SUBSTI2UTE, LLC
CLASSICLE TERMS OF USE
Last Updated August 31, 2020
These Terms of Use and any terms expressly incorporated herein (these “Terms”) apply to any access to, or use of, any services made available by Substi2ute, LLC, d/b/a Classicle, together with its subsidiaries and affiliates (“Classicle”, “we”, “us” or “our”), including without limitation, our website (https://classicle.com/), and any software and any information or services made available therein or to you in connection with the same (collectively, the “Services”). For the purposes of these Terms, the terms “you”, “your”, and “yourself” means you as the user of the Services.
These Terms form a legally binding agreement between you and us. Please take the time to read these terms carefully. These Terms should be read in conjunction with Classicle’s Privacy Policy (our “Privacy Policy”), as the same may be updated, from time to time, which can be found at (https://classicle.com/privacy-policy).
BY USING THE SERVICES, YOU ARE AGREEING TO THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, PLEASE DO NOT ACCESS OR USE THE SERVICES.
ARBITRATION NOTICE: THESE TERMS CONTAIN AN ARBITRATION CLAUSE. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT ARBITRATION CLAUSE, YOU AND CLASSICLE AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU AND CLASSICLE WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
2.1 Classicle Services. Classicle is a communications platform that permits and enables those seeking to hire education or childcare service providers (“Clients”) to post service opportunities (“Opportunities”) and connect Clients with those who provide education or childcare services (“Providers”) to accept such Opportunities. Clients may also connect with other similar Clients to form in-person groups (“Pods”) and create Opportunities as Pods. Providers and Clients together are hereinafter referred to as “Users”.
2.2 Classicle Operates as a Marketplace.
(a) Classicle operates as an online marketplace that connects Clients with Providers who wish to perform a variety of Opportunities and with other Clients to form Pods who wish to have Opportunities performed by Providers. Classicle does not perform Opportunities and does not employ or contract with people to perform Opportunities. Providers operate independently of Classicle. Classicle does not control or direct the Providers’ performance of their services or set their work locations or work hours. Providers provide services under their own name or business name, and not under Classicle’s name. Classicle does not provide any tools or supplies used by Providers or Clients in connection with the provision of services by Providers or otherwise. Providers are free to maintain a clientele without any restrictions from Classicle and are free to offer and provide their services elsewhere, including through competing platforms. Classicle does not set Providers’ hours or terms of work. Providers are free to accept or reject Clients and User Agreements (as defined below). Providers are not penalized for rejecting Clients or User Agreements. Providers set their own rates for services, including for any engagements obtained through the Classicle general marketplace, without deduction by Classicle.
(b) Classicle is not an employment agency service or business. Classicle is not an employer of any User, and neither these Terms nor a Provider’s use of the Services create an independent contractor, employee/employer, partnership, joint venture, or franchiser-franchisee relationship between any Provider and Classicle. A Provider that accepts an Opportunity will be an independent contractor or employee of its Client(s) only and not an independent contractor or employee of Classicle for any purposes. Providers acknowledge and confirm that they are responsible for exercising their own business judgment in entering into User Agreements and performing Opportunities and that, depending on how they exercise such business judgment, there is a chance for individual profit or loss. Users are solely responsible for all taxes relating to income derived from Opportunities and User Agreements.
2.3 Agreements Between Users.
(a) You may determine, in your sole discretion, to establish a relationship or enter into an agreement with another User (a “User Agreement”), and in so doing Users alone — without involvement from Classicle — are responsible for setting the parameters, terms and conditions of the User Agreement and the underlying Opportunity. The terms and conditions of the User Agreement and any other contractual terms and conditions accepted by both the Provider and their Client(s), do not expand Classicle’s obligations or restrict Classicle’s rights under these Terms.
Classicle is not a party to or bound by any User Agreement and the formation of a User Agreement will not, under any circumstances, create any legal or contractual obligation, or any employment or other service relationship of any kind, between Classicle and any Provider or Client. Users do not have any authority to enter into written or oral — whether implied or express — contracts on behalf of Classicle or to bind Classicle to any obligation whatsoever. Classicle is not responsible for collecting or distributing any payments in connection with a User Agreement. Classicle does not monitor, enforce or guaranty the performance or quality of performance by Users. Clients are solely responsible for any and all compliance with all applicable employment and other laws in connection with any employment or other relationship they establish (including without limitation all applicable laws pertaining to payroll, tax and wages, and verifying the age and eligibility to work in the United States of any Provider selected). Classicle has no role beyond enabling connections between Clients and Providers via its web-based communications platform. Classicle disclaims any other agency or authority to act on behalf of any Provider or Client, and assumes no liability or responsibility for any acts or omissions of any Provider or Client, either within or outside of the Services.
