Advocately Terms of Service
LAST UPDATED: Dec 24th, 2016
PLEASE NOTE THAT THIS AGREEMENT IS SUBJECT TO CHANGE BY ADVOCATELY IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Advocately will make a new copy of this Agreement available at the Website, or through, the affected Service on the Website. Advocately will also update the “Last Updated” date at the top of this Agreement. If Advocately makes any material changes, and you have registered with us to create an Account (as defined in Section 2 below) Advocately will also send an e-mail to you at the last e-mail address you provided to us pursuant to this Agreement. Any changes to this Agreement will be effective immediately for new users of the Website, and/or Services and will be effective thirty (30) days after posting notice of such changes on the Website for existing users, provided that any material changes shall be effective for users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to users that have registered for an Account. Advocately may require you to provide consent to the updated Terms in a specified manner before further use of the Website, the Application and/ or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website, the Application and/or the Services. Otherwise, your continued use of the Website, the Application and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
1. ADVOCATELY SERVICES
1.1 Advocately Services. The Services enable users to, among other things, build and manage a database of their more successful users and mobilise them to drive more inbound leads. Subject to the terms and conditions of this Agreement, including your payment obligations, Advocately grants to You a non-exclusive, non-transferable license, during the term of this Agreement, to access and use the Services solely for your internal business purposes.
1.2 Advocately Software. Advocately’s Website may also make software and associated documentation available for download (“Software”). Any use of the Software is governed by the terms of the license agreement that accompanies or is included with the Software, or by the license agreement expressly stated on the Website page(s) accompanying the Software. These license terms may be posted with the Software downloads or at the Website page where the Software can be accessed. You shall not use, download or install any Software that is accompanied by or includes a license agreement unless you agree to the terms of such license agreement. At no time will Advocately provide you with any tangible copy of our Software. Advocately shall deliver access to the Software via electronic transfer or download and shall not use or deliver any tangible media in connection with the (a) delivery, installation, updating or problem resolution of any Software (including any new releases); or (b) delivery, correction or updating of documentation. For the purposes of this section tangible media shall include, but not be limited to, any tape disk, compact disk, card, flash drive, or any other comparable physical medium. Unless the accompanying license agreement expressly allows otherwise, any copying or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, or redistribution or use on a service bureau basis. If there is any conflict between this Agreement and the license agreement, the license agreement shall take precedence in relation to that Software (except as provided in the following sentence). If the Software is a pre-release version, then, notwithstanding anything to the contrary included within an accompanying license agreement, you are not permitted to use or otherwise rely on the Software for any commercial or production purposes. If no license agreement accompanies use of the Software, use of the Software will be governed by this Agreement. Subject to your compliance with this Agreement, Advocately grants you a non-assignable, non-transferable, non-sublicensable, revocable non-exclusive license to use the Software for the sole purpose of enabling you to use the Services in the manner permitted by this Agreement. Some Software may be offered under an open source license that we will make available to you. There may be provisions in the open source license that expressly override some of these terms.
1.3 Authorized Users. You may permit any Authorized Users (as defined below) to access and use the features and functions of the Service as contemplated by this Agreement. Each Authorized User will be assigned a unique user identification name and password (“User ID”) for access to and use of the Service. User IDs cannot be shared or used by more than one Authorized User at a time. If you wish to add additional User IDs, you may order such additional User IDs at any time by registering for additional user accounts via the Website. Upon written acceptance by Advocately, Advocately shall make the Service(s) available to the additional Authorized Users. As used herein, “Authorized User” means any individual who is your employee or such other person or entity that has been authorized to access the Service pursuant to your rights under this Agreement, through the purchase of a user seat via the Website.
1.4 Limitations. You will not, and will not permit any Authorized User or other party to: (a) access or copy any data or information of other Advocately subscribers without their consent; (b) knowingly interfere with or disrupt the integrity or performance of the Service or the data contained therein; (c) harass or interfere with another subscriber’s use and enjoyment of the Service or Software; (d) reverse engineer, disassemble or decompile any component of the Service or Software; (e) interfere in any manner with the operation of the Service, or the hardware and network used to operate the Service; (f) sublicense any of your rights under this Agreement, or otherwise use the Service or Software for the benefit of a third party or to operate a service bureau; (g) modify, copy or make derivative works based on any part of the Software or Service; or (j) otherwise use the Service in any manner that exceeds the scope of use permitted under this Agreement. You acknowledges and agrees that the Service will not be used, and are not licensed for use, in connection with any of your time-critical or mission-critical functions.
2. REGISTRATION. In order to access certain features of the Service and Software, you may be required to register for an account on the Website (“Account”). In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to (1) notify Advocately immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Advocately has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Advocately has the right to suspend or terminate your Account and refuse any and all current or future use of the Website, Software and Services (or any portion thereof).
