicable to you and are incorporated into the Terms by this reference.
Terms Applicable For Apple iOS.
(i) To the extent that you are accessing the Service through an Apple mobile application, you acknowledge that these Terms are entered into between you and Company and, that Apple, Inc. (“Apple”) is not a party to these Terms other than as third-party beneficiary as contemplated below.
(iii) You acknowledge that Company, and not Apple, is responsible for providing the Service and Content thereof.
(iv) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the Service.
(v) To the maximum extent not prohibited by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service.
(vi) Notwithstanding anything to the contrary herein, and subject to the terms and conditions of the Terms, you acknowledge that, solely as between Apple and Company, Company, and not Apple is responsible for addressing any claims you may have relating to the Service, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(vii) Further, you agree that if the Service, or your possession and use of the Service, infringes on a third party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
(viii) You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms against you as a third-party beneficiary thereof.
(ix) When using the Service, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the Service.
(x) Your use of real time route guidance on the Service (if any) is at your sole risk. Location data may not be accurate.
6. WIRELESS AND MESSAGING FEATURES
Wireless Features. The Service may offer certain features and services via your wireless tablet, mobile phone, other wireless device, or other Internet-enabled device (each, a “Wireless Device”). Features and services may include the ability to access the Service’s features, upload content to the Service, receive messages from the Service, and download applications to your Wireless Device (collectively, “Wireless Features”). You agree to receive communications we may send through Wireless Features for which you are registered. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Service for Wireless Features, then you agree to notify Company of any changes to your wireless contact information (including phone number) and update your accounts on the Service to reflect the changes. If the Service includes push notifications or other mobile communication capability, you hereby approve our delivery of electronic communications directly to your mobile Device. These notifications, including badge, alert or pop-up messages, may be delivered to your Device even when the Service is running in the background. You may have the ability, and it is your responsibility, to adjust the notifications you do, or do not, receive via your Device through your Device and/or App settings. Standard message, data and other fees may be charged by your carrier, and carriers may deduct charges from pre-paid amounts or data allowances, for which you are responsible. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Device. Contact your carrier with questions regarding these issues.
Email Messages: You may cancel or modify our email marketing communications you receive from us by following the instructions contained within our promotional emails. This will not affect subsequent subscriptions and if your opt-out is limited to certain types of emails the opt-out will be so limited. Please note that we reserve the right to send you certain communications relating to your account or use of our Service, such as administrative and service announcements and these transactional account messages may be unaffected if you choose to opt-out from receiving our marketing communications.
Additional Communication Preferences: You can also withdraw your consent to receive email, SMS, direct mail, and certain marketing communications from us by visiting our Communication Preference Center here
7. SUBMISSION OF USER MATERIALS
Accuracy of User Materials. You may submit to us through the Service content, information, User Data or other materials (together with all intellectual property rights in and to such materials, “User Materials”) in order to communicate with us (or our third-party customer service provider) or submit forms through the Service, including, without limitation, for the hosting, sharing and display of such User Materials and to apply for or request products or services. Any User Materials you submit to us for sharing or displaying through the Service will be considered non-confidential and non-proprietary. By providing any such User Materials for sharing or displaying through the Service, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such User Materials for any legal purpose. When applying for or requesting a product or service or otherwise submitting User Materials on or through the Service, you agree to provide current, complete, and accurate information about yourself and not to submit any User Materials that (i) may constitute or contribute to a crime or tort, (ii) contain any information or content that is illegal, fraudulent or deceptive, (iii) contain any information or content that you do not have a right to make available under any Law or under contractual or fiduciary relationships, or (iv) contain any information or content that you know is not accurate, complete, current or is otherwise designed to mislead, defraud or deceive us or any third party. If any information you provide is untrue, inaccurate, not current, or incomplete, Company has the right to terminate your application(s) for Company products or services and/or to decline to provide any future access to the Service.
