Terms of Service

TERMS OF SERVICE

THESE TERMS AND CONDITIONS (THE “TERMS”) ARE A LEGAL CONTRACT BETWEEN YOU AND SETSCHEDULE, LLC (the “Company,” “WE” OR “US”).  THE TERMS EXPLAIN HOW YOU ARE PERMITTED TO USE THE WEBSITE WWW.SETSCHEDULE.COM AS WELL AS ALL ASSOCIATED COMPANY SITES AND THE COMMUNITY AND OTHER SERVICES AVAILABLE THROUGH THIS SITE (COLLECTIVELY, THE “SITE”).  UNLESS OTHERWISE SPECIFIED, ALL REFERENCES TO “SITE” INCLUDE THE CONTENT, COMMUNITY AND OTHER SERVICES AVAILABLE THROUGH THIS SITE (COLLECTIVELY, THE “SERVICES”) AND ANY SOFTWARE THAT the Company PROVIDES TO YOU THAT ALLOWS YOU TO ACCESS THE SITE FROM A MOBILE DEVICE (A “MOBILE APPLICATION”).  BY USING THIS SITE, YOU ARE AGREEING TO ALL THE TERMS; IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT PUSH THE BUTTON TO CREATE AN ACCOUNT OR SELECT THE BOX THAT YOU AGREE TO THE END USER LICENSE AGREEMENT OR OTHERWISE ACCESS OR USE THIS SITE, ANY SERVICES AVAILABLE THROUGH THIS SITE OR ANY INFORMATION CONTAINED ON THIS SITE.

IMPORTANT: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION AGREEMENT, INCLUDING CLASS ACTION WAIVER, THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO CLAIMS OR DISPUTES YOU MAY HAVE WITH THE COMPANY.  YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW. (PLEASE SEE THE SECTION ENTITLED “DISPUTE RESOLUTION – ARBITRATION AGREEMENT AND CLASS ACTION WAIVER”).

General Use.

By using this Site, you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old (a “Minor”), that you are using the Site with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to use the Site and agree to its Terms.  If you are a parent or legal guardian of a Minor, you hereby agree to bind the Minor to these Terms and to fully indemnify and hold harmless the Company if the Minor breaches any of these Terms.  If you are not at least 13 years old, you may not use the Site at any time or in any manner or submit any information to the Company or the Site.

The Company provides content through the Site and through the Services that is copyrighted works of authorship and/or trademarks of the Company or the Company’s third-party licensors and suppliers or other users of the Site (collectively, the “Materials”).  Materials may include logos, graphics, video, images, software and other content.

Subject to the terms and conditions of these Terms, and your compliance with these Terms, the Company hereby grants you a limited, personal, non-exclusive and non-transferable license to use and to display the Materials and to use this Site solely for your own personal use.  Except for the foregoing license, you have no other rights in the Site or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Site or Materials in any manner.

If you breach any of these Terms, the above license will terminate automatically, and you must immediately destroy any downloaded or printed Materials.

Mobile Applications.

The Company makes available Mobile Applications to access the Site via a mobile device.  To use the Mobile Application, you must have a mobile device that is compatible with the mobile service.  The Company does not warrant that the Mobile Application will be compatible with your mobile device.  The Company hereby grants to you a non-exclusive, non-transferable, revocable license to use an object code copy of the Mobile Application for one registered account on one mobile device owned or leased solely by you, for your own personal use.  You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Application, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Application to any third-party or use the Mobile Application to provide time sharing or similar services for any third-party; (iii) make any copies of the Mobile Application; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Application, features that prevent or restrict use or copying of any content accessible through the Mobile Application, or features that enforce limitations on use of the Mobile Application; or (v) delete the copyright and other proprietary rights notices on the Mobile Application.  You acknowledge that the Company may from time to time issue upgraded versions of the Mobile Application and may automatically electronically upgrade the version of the Mobile Application that you are using on your mobile device.  You consent to such automatic upgrading on your mobile device and agree that these Terms will apply to all such upgrades.  The foregoing license grant is not a sale of the Mobile Application or any copy thereof, and the Company and its third-party licensors or suppliers retain all right, title, and interest in and to the Mobile Application (and any copy of the Mobile Application).  Standard carrier data charges may apply to your use of the Mobile Application.