3. FEES AND EXPENSES; PAYMENTS
3.1 Fees and Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide Advocately with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”), or purchase order information as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not this Agreement to determine your rights and liabilities. By providing Advocately with your credit card number and associated payment information, you agree that Advocately is authorized to immediately invoice your Account for all fees and charges due and payable to Advocately hereunder and that no additional notice or consent is required. You agree to immediately notify Advocately of any change in your billing address or the credit card used for payment hereunder. Advocately reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Website or Services or by e-mail delivery to you.
3.2 Service Subscription Fees. You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you create your Account and select your monthly or annual package, as applicable (each, a “Service Commencement Date”). Except as set forth in this Agreement, all fees for the Services are non-refundable. No contract will exist between you and Advocately for the Services until Advocately accepts your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication. Your subscription will continue indefinitely until terminated in accordance with this Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each, a “Renewal Commencement Date”) and continue for an additional equivalent period, at Advocately’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at any time prior to the Renewal Commencement Date by logging into and going to the Account settings page. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize Advocately to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Advocately does not receive payment from your Payment Provider, (i) you agree to pay all amounts due on your Account upon demand, and/or (ii) you agree that Advocately may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
3.3 Taxes. Advocately’s fees are net of any applicable Sales Tax. If any Services or Software, or payments for any Services or Software, under this Agreement are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Advocately, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Advocately for any liability or expense Advocately may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Advocately is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
3.4 Free Trials and Other Promotions. Any free trial or other promotion that provides access to the Services must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable subscription fee. If you are inadvertently charged for a subscription, please contact Advocately to have the charges reversed.
4. OWNERSHIP; LICENSES
4.1 Advocately Ownership. As between Advocately and you, the Services, Website, Software and all content therein (excluding Your Content) (collectively, the “Advocately Properties”) and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Advocately and its suppliers. All rights in and to Advocately Properties not expressly granted to you in this Agreement are reserved by Advocately and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to you regarding Advocately Properties or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the Software.
4.2 Your Content. Advocately acknowledges and agrees that you are, as between Advocately and you, the exclusive owner of the content, information, reviews, users and other data uploaded by you to the Service or Software (collectively, “Your Content”). In order to enable Advocately to provide the Services to you, you hereby grant Advocately a non-exclusive, worldwide, royalty-free and fully paid license to use the Your Content as necessary for purposes of providing the Services; provided that Advocately may use information related to your Users on an aggregated and anonymized basis, including data pertaining to types of Users, Review submission and average time spent working on Users.
5. WARRANTIES AND DISCLAIMERS
5.1 By You. You represent and warrant to Advocately that (a) you have the authority to enter into this Agreement personally (if you are a natural person), or on behalf of the entity entering into this Agreement, and to bind that entity, and (b) that Your Content does not (i) infringe any copyright, trademark, or patent; (ii) misappropriate any trade secret; (iii) be deceptive, defamatory, obscene, pornographic or unlawful; (iv) contain any viruses, worms or other malicious computer programming codes intended to damage Advocately’s system or data; or (v) otherwise violate the rights of a third party. Advocately is not obligated to back up any Your Content; you are solely responsible for creating backup copies of any Your Content at your sole cost and expense. You agree that any use of the Services contrary to or in violation of the representations and warranties made by you in this section constitutes unauthorized and improper use of the Services.
5.2 Disclaimer. Advocately will use commercially reasonable efforts to ensure that the services are available on a 99.9% basis. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WEBSITE AND SERVICES ARE PROVIDED “AS IS,” AND ADVOCATELY MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE RAW DATA, DOCUMENTATION, OR SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO YOU BY ADVOCATELY. ADVOCATELY DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICES SHALL BE UNINTERRUPTED, SECURE, OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
6.1 By Advocately. Advocately will defend at its expense any suit brought against you, and will pay any settlment Advocatelys makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Service or Website infringes, misappropriates or violates any U.S. intellectual property rights. If any portion of the Service becomes, or in Advocately’s opinion is likely to become, the subject of a claim of infringement, Advocately may, at its option: (a) procure for you the right to continue using the Service; (b) replace the Service with non-infringing software or services which do not materially impair the functionality of the Service; (c) modify the Service so that it becomes non-infringing; or (d) terminate this Agreement and refund any fees actually paid by you to Advocately for the remainder of the term then in effect, and upon such termination, you will immediately cease all use of the Service. Notwithstanding the foregoing, Advocately shall have no obligation under this subsection with respect to any infringement claim based upon (i) use of the Service not in accordance with this Agreement; or (ii) Your Content. This subsection states your sole and exclusive remedy and the entire liability of Advocately, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims or actions.
6.2 By You. You will defend, at your expense any suit brought against Advocately, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Advocately Parties”) and will pay any settlement you make or approve, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party based on: (a) Your Content; (b) your violation of this Agreement; (c) your violation of any rights of another party; or (d) your violation of any applicable laws, rules or regulations. Advocately reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Advocately in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, this Agreement or your access to the Advocately Properties.