(b) While using the Services, Clients, in their sole discretion, are responsible for determining the suitability of any Providers or other Clients they connect with regarding Opportunities and are responsible for investigating the adequacy of any Provider. Classicle neither refers nor recommends Providers or Clients. Clients are solely responsible for selecting the right Providers for their Opportunities. As well, Providers are solely responsible for selecting Opportunities. In making the decision to engage a Provider, Clients should review and investigate each Provider’s self-reported credentials, education, and experience, and conduct such other investigations as Client determines to be appropriate. Classicle does not have control over, and makes no representations or warranties of any kind whatsoever regarding, the fitness, suitability, reliability or any other aspect of services provided by Providers, or of the responsibility, honesty, reliability, actions or omissions of Providers or Clients. Classicle is not responsible for the conduct of Providers, occurring by means of access to the Services, in performing any Opportunities, or otherwise.
(c) Clients, in their sole discretion, must determine whether they will be present or not when an Opportunity is performed. Clients acknowledge and agree that Classicle has no role in, and assumes no responsibility or liability whatsoever in connection with, the provision of services by Providers. Classicle is not required to, and does not, monitor, and is no way responsible for, the performance or conduct of Users in connection with any User Agreement or Opportunity. Users are solely responsible for assuring their own safety (and the safety of any persons for whom they seek or book Opportunities, including, but not limited to, children), and are encouraged to exercise good judgment and take appropriate precautions in utilizing the Services, booking Opportunities or conducting any in-person meetings with another User.
(d) Client and Provider acknowledge and agree that the Client (or if applicable the Pod), and not Classicle, is responsible for all payments due or payable to their Provider(s) in connection with all Opportunity services, via the method and at the rates agreed to by the Client (or if applicable the Pod) and Provider in the User Agreement. Providers are responsible for billing their Clients and collecting for the services that they provide. No Client or Provider will look to Classicle for any payment of any kind in connection with any User Agreement or Opportunity. Each User agrees to comply with the User Agreement and these Terms during the engagement, performance and completion of an Opportunity.
3.1 Account Eligibility.
(a) By using the Services, you state that you are above the age of 18 years old. No one under the age of 18 years old is allowed to create an Account (as defined below) or use the Services. Additionally, we must not have previously disabled your account for a violation of law or any of our policies. By using the Services, you will comply with these Terms and all applicable local, state, national, and international laws, rules, and regulations. If you are accepting these Terms on behalf of another legal entity, including a business or a government, you represent that you have full legal authority to bind such entity to these Terms.
(b) The Services are based in the United States and are provided primarily for access and use by persons located in the United States. While you may have the ability to access the Services from outside the United States, we are not responsible for compliance with local laws, customs, or directives outside of the United States. You acknowledge that you may not be able to access the Services outside of the United States and that access outside of the United States may not be legal by certain persons or in certain countries. If you access the Services from outside the United States, you are responsible for compliance with local laws.
3.2 Account Activation. To access and use the Services, you must register and establish an account (an “Account”). To register for an Account, you must: (i) be at least eighteen (18) years of age or older; (ii) have paid the applicable sign-up fee (if any); (iii) complete the Account registration form, providing true, accurate, current and complete information in the form requested by us (collectively, the “Registration Data”); and (iv) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. Although Classicle is not responsible for verifying Registration Data, if Classicle has reasonable grounds to suspect that any of your Registration Data is untrue, inaccurate, stale or incomplete, Classicle may suspend or terminate your Account and prohibit you from accessing or using the Services.
3.3 Account Responsibility. You are solely responsible for any and all activities conducted under your Account. You agree to notify us immediately of any unauthorized use or any other breach of security on your Account. We shall not be liable for any loss incurred in connection with or resulting from any party’s unauthorized use of a password or an Account. You acknowledge and agree that losses incurred by us or another party due to the unauthorized use of your Account or password are solely at your liability — accordingly, you are solely responsible