Last Updated: November 15, 2016
1. Terms of Service
By accessing or using any web site or service made available by FamilyWise, you acknowledge that you (i) have read and agree to be bound by these Terms of Service and (ii) agree to comply with all applicable laws and regulations, including US state and federal securities laws and regulations and export and re-export control laws and regulations.
The following meanings shall apply in these Terms of Service: “Site” refers to any web site made available by FamilyWise. “Services” refers to the Site and all services, self-help documents, forms, and templates provided by FamilyWise. “FamilyWise”, “we”, “us” and “our” refer to FamilyWise and our affiliates (including officers, directors, employees, consultants, agents and representatives). “You” and “your” refer to each customer, visitor or user of any Services.
2. Modifications to the Terms of Service
If we modify these Terms of Service, we will either post the modification on the Site or otherwise provide you with notice of the modification. We will also update the “Last Updated” date at the top of these Terms of Service. By continuing to access or use the Site or Services after we have posted a modification on the Site or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site and Services. If at any time you find these Terms of Service unacceptable or if you do not agree to these Terms of Service, please do not access the Services.
YOU AGREE THAT BY USING THE SERVICES YOU ARE AT LEAST 18 YEARS OF AGE AND YOU ARE LEGALLY ABLE TO ENTER INTO A CONTRACT.
3. Our Services are not legal advice and there is no attorney-client relationship between you and us
FamilyWise is not a law firm and does not provide any legal advice. As part of our Services, we offer self-help, “fill in the blank” forms. If you buy or download a form on the Site, the Terms of Service control. You understand that your purchase, download, and/or use of a form document is neither legal advice nor the practice of law, and that each form and any applicable instructions or guidance is not customized to your particular needs. Our Services are not substitutes for the advice of an attorney and if you need legal advice for your specific matter, or if your matter is too complex to be addressed by our Services and tools, you should consult a licensed attorney in your area. At no time is an attorney-client relationship or any other special relationship created between you and FamilyWise or any employee or other person associated with FamilyWise, and any information you provide us is not protected by attorney-client privilege or as work product. You are and will be representing yourself in any matter you undertake using the Services.
We provide online tools and materials to assist you with the preparation, execution and storage of your own legal documents and related information. We strive to keep the documents and other materials available through the Services, including any descriptions, information and other help resources (collectively, the “Document Materials”) current and up-to-date; however, they are not legal advice and are not guaranteed to be correct, complete or up-to-date. The law changes rapidly and is different from jurisdiction to jurisdiction, and may be subject to interpretation by different courts. The law is a personal matter, and no general information or legal tool like the kind we provide can fit every circumstance. We do not review the Document Materials or any information you input for accuracy or legal sufficiency, draw legal conclusions, provide legal advice or apply the law to the facts of your particular situation. You understand that our providing of the Services to you is neither legal advice nor the practice of law, and that the Document Materials are not customized to your particular needs. Therefore, if you need legal advice for your specific problem, or if your specific problem is too complex to be addressed by our tools, you should consult a licensed attorney in your area.
If, prior to your use of any legal document, you believe that FamilyWise gave you any legal advice, opinion or recommendation about your legal rights, remedies, defenses, options, selection of forms or strategies, you must not use these documents, and any use of these documents is done at your own risk.
YOU UNDERSTAND THAT FAMILYWISE DOES NOT REVIEW DOCUMENTS FOR ERRORS, INACCURACIES OR INCOMPLETE INFORMATION. THE SERVICES ARE A FULLY AUTOMATED PROCESS. WE PROVIDE THESE FORMS ON A BEST EFFORT BASIS BUT THEY ARE NOT INTENDED TO BE COMPREHENSIVE OR FREE FROM ALL ERRORS. YOU MUST READ THE FINAL DOCUMENT(S) BEFORE SIGNING THEM AND AGREE TO BE SOLELY RESPONSIBLE FOR THE FINAL DOCUMENT(S). IF YOU HAVE QUESTIONS, IT IS YOUR SOLE RESPONSIBILITY TO CONSULT WITH A LICENSED ATTORNEY IN YOUR JURISDICTION.
4. You must ensure security and integrity of your account
When you open an account to use or access certain Services or provide us with information in connection with a purchase or transaction, you must provide accurate, complete and current information. You will also be asked to provide a user name and password. You are entirely responsible for maintaining the confidentiality of your password. You are solely responsible for the activity that occurs on your account. You must keep your account password secure and you may not use a third party’s account at any time. FamilyWise shall not be liable for any losses you incur as a result of someone else’s use of your account. You may be held liable for any losses incurred by FamilyWise due to someone else’s use of your account.
5. You will not engage in prohibited activities
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system to access the Services in a manner that sends more request messages to the FamilyWise servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that FamilyWise grants the operators of public search engines revocable permission to use spiders to copy materials from publicly accessible web pages at FamilyWise.com for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Services; (vii) collecting or harvesting any personally identifiable information, including account names, from the Services; (viii) using the Services for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Services; (xi) accessing any content on the Services through any technology or means other than those provided or authorized by the Services; or (xii) bypassing the measures we may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein.