The following additional terms and conditions apply with respect to any Mobile Application that the Company provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”):

·         You acknowledge that these Terms are between you and the Company only, and not with Apple, Inc. (“Apple”).

·         Your use of the Company’s iOS App must comply with Apple’s then-current App Store Terms of Service.

·         The Company, and not Apple, are solely responsible for our iOS App and the Services and Content available thereon.  You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS App.  To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to our iOS App.

·         You agree that the Company, and not Apple, are responsible for addressing any claims by you or any third-party relating to our iOS App or your possession and/or use of our iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to us as provider of the iOS App.

·         You agree that the Company, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to our iOS App or your possession and use of our iOS App.

·         You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.

·         You agree to comply with all applicable third-party terms of agreement when using our iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).

·         The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as they relate to your license of the Company’s iOS App.  Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to your license of the iOS App as a third-party beneficiary thereof.

The following additional terms and conditions apply with respect to any Mobile Application that the Company provides to you designed for use on an Android-powered mobile device (an “Android App”):

·         You acknowledge that these Terms are between you and the Company only, and not with Google, Inc. (“Google”).

·         Your use of the Company’s Android App must comply with Google’s then-current Android Market Terms of Service.

·         Google is only a provider of the Android Market where you obtained the Android App.  The Company, and not Google, are solely responsible for the Company’s Android App and the Services and Content available thereon.  Google has no obligation or liability to you with respect to the Company’s Android App or these Terms.

·         You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to the Company’s Android App.

Changes.

The Company may make changes to the content and Services offered on the Site at any time.  The Company can change, update, or add or remove provisions of these Terms, at any time by posting the updated Terms on this Site and having you re-accept them at time of login or giving you notice and the opportunity to cancel your account and end your access to the Services.

Geo-Location Terms.

The Services include and make use of certain functionality and services provided by third-parties that allow the Company to include maps, geocoding, places and other Content from Google, Inc. (“Google”) as part of the Services (the “Geo-Location Services”).  Your use of the Geo-Location Services is subject to Google’s then current Terms of Use for Google Maps/Google Earth (http://www.google.com/intl/en_us/help/terms_maps.html) and by using the Geo-Location Services, you are agreeing to be bound by Google’s Terms of Use.

Using the Site and the Services on the Site.

In order to access the Services and Site and use the Community service and platform and other Services and Materials offered on and through the Site, you need to create an account with the Company and accept these Terms. To do so, you must register with the Company for an account by providing certain information and then you will receive a password.

Password Restricted Areas of this Site.

If you desire to register for an account with the Company, you must submit the following information through the account registration page on the Site: your first and last name, email address, business address and mobile phone number.  You may also have the ability to provide additional optional information, such as nothing is else required, which is not required to register for an account but may be helpful to the Company in providing you with more a more customized experience when using the Site or its Services.  Once you have submitted your account registration information, the Company administrator shall have the right to approve or reject the requested registration, in the Company administrator’s sole discretion.  If your account is approved by the Company administrator, you will be sent an e-mail that contains a password that will allow you to log-on to the Site using that password (the “the Company Password”) for the first time you log into your account on the Site to complete the account registration process.

You are responsible for maintaining the confidentiality of the Company Password provided to you (the “Password”). You also are responsible for all activities that occur using your Password. You agree not to share your Password, let others access or use your Password or do anything else that might jeopardize the security of your Password.  You agree to notify the Company if your Password on this Site is lost, stolen, if you are aware of any unauthorized use of your Password on this Site or if you know of any other breach of security in relation to this Site.

All the information that you provide when registering for an account and otherwise through the Site must be accurate, complete and up to date. You must also keep it updated at all times.

If you register for a beta account or other pre-release version of the Site and/or the Services and Materials on the Site (“Beta Release”), you acknowledge and agree that the Beta Release may contain, in the Company’s sole discretion, more or fewer features or different licensing terms than a subsequent commercial release version of the Site and/or Services that may be offered through the Site.  You acknowledge and agree that any “beta account” will automatically convert to a commercial release version account upon the launch date of the Site and its Services to the public (“Public Launch Date”).  If you do not desire to continue using the Site or its Services after the Public Launch Date, you may contact the Company to delete your account in accordance with the terms and conditions governing deletion of personal information set forth in the Company’s Privacy Policy.   While the Company generally intends to distribute commercial release versions of the Site and the Services and Materials on the Site, the Company reserves the right not to release later commercial release versions of any Beta Release and to change or discontinue the Beta Release.  Without limiting any disclaimer of warranty or other limitation stated herein, you agree that any Beta Release is not considered by the Company to be suitable for commercial use, and that it may contain errors affecting its proper operation.  BY ACCEPTING THESE TERMS, YOU ACKNOWLEDGE AND AGREE THAT USE OF A BETA RELEASE MAY EXHIBIT SPORADIC DISRUPTIONS THAT HAVE THE POTENTIAL TO DISRUPT YOUR USE OF THE SITE IN GENERAL AND ANY SERVICES THAT MAY BE OFFERED THROUGH THE SITE.  The Company SPECIFICALLY DISCLAIMS ALL DAMAGES RESULTING FROM YOUR USE OF ANY BETA RELEASE.

Purchases.

If applicable, you agree to pay all fees or charges to your account based on the Company’s fees, charges, and billing terms in effect as shown on the Site.  If you do not pay on time or if the Company cannot charge your credit card, PayPal or other payment method for any reason, the Company reserves the right to either suspend or terminate your access to the Site and account and terminate these Terms.  You are expressly agreeing that the Company is permitted to bill you for the applicable fees, any applicable tax and any other charges you may incur in connection with your use of this Site and the fees will be billed to your credit card, PayPal or other payment method designated on your initial registration with this Site, and thereafter at regular intervals for the remainder of the term of these Terms.  If you cancel your account at any time, you will not receive any refund.  If you have a balance due on any account, you agree that the Company may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.

Electronic Communications.

By using the Site and/or the Services provided on or through the Site, you consent to receiving electronic communications from the Company, including, without limitation, email and text messages.  These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Site and/or Services provided on or through the Site.  These electronic communications are part of your relationship with the Company.  You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.

Privacy Policy.

Please review the Company Privacy Policy (the “Privacy Policy”) which explains how we use information that you submit to the Company.

The use of Geo-Location Services is subject to the terms of the then current Google privacy policy (http://www.google.com/privacy.html).

Links to Third-Party Sites.

This Site may be linked to other web sites that are not the Company sites (collectively, “Third-Party Sites”).  Certain areas of the Site may allow you to interact and/or conduct transactions with such Third-Party Site and, in certain situations, you may be transferred to a Third-Party Site through a link but it may appear that you are still on this Site.  In any case, you acknowledge and agree that the Third-Party Sites may have different privacy policies and terms and conditions and/or user guides and business practices than the Company, and you further acknowledge and agree that your use of such Third-Party Sites is governed by the respective Third-Party Site privacy policy and terms and conditions and/or user guides.  You hereby agree to comply with any and all terms and conditions, users guides and privacy policies of any of Third-Party Sites.  The Company is providing links to the Third-Party Sites to you as a convenience, and the Company does not verify, make any representations or take responsibility for such Third-Party Sites, including, without limitation, the truthfulness, accuracy, quality or completeness of the content, services, links displayed and/or any other activities conducted on or through such Third-Party Sites. YOU AGREE THAT the Company WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD-PARTY.  Any reference on the Site to any product, service, publication, institution, organization of any third-party entity or individual does not constitute or imply the Company’s endorsement or recommendation.

Submissions.

You are responsible for the information, opinions, messages, comments, photos, videos, graphics, sounds and other content or material that you submit, upload, post or otherwise make available on or through the Site (each a “Submission”) and through the Services available in connection with this Site.  You may not upload, post or otherwise make available on this Site any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right owned by a third-party, and the burden of determining whether any material is protected by any such right is on you.  You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, violation of contract, privacy or publicity rights or any other harm resulting from any Submission that you make.  You have full responsibility for each Submission you make, including its legality, reliability and appropriateness.

Unless otherwise explicitly stated herein or in the Company Privacy Policy, you agree that any Submission provided by you in connection with this Site is provided on a non-proprietary and non-confidential basis.  You hereby grant to the Company a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license (including the right to sublicense through multiple tiers) to use, reproduce, process, adapt, publicly perform, publicly display, modify, prepare derivative works, publish, transmit and distribute each of your Submissions, or any portion thereof, in any form, medium or distribution method now known or hereafter existing, known or developed, and authorize others to use the Submissions.  We may modify or adapt your Submissions in order to transmit, display or distribute them over computer networks and in various media (including social media) and/or make changes to the Submissions as necessary to conform and adapt them to any requirements or limitations of any networks, devices, services or media.  The Company agrees to use any personally identifiable information contained in any of your Submissions in accordance with the Company’s Privacy Policy.

You agree to pay for all royalties, fees, damages and any other monies owing any person by reason of any Submissions posted by you to or through this Site.

When you provide Submissions you agree that those Submissions shall not be in violation of the “Unauthorized Activities” paragraph below.  Those prohibitions do not require the Company to monitor, police or remove any Submissions or other information submitted by you or any other user.

Unauthorized Activities.

When using this Site and/or the services, you agree not to:

·         Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others.

·         Use racially, ethnically, or otherwise offensive language.

·         Discuss or incite illegal activity.

·         Use explicit/obscene language or solicit/post sexually explicit images (actual or simulated).

·         Post anything that exploits children or minors or that depicts cruelty to animals.

·         Post any copyrighted or trademarked materials without the express permission from the owner.

·         Disseminate any unsolicited or unauthorized advertising, promotional materials, ‘junk mail’, ‘spam’, ‘chain letters’, ‘pyramid schemes’, or any other form of such solicitation.

·         Use any robot, spider, scraper or other automated means to access the Site.

·         Take any action that imposes an unreasonable or disproportionately large load on our infrastructure.

·         Alter the opinions or comments posted by others on this Site.

·         Post anything clearly false or misleading.

·         Post anything unrelated to our business, products or services.

·         Post anything contrary to our public image, goodwill or reputation, provided that the foregoing will not apply to you if applicable law prohibits such limitations and restrictions.

This list of prohibitions provides examples and is not complete or exclusive.  The Company reserves the right to (a) terminate access to your account, your ability to post to this Site (or use the Services) and (b) refuse, delete or remove any Submissions; with or without cause and with or without notice, for any reason or no reason, or for any action that the Company determines is inappropriate or disruptive to this Site or to any other user of this Site and/or Services.  The Company may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct.  When legally required or at the Company’s discretion, the Company will cooperate with law enforcement agencies in any investigation of alleged illegal activity on this Site or on the Internet.

Unauthorized use of any Materials or Third-Party Content contained on this Site may violate certain laws and regulations.

You agree to indemnify and hold the Company and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees and costs of defense) the Company or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third-party that your use of this Site or the use of this Site by any person using your user name and/or password (including without limitation, your participation in the posting areas or, your Submissions) violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third-party.

Proprietary Rights.

SetSchedule is a trademark of SetSchedule, LLC in the United States.  Other trademarks, names and logos on this Site are the property of their respective owners.

Unless otherwise specified in these Terms, all information and screens appearing on this Site, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of SetSchedule, Copyright © 2021 SetSchedule, LLC.  All rights not expressly granted herein are reserved.  Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.

The Mobile Application software that is provided to you through the Site and Services and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, if You are a government entity, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.  Unpublished-rights reserved under the copyright laws of the United States.

Intellectual Property Infringement.

The Company respects the intellectual property rights of others, and we ask you to do the same.  The Company may, in appropriate circumstances and at our discretion, terminate service and/or access to this Site for users who infringe the intellectual property rights of others.  If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on our Site, please provide the Company’s designated agent the following information:

·         A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

·         Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site.

·         Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at the Site, and information reasonably sufficient to permit the Company to locate the material.

·         Information reasonably sufficient to permit the Company to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.

·         A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law.

·         A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

The Company’s agent for notice of claims of copyright or trademark infringement on this Site can be reached as follows: legal@setschedule.com

Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

Submitting a DMCA Counter-Notification

We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a valid DMCA take-down notice that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to the Company designated agent that includes all of the following information:

1.  Your physical or electronic signature;

2.  Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;

3.  A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and

4.  Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which the Company may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.

Termination of Repeat Infringers

the Company reserves the right, in its sole discretion, to terminate the account or access of any user of our web site and/or service who is the subject or repeated DMCA or other infringement notifications.  

Disclaimer of Warranties.

Your use of this Site and/or the Services is at your own risk.  The Materials have not been verified or authenticated in whole or in part by the Company, and they may include inaccuracies or typographical or other errors.  The Company does not warrant the accuracy of timeliness of the Materials contained on this Site.  The Company has no liability for any errors or omissions in the Materials, whether provided by the Company, our licensors or suppliers or other users.

THE COMPANY, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THIS SITE, THE SERVICES, OR ANY MATERIALS RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE, INCLUDING WITHOUT LIMITATION THE MATERIALS.  UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS SITE, THE SERVICES, AND MATERIALS, AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.  THE COMPANY DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.

Limitation of Liability.

THE COMPANY SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THIS SITE.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, WHETHER SOUNDING IN TORT (INCLUDING NEGLIGENCE, CONTRACT OR OTHERWISE), EVEN IF THE COMPANY KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL COMPANY’S LIABILITY EXCEED THE GREATER OF $100 AND THE AMOUNTS YOU PAY THE COMPANY FOR USE OF, OR IN CONNECTION WITH, THE SITE.

Dispute Resolution – Arbitration Agreement and Class Action Waiver.

Please read this Arbitration Agreement and Class Action Waiver carefully.  It affects your rights.

Most customer concerns regarding the Services can be resolved quickly and to a customer’s satisfaction by emailing us at legal@setschedule.com.  This Arbitration Agreement and Class Action Waiver (“Arbitration Agreement”) facilitates the prompt and efficient resolution of any Disputes that may arise between you and the Company regarding your use of the Services.  Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision.  You have the right to opt-out of this Arbitration Agreement (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.

For the purpose of this Arbitration Agreement, the “Company” means SetSchedule, LLC and its current and future parents, subsidiaries, and affiliated companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and the Company regarding any aspect of your relationship with the Company, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Agreement (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced.

YOU AND THE COMPANY EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED BELOW, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION, RATHER THAN IN COURT, IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT.

Pre-Arbitration Dispute Resolution: For all Disputes you must first give the Company an opportunity to resolve the Dispute. You must commence this process by mailing written notification to SetSchedule, LLC, 100 Spectrum Center Drive, 9th Floor, Irvine, CA 92618. That written notification must include (1) your name, (2) your address, (3) a written description of the Dispute, and (4) a description of the specific relief you seek. If the Company does not resolve the Dispute to your satisfaction within 45 days after it receives your written notification, you may pursue your Dispute in arbitration.

Exclusions from Arbitration/Opt Out: You may opt-out of this Arbitration Agreement by mailing written notification to SetSchedule, LLC, 100 Spectrum Center Drive, 9th Floor, Irvine, CA 92618.  Your notice must contain the following information: (1) your name; (2) your address; and (3) a clear statement that you do not wish to resolve Disputes with us through arbitration.  Your decision to opt-out of this Arbitration Agreement will have no adverse effect on your relationship with us, but we must receive this opt-out request within 30 days from the date that you first consent to these Terms.  Any opt-out request received after this deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.

Arbitration Procedures: If this Arbitration Agreement applies and the Dispute is not resolved as provided above (“Pre-Arbitration Dispute Resolution”) either you or the Company may initiate arbitration proceedings.  The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator.  The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a representative or class arbitration.  All issues shall be for the arbitrator to decide, including the scope of this Arbitration Agreement.

For arbitration before the AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply.  In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply.  The AAA rules are available at www.adr.org or by calling 1-800-778-7879.  For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply.  The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267.  This Arbitration Agreement governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.

Because your contract with the Company, these Terms, and this Arbitration Agreement concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes.  However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.

Arbitration Award: The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding.  The arbitrator shall make any award in writing but need not provide a statement of reasons unless requested by a party.  Such award by the arbitrator will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.

Location of Arbitration: You may initiate arbitration in either Los Angeles, California or in the federal judicial district that includes your address that you provide in your written notification of Pre-Arbitration Dispute Resolution.  If the Company initiates an arbitration, it may only do so in the federal judicial district that includes your address that you provide in your written notification of Pre-Arbitration Dispute Resolution.

Payment of Arbitration Fees and Costs: The Company will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration.  You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses.  Fees and costs may be awarded as provided pursuant to applicable law.  In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with the Company as provided in the section above titled “Pre-Arbitration Dispute Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover from the Company your actual and reasonable attorney’s fees and costs as determined by the arbitrator.

Class Action Waiver: The parties agree that the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, representative action, consolidated action or private attorney general action) unless both you and the Company specifically agree in writing to do so following initiation of the arbitration. Neither you, nor any other subscriber and/or user of the Company’s services, can be a class representative, class member, or otherwise participate in a class, representative, consolidated or private attorney general proceeding.

Limitation of Procedural Rights: You understand and agree that, by entering into this Arbitration Agreement, you and the Company are each agreeing to arbitration instead of the right to a trial before a judge or jury in a public court.  In the absence of this Arbitration Agreement, you and the Company might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions).  You give up those rights and instead agree to arbitration.  Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited in arbitration.  The right to appellate review of an arbitrator’s decision is much more limited than in court, and in general an arbitrator’s decision may not be appealed for errors of fact or law.

Severability: If any clause within this Arbitration Agreement (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Arbitration Agreement, and the remainder of this Arbitration Agreement will be given full force and effect.  If the Class Action Waiver clause is found to be illegal or unenforceable, then this entire Arbitration Agreement will be unenforceable, and the Dispute will be decided by a court.

Continuation: This Arbitration Agreement shall survive the termination of your contract with the Company and your use of the Services.

Local Laws; Export Control.

The Company controls and operates this Site from its headquarters in the United States of America and the Materials may not be appropriate or available for use in other locations.  If you use this Site outside the United States of America, you are responsible for following applicable local laws.

Feedback.

If you send or transmit any communications, ideas, comments, feedback, questions, suggestions, or related materials to the Company, whether by letter, email, telephone, social media, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Site, any Services offered through the Site or Materials, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary.  Except as prohibited by applicable law, you hereby assign all right, title, and interest in, and the Company is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback.  Where the foregoing assignment is prohibited by law, you hereby grant the Company an exclusive, irrevocable, perpetual, non-terminable, transferable, sublicensable, worldwide, royalty-free, fully paid up license (including the right to sublicense) to use and exploit all Feedback as We may determine in our sole discretion.  Notwithstanding the foregoing, you understand and agree that the Company is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.

Language.

The Parties hereto have expressly required that these Terms and all documents and notices relating thereto be drafted in the English language.

General.

The Company prefers to advise you if we believe you are not complying with these Terms and to recommend any necessary corrective action.  However, certain violations of these Terms, as determined by the Company, may result in immediate termination of your access to this Site and the Services without prior notice to you.  The Federal Arbitration Act, California state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, govern all matters arising out of these Terms.  Foreign laws do not apply.  The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to these Terms.  If the Arbitration Agreement (as set forth above) is held to be unenforceable, you agree that any claims or disputes that you have against us must be resolved in the federal or state courts located in Orange County, California to the extent permissible by applicable law.  In such case, you agree to submit to the personal jurisdiction of either of these courts for the purpose of litigating any Dispute.  Notwithstanding the foregoing, claims appropriately brought in small claims court may be filed in any court of competent jurisdiction.  If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified.  The Company’s failure to enforce any of these Terms is not a waiver of such term.  These Terms are the entire agreement between you and the Company and supersede all prior or contemporaneous negotiations, discussions or agreements between you and the Company about this Site.  The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.

Contact Us.

If you have any questions about these Terms or otherwise need to contact the Company for any reason, you can reach us at legal@setschedule.com.

Rev. 5/21