8. MODIFICATIONS TO TERMS AND SERVICE; TERMINATION OR SUSPENSION OF ACCESS TO THE SERVICE
We may revise and update these Terms from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Service thereafter. However, any changes to the dispute resolution provisions will not apply to any disputes for which the parties have actual notice before the date the change is posted.
Your continued use of the Service following the posting of revised Terms means that you accept and agree to the changes. You are expected to check the Service each time you access it so you are aware of any changes, as they are binding on you.
Company, in its sole discretion, reserves the right to modify or discontinue, suspend temporarily or permanently stop providing, the Service or features of the Service, to you or to Users generally, or create usage limits for the Service, for any reason or no reason, with or without notice to you.
Company may permanently or temporarily terminate or suspend your access to the Service, without notice and liability to you or any third party for any reason, including, without limitation, if in our sole determination you violate any provision of these Terms, or for no reason. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination or suspension of your use of the Service may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies we may have at law, in equity or under this agreement. Upon termination for any reason or no reason, you continue to be bound by these Terms.
9. COMPANY MATERIALS; LINKS TO THIRD-PARTY SITES
10. PROPRIETARY RIGHTS TO CONTENT
You acknowledge and agree that content, including, without limitation, text, software, music, sound, photographs, video, graphics, images, logos, button icons, editorial content, notices, software (including, without limitation, HTML-based computer programs), other material contained in sponsor advertisements, and other information or materials presented to you through the Service (collectively, “Content”) is protected by copyrights, trademarks, service marks, patents or other proprietary rights and Laws. The Content belongs to Company or to others as indicated. You are only permitted to use this Content as expressly authorized by Company or the owner of such Content, and you may not copy, reproduce, distribute, display, download, license, modify, adapt, edit, publish, perform, repost, reuse, sell, supplement, transmit, create derivative works or otherwise use the Content for public or commercial purposes without our express authorization or the express authorization of the owner of such Content. Your right to use the Service is personal to you. Use of the Content other than as expressly permitted by these Terms is strictly prohibited.
Our name, the terms Nitro, NitroCollege, NitroNext, Scholly, Scholly Offers, Scholly Editor, Scholly Payoff, Nitroscore, Scholly Search, and Sallie Mae our logo, and all related names, logos, product and service names, designs, and slogans are trademarks of us or our affiliates or licensors. You must not use such marks without our prior written permission. All other names, logos, product and service names, designs, and slogans on the Service are the trademarks of their respective owners.
You may choose to or we may invite you to submit comments or ideas about Company or the Service, including, without limitation, about how to improve the Service or our products (collectively, “Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous and without restriction and will not place Company under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose to anyone the Feedback on a non-confidential basis or otherwise. You further acknowledge that, by acceptance of your submission, Company does not waive any rights to use similar or related ideas previously known to Company, or developed by its employees or contractors, or obtained from sources other than you.
11. DIGITAL MILLENNIUM COPYRIGHT ACT
Since we respect content owner rights, it is Company’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”). If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Company’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
The above information must be submitted to the following DMCA Agent:
Attn: Sallie Mae Legal Department –DMCA Notice
Company: SLM NitroCollege LLC
Address: 300 Continental Drive, Newark, Delaware 19713
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying Company and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Company’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable Laws.
In accordance with the DMCA and other applicable Law, Company has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Company may also at its sole discretion limit access to the Service to those who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
12. NO RELIANCE ON TOOLS AND INFORMATION
Company may make certain calculators and tools available to you through the Service, such as loan repayment calculators (collectively, “Tools”). You acknowledge and agree that any estimates, calculations or other information (collectively, “Information”) provided by or through such Tools is for informational purposes only and may be different than actual amounts or otherwise contain inaccuracies; such Information is not intended to be a substitute for your own independent research and calculations. Company does not and cannot verify that the Tools or Information are true, accurate, complete or current and makes no representations concerning such Tools or Information. You should not use or rely upon such Tools or Information for any reason, including, without limitation, making any decisions related to your loans or personal finances. Any reliance on the Tools or Information is solely at your own risk. Company hereby expressly disclaims all liability for any such Tools or Information provided by or through the Service to the fullest extent permitted by applicable Law.
13. CONFIDENTIALITY; YOUR SECURITY OBLIGATIONS
You acknowledge and agree that the Service is, and shall at all times remain, the sole and exclusive property of Company and its licensors, and that Company and its licensors are the sole and exclusive owners of all rights to the Service, including, without limitation, any and all copyrights and all related renewals and extensions. You agree that the Service is proprietary and confidential and that you will not authorize or permit its contents to be conveyed or in any manner communicated or used by any third party or to be duplicated or reproduced without our prior written approval. Your right to use the Service is personal to you. You agree to use the Service solely for your own personal, non-commercial purposes and not for any commercial purposes. You agree not to sell, resell, or exploit for any commercial purposes, the Service or use of or access to the Service or any information or technology obtained from the Service.
You will maintain the confidentiality of you access through the Service and you will protect such information from unauthorized access, use or disclosure.
You will take feasible steps to prevent transmission over the Service of any virus or other software routine designed or likely to permit unauthorized access to the Service or to disable, erase or otherwise harm any software, hardware or data accessible over the Service.
The confidentiality obligations of this Section 11 will survive the termination of your use of the Service.
You agree to be solely responsible for your actions and the contents of your transmission through the Service. You agree to use any data encryption tool that is built into the Service or another data encryption tool that is mutually agreed upon by you and Company.
We care about the integrity and security of your personally identifiable information. We have implemented commercially reasonable technical and organizational measures designed to secure your personally identifiable information from accidental loss and from unauthorized access, use, alteration or disclosure. However, you acknowledge and agree that despite our reasonable security measures, we cannot guarantee that electronic communications over the Internet will be 100% secure and that unauthorized third parties will never be able to defeat those measures or use your personally identifiable information for improper purposes. You acknowledge that you are under no obligation to use the Service, and that you provide any personal or sensitive information in order to use the Service at your own risk.
15. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY AGREE THAT USE OF THE SERVICE AND ANY MATERIALS OR INFORMATION PROVIDED BY US OR MADE AVAILABLE TO YOU THROUGH THE SERVICE, INCLUDING, WITHOUT LIMITATION, COMPANY MATERIALS, IS AT YOUR SOLE RISK. THE SERVICE AND COMPANY MATERIALS, INCLUDING, BUT NOT LIMITED TO ANY THIRD-PARTY-PROVIDED INFORMATION, SOFTWARE OR SERVICES MADE AVAILABLE THROUGH THE SERVICE ARE PROVIDED ON AN “AS IS,” “WHERE IS” AND “AS AVAILABLE” BASIS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
COMPANY MAKES NO WARRANTY THAT THE SERVICE OR COMPANY MATERIALS WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE OR COMPANY MATERIALS WILL BE UNINTERRUPTED, TIMELY, AVAILABLE AT A PARTICULAR TIME OR LOCATION, SECURE, OR ERROR FREE; NOR DOES COMPANY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR COMPANY MATERIALS OR AS TO THE TIMELINESS, ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY COMPANY MATERIALS, OR THAT DEFECTS OR ERRORS IN THE SOFTWARE USED IN THE SERVICE, SERVICE OR COMPANY MATERIALS WILL BE CORRECTED, OR THAT THE SERVICE WILL MEET YOUR REQUIREMENTS.
COMPANY EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE SERVICE (OR ANY INFORMATION OR SOFTWARE CONTAINED THEREIN) IS FREE OF VIRUSES, WORMS, TROJAN HORSES, HARMFUL COMPONENTS, OR OTHER CODE THAT MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA OR CONTENT THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE. COMPANY MAKES NO WARRANTY REGARDING ANY SERVICES OBTAINED THROUGH THE SERVICE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICE.
COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
COMPANY DOES NOT WARRANT OR GUARANTEE THAT YOU WILL RECEIVE ANY PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY FINANCIAL AID, SCHOLARSHIP, AND NEITHER COMPANY NOR ANY OF ITS OFFICERS, DIRECTORS OR AFFILIATES SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LACK OF SUCCESS OF ANY APPLICATION BY YOU FOR ANY SCHOLARSHIP, OR OTHER SERVICE OR PRODUCT. COMPANY EXPRESSLY DISCLAIMS LIABILITY OR RESPONSIBILITY FOR THE SUCCESS OF ANY APPLICATION BY YOU FOR SCHOLARSHIPS, OR OTHER PRODUCTS OR SERVICES.
NOTWITHSTANDING THE FOREGOING, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
You will indemnify, hold harmless and reimburse Company and its agents, licensors, suppliers, contractors and third-party providers, and their respective employees, members, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, settlements, costs or debt, and expenses (including, without limitation, court costs and reasonable attorneys’ fees)(collectively, “Losses”) caused by or arising from: (i) your or your agents’ use of or user name and password), and any data or content, including, without limitation, any User Materials, transmitted or received by you; (ii) any and all actual or alleged injury to any person (including death) or property to the extent caused in whole or in part by your negligence; (iii) your violation of any term of these Terms, including, without limitation, your breach of any of the representations and warranties above; (iv) your violation of any third-party right, including, without limitation, any right of privacy, right of publicity or intellectual property rights; (v) your violation of any applicable Law; (vi) any claims or damages that arise as a result of any of your User Materials; or (vii) the negligence or willful misconduct of you or your agents.
17. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE DISCLAIMERS OF WARRANTY AND OTHER DISCLAIMERS IN THESE TERMS, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR ACTUAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING FROM OR RELATING TO THE SERVICE OR COMPANY MATERIALS, OR THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICE OR COMPANY MATERIALS. UNDER NO CIRCUMSTANCES WILL COMPANY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE; (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONALLY IDENTIFIABLE INFORMATION STORED THEREIN; (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY; OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
NOTWITHSTANDING THE FOREGOING, SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. FURTHER, NOTHING IN THESE TERMS IS INTENDED TO LIMIT OR DISCLAIM COMPANY’S OBLIGATIONS UNDER APPLICABLE LAW AND TO THE EXTENT ANY PROVISION OF THESE TERMS ARE FOUND TO BE PROHIBITED BY, INVALID OR UNENFORCEABLE UNDER APPLICABLE LAW, THAT PROVISION WILL BE ENFORCED TO THE MAXIMUM EXTENT PERMISSIBLE AND THE OTHER PROVISIONS OF THESE TERMS WILL REMAIN IN FORCE.
IF THESE LIMITATIONS OR EXCLUSIONS ARE HELD TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, UNLESS OTHERWISE PROHIBITED BY APPLICABLE LAW, THE MAXIMUM COLLECTIVE LIABILITY OF COMPANY, IF ANY, FOR LOSSES OR DAMAGES SHALL NOT EXCEED $500. IN NO EVENT SHALL COMPANY BE LIABLE TO YOU FOR ANY LOSSES OR DAMAGES GREATER THAN THE AMOUNT REFERRED TO ABOVE.
18. MANDATORY ARBITRATION; APPLICABLE LAW
By using the Service, you agree that, if there is any controversy, claim, action, or dispute arising out of or related to your use of the Service or the breach, enforcement, interpretation, or validity of these Terms or any part of them, except for disputes that qualify for small claims court (each, a “Dispute”), each party shall first try in good faith to settle such Dispute by providing written notice to the other party describing the facts and circumstances of the Dispute and allowing the receiving party thirty (30) days in which to respond to or settle the Dispute. Notice shall be sent to:
Both you and the Company agree that this dispute resolution procedure is a condition precedent that must be satisfied before initiating any litigation or filing any claim against the other party. IF ANY DISPUTE CANNOT BE RESOLVED BY THE ABOVE DISPUTE RESOLUTION PROCEDURE, YOU AGREE THAT SUCH DISPUTE WILL BE DECIDED BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY. Other rights that you and we would otherwise have in court will not be available or will be more limited in arbitration, including discovery and appeal rights.
All such disputes shall be exclusively submitted to JAMS () for binding arbitration under its rules then in effect, as amended by this agreement to arbitrate, before one arbitrator to be mutually agreed upon by both parties. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances; provided, however, that, upon request by you, JAMS may hold an in-person hearing in your hometown area. Pursuant to the JAMS consumer arbitration policies, if you initiate arbitration against us, you will be responsible for a $250 fee and we will assume the remaining costs associated with the arbitration; if we initiate arbitration, we will assume all costs associated with the arbitration.
The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising under or relating to the interpretation, applicability, enforceability, or formation of these Terms, including any claim that all or any part of these Terms are void or voidable. The arbitrator shall issue a written statement with the disposition of each claim and a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
These Terms will be governed by and construed under the Laws of the United States (including the Federal Arbitration Act) and the State of Delaware, without regard to conflicts of law principles.
19. IMPORTANT NOTE TO NEW JERSEY CONSUMERS
IF YOU ARE A CONSUMER RESIDING IN NEW JERSEY, THE FOLLOWING PROVISIONS OF THESE TERMS DO NOT APPLY TO YOU (AND DO NOT LIMIT ANY RIGHTS THAT YOU MAY HAVE), IN EACH CASE, TO THE EXTENT THAT THEY ARE UNENFORCEABLE UNDER NEW JERSEY LAW: (A) THE DISCLAIMER OF LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND (FOR EXAMPLE, TO THE EXTENT UNENFORCEABLE UNDER THE NEW JERSEY PUNITIVE DAMAGES ACT, NEW JERSEY PRODUCTS LIABILITY ACT, NEW JERSEY UNIFORM COMMERCIAL CODE AND NEW JERSEY CONSUMER FRAUD ACT); (B) THE LIMITATION ON LIABILITY FOR LOST PROFITS OR LOSS OR MISUSE OF ANY DATA (FOR EXAMPLE, TO THE EXTENT UNENFORCEABLE UNDER THE NEW JERSEY IDENTITY THEFT PROTECTION ACT AND NEW JERSEY CONSUMER FRAUD ACT); (C) APPLICATION OF THE LIMITATIONS OF LIABILITY TO THE RECOVERY OF DAMAGES THAT ARISE UNDER CONTRACT AND TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY (FOR EXAMPLE, TO THE EXTENT SUCH DAMAGES ARE RECOVERABLE BY A CONSUMER UNDER NEW JERSEY LAW, INCLUDING, WITHOUT LIMITATION, THE NEW JERSEY PRODUCTS LIABILITY ACT); (D) THE REQUIREMENT THAT YOU INDEMNIFY COMPANY (FOR EXAMPLE, TO THE EXTENT THE SCOPE OF SUCH INDEMNITY IS PROHIBITED UNDER NEW JERSEY LAW); AND (E) THE DELAWARE GOVERNING LAW PROVISION (FOR EXAMPLE, TO THE EXTENT THAT YOUR RIGHTS AS A CONSUMER RESIDING IN NEW JERSEY ARE REQUIRED TO BE GOVERNED BY NEW JERSEY LAW).
You agree that Company may terminate your use of the Service at Company’s discretion for any reason or no reason.
All notices to a party shall be in writing and shall be made either via email or conventional mail. In addition, Company may post notices or links to notices through the Service to inform you of changes to the Terms, the Service, or other matters of importance.
Contact Us. For information about how to contact us, please visit our “Contact Us” here.