6.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
7. LIMITATION OF LIABILITY
7.1 Disclaimer of Certain Damages. THE PARTIES UNDERSTAND AND AGREE THAT IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE ADVOCATELY PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE OR EMOTIONAL DISTRESS, WHETHER OR NOT ADVOCATELY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
7.2 Cap on Liability. EXCLUDING EACH PARTY’S INDEMNIFICATION OBLIGATIONS, UNDER NO CIRCUMSTANCES WILL THE ADVOCATELY PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY THE ADVOCATELY AS A RESULT OF YOUR USE OF THE ADVOCATELY PROPERTIES IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO LIABILITY HEREUNDER.
7.3 Your Content. THE ADVOCATELY PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
7.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ADVOCATELY AND YOU.
8. TERM AND TERMINATION.
8.1 Term. This Agreement commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Advocately Properties, unless terminated earlier in accordance with this Agreement.
8.2 Prior Use. Notwithstanding the foregoing, if you used the Advocately Properties prior to the date you accepted this Agreement, you hereby acknowledge and agree that this Agreement commenced on the date you first used the Advocately Properties (whichever is earlier) and will remain in full force and effect while you use the Advocately Properties, unless earlier terminated in accordance with this Agreement.
8.3 Termination of Services by Advocately. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of this Agreement, or if Advocately is required to do so by law (e.g., where the provision of the Website, the Software or the Services is, or becomes, unlawful), Advocately has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Advocately’s sole discretion and that Advocately shall not be liable to you or any third party for any termination of your Account.
8.4 Termination of Services by You. If you want to terminate the Services provided by Advocately, you may do so by (a) notifying Advocately at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Advocately's address set forth below.
8.5 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Advocately will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of this Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
9.1 Violations. If Advocately becomes aware of any possible violations by you of this Agreement, Advocately reserves the right to investigate such violations. If, as a result of the investigation, Advocately believes that criminal activity has occurred, Advocately reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Advocately is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Advocately Properties, including Your Content, in Advocately’s possession in connection with your use of the Advocately Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce this Agreement, (3) respond to any claims that Your Content violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Advocately, its users or the public, and all enforcement or other government officials, as Advocately in its sole discretion believes to be necessary or appropriate.
9.2 Breach. In the event that Advocately determines, in its sole discretion, that you have breached any portion of this Agreement, or have otherwise demonstrated conduct inappropriate for the Advocately Properties, Advocately reserves the right to:
(a) Warn you via e-mail (to any e-mail address you have provided to Advocately) that you have violated this Agreement;
(b) Delete any of Your Content provided by you or your agent(s) to the Advocately Properties;
(c) Discontinue your registration(s) with the any of the Advocately Properties;
(d) Discontinue your subscription to any Services;
(e) Pursue any other action which Advocately deems to be appropriate.
9.3 No Subsequent Registration. If your registration(s) with or ability to access the Advocately Properties is discontinued by Advocately due to your violation of any portion of this Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Advocately Properties through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Advocately Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Advocately reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
10. GENERAL PROVISIONS
10.1 Electronic Communications. The communications between you and Advocately use electronic means, whether you visit the Advocately Properties or send Advocately e-mails, or whether Advocately posts notices on the Advocately Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Advocately in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Advocately provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
10.2 Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Advocately’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
10.3 Force Majeure. Advocately shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
10.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Advocately Properties, please contact us at: firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
10.5 Limitations Period. YOU AND ADVOCATELY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE ADVOCATELY PROPERTIES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
10.6 Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this Section 106 (“Arbitration Agreement”) carefully. It is part of your contract with Advocately and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement or the use of any product or service provided by Advocately that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and Advocately, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under this Agreement.
(b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Advocately should be sent to: 465 10th St #203 San Francisco, CA 94103. After the Notice is received, you and Advocately will attempt to resolve the claim or dispute informally. If you and Advocately do not resolve the claim or dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(c) Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with this Agreement. The AAA Commercial Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a three, neutral arbitrators. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in Wilmington, Delaware, unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider.
(d) Additional Rules for Non-appearance Based Arbitration: If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
(e) Time Limits. If you or Advocately pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
(f) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Advocately, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and this Agreement. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Advocately.
(g) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Advocately in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND ADVOCATELY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
(i) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This Paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(j) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
(k) Right to Waive. Any or all of the rights and limitations set forth in this Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or effect any other portion of this Agreement.
(l) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Advocately.
(m) Small Claims Court. Notwithstanding the foregoing, either you or Advocately may bring an individual action in small claims court.
(n) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
(o) Claims Not Subject To Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement.
(p) Courts. In any circumstances where the foregoing Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within San Mateo, California for such purpose.
10.7 Governing Law. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
10.8 Notice. Where Advocately requires that you provide an e-mail address, you are responsible for providing Advocately with your most current e-mail address. In the event that the last e-mail address you provided to Advocately is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, Advocately’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Advocately at the following address: 465 10th St #203 San Francisco, CA 94103. Such notice shall be deemed given when received by Advocately by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
10.9 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
10.10 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
10.11 Export Control. You may not use, export, import, or transfer the Advocately Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Advocately Properties, and any other applicable laws. In particular, but without limitation, the Advocately Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Advocately Properties, 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 also will not use the Advocately Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Advocately are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Advocately products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
10.12 Entire Agreement. This Agreement are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.