6. We retain the right to change or stop providing Services and features
We may, without prior notice, change the Services, stop providing the Services or features of the Services, or create usage limits for the Services. We may permanently or temporarily terminate or suspend your access to the Services without notice and liability for any reason, including if in our sole determination you have or may have violated any provision of these Terms of Service, or for no reason. Upon termination for any reason or no reason, you continue to be bound by these Terms of Service. Any data, account history and account content residing on the servers running the Services may be deleted, altered, moved or transferred at any time for any reason at the sole discretion of FamilyWise, with or without notice and with no liability of any kind. FamilyWise does not provide or guarantee, and expressly disclaims, any value, cash or otherwise, attributed to any data residing on the servers running the Services.
7. User interaction and user content
You are solely responsible for your interactions with other users of the Services. We reserve the right, but have no obligation, to monitor disputes and interactions between you and other users. FamilyWise shall have no liability for your interactions with other users, or for any user’s action or inaction.
Some areas of the Services may allow users to post content such as profile or transaction information, comments, questions, and other content or information (any such materials a user submits, posts, displays, or otherwise makes available on the Services “User Content”). You retain ownership of your User Content.
You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current. You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below), rights of publicity and privacy. You acknowledge and agree that any User Content that you post may be displayed and disclosed to other users as permitted through the functionality of the Services. FamilyWise reserves the right, but is not obligated, to edit, remove, re-categorize, pre-screen, reject and/or otherwise modify any User Content that FamilyWise believes, in its sole discretion, violates these provisions. You understand that publishing your User Content on the Services is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
For the purposes of these Terms of Service, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, you affirm, represent and warrant the following:
- Your User Content and our use thereof as contemplated by these terms of service and the Services will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
- FamilyWise may exercise the rights to your User Content granted under this Terms of Service without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
- To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.
FamilyWise takes no responsibility and assumes no liability for any User Content that you or any other user or third party posts or sends over the Services. You shall be solely responsible for your User Content and the consequences of posting or publishing it, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that FamilyWise shall not be liable for any damages you may incur as a result of User Content.
By posting any User Content on the Services, you expressly grant, and you represent and warrant that you have a right to grant, to FamilyWise a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Services. You also hereby grant each user of the Services a non-exclusive license to access your User Content through the Services, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Services and under the terms of these Terms of Service.
The above licenses granted by you in your User Content terminate within a commercially reasonable time after you remove or delete your User Content from the Services. We may retain and use your User Content as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements. Consistent with these requirements, we will try to delete your User Content quickly upon request. Please note, however, that there might be latency in deleting User Content from our servers and backed-up versions might exist after deletion. In addition, we do not delete User Content from our servers that you have in common with other users.
8. FamilyWise grants you a limited license
Subject to your compliance with the terms and conditions of these Terms of Service, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Services as designed. FamilyWise reserves all rights not expressly granted herein in the Services and the FamilyWise Content (as defined below). FamilyWise may terminate this license at any time for any reason or no reason.
9. Except as provided in these Terms of Service, FamilyWise retains all rights in the Services
Except for your User Content, the Services and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content (the “FamilyWise Content”), and all Intellectual Property Rights related thereto, are the exclusive property of FamilyWise and its licensors. Except as explicitly provided herein, nothing in these Terms of Service shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Services. Use of the FamilyWise Content or materials on the Services for any purpose not expressly permitted by these Terms of Service is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Services, including without limitation about how to improve the Services or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place FamilyWise under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, FamilyWise does not waive any rights to use similar or related ideas previously known to FamilyWise, or developed by its employees, or obtained from sources other than you.
10. You agree to pay us in accordance with our terms of sale
Certain aspects of the Services may be provided for a fee or other charge. If you elect to use paid aspects of the Services, you agree to the terms of sale, pricing, payment and billing policies applicable to such fees and charges. FamilyWise may add new services for additional fees and charges, or amend fees and charges for existing services, at any time in its sole discretion. You authorize FamilyWise to charge your credit card for all fees and charges incurred in connection with your use of the Services, including fees to FamilyWise, government fees, taxes and other third party fees.
If you register with us, you may cancel your account at any time; however, there are no refunds for cancellation. In the event that FamilyWise suspends or terminates your account or these Terms of Service, you understand and agree that you shall receive no refund or exchange for any FamilyWise Content, any unused time or service on a subscription, any license or subscription fees for any portion of the Services, any content or data associated with your account, or for anything else.
You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Services at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.
11. You provide us your data at your own risk and consent to have it processed in the United States
12. DMCA Notice
We respect content owner rights and it is the policy of FamilyWise 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 Services, please notify the FamilyWise 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:
- An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
- Identification of the copyrighted work that you claim has been infringed;
- Identification of the material that is claimed to be infringing and where it is located on the Services;
- Information reasonably sufficient to permit FamilyWise to contact you, such as your address, telephone number, and, e-mail address;
- 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 owner, its agent, or law;
- A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the physical addressed currently listed on FamilyWise.com. If you are unable to find one, please contact us at firstname.lastname@example.org
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 FamilyWise and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with the rights and obligations of FamilyWise 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, FamilyWise has adopted a policy of terminating, in appropriate circumstances and at the sole discretion of FamilyWise, members who are deemed to be repeat infringers. FamilyWise may also at its sole discretion limit access to the Services and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
13. Third party services
14. You Agree to Indemnify Us
You agree to defend, indemnify and hold harmless FamilyWise and its agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Services, including any data or content transmitted or received by you; (ii) your violation of any term of these Terms of Service, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (iv) your violation of any law, rule or regulation of the United States or any other country; (v) any claim or damages that arise as a result of any of your User Content or any that is submitted via your account; or (vi) any other party’s access and use of the Services with your unique username, password or other appropriate security code.
15. No Warranty
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FAMILYWISE OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, FAMILYWISE AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICES.
FAMILYWISE DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE FAMILYWISE SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE, AND FAMILYWISE WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
16. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FAMILYWISE, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICES. UNDER NO CIRCUMSTANCES WILL FAMILYWISE BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FAMILYWISE ASSUMES NO LIABILITY OR RESPONSIBILITY FOR (I) ANY ERRORS, MISTAKES, OMISSIONS OR INACCURACIES OF CONTENT; (II) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICES; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY; (VI) ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES; AND/OR (VII) ANY USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. FAMILYWISE EXPLICITLY DISCLAIMS ANY AND ALL LIABILITY AND/OR RESPONSIBILITY FOR ANY DISCLOSURE OF INFORMATION THAT MAY BE DEEMED CONFIDENTIAL BY YOU OR ANY THIRD PARTY. IN NO EVENT SHALL FAMILYWISE, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO FAMILYWISE HEREUNDER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF FAMILYWISE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
17. FamilyWise Services are directed to users in the United States
The Services are controlled and operated from the United States. FamilyWise makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable local laws and regulations, including but not limited to export and import regulations. You may not use the Services if you are a resident outside the United States, of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Services are solely directed to individuals, companies, or other entities located in the United States.
18. These Terms of Service are assignable only by FamilyWise
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be transferred or assigned by FamilyWise without restriction.
19. Controlling Law and Jurisdiction
You agree that: (i) the Services shall be deemed solely based in California; and (ii) the Services shall be deemed passive that do not give rise to personal jurisdiction over FamilyWise, either specific or general, in jurisdictions other than California. You expressly agree that your rights and obligations, these Terms of Service and any disputes shall be governed by and interpreted in accordance with the laws of the state of California, excluding its choice of law rules. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Any claim or dispute between you and FamilyWise that arises in whole or in part from the Services shall be decided exclusively by a court of competent jurisdiction located in San Francisco, California, unless submitted to arbitration as set forth in the following paragraph. You also acknowledge and agree that you and FamilyWise are each waiving the right to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and FamilyWise otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding.
20. Dispute Resolution
You and FamilyWise agree that any dispute, claim or controversy arising out of or relating to these Terms of Service or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Services or use of the Site (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. You acknowledge and agree that you and FamilyWise are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and FamilyWise otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms of Service.
21. Arbitration Rules and Governing Law
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
- Arbitration Process
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
- Arbitration Location and Procedure
Unless you and FamilyWise otherwise agree, the arbitration will be conducted in San Francisco, California. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and FamilyWise submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
- Arbitrator’s Decision
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
Notwithstanding the provisions of the “Modifications to Terms of Service” section above, if FamilyWise changes this “Dispute Resolution” section after the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service), you may reject any such change by sending us written notice (including by email) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of the email from FamilyWise to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and FamilyWise in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
- Notification procedures
FamilyWise may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through conspicuous posting of such notice on our web site, as determined by FamilyWise in our sole discretion. FamilyWise reserves the right to determine the form and means of providing notifications to our users. FamilyWise is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. We recommend that you add info@FamilyWise.com to your email address book to help ensure you receive email notifications from us.
This is our entire agreement and if any portion is deemed invalid, the remaining provisions are valid
This Agreement, together with any amendments and any additional agreements you may enter into with FamilyWise in connection with the Service, shall constitute the entire agreement between you and FamilyWise concerning the Services. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
No waiver of any term of these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and failure by FamilyWise to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision.
22. Additional Disclosures
No waiver by either you or FamilyWise of any breach or default or failure to exercise any right allowed under these Terms of Service is a waiver of any preceding or subsequent breach or default or a waiver or forfeiture of any similar or future rights under our Terms of Service. The section headings used herein are for convenience only and shall be of no legal force or effect.
You are contracting with FamilyWise, Inc. Correspondence should be directed to: FamilyWise, Inc., at the address listed on the company’s website.
If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
The provisions of these Terms of Services apply equally to and are for the benefit of FamilyWise, its subsidiaries, affiliates, and licensors, and each shall have the right to assert and enforce such provisions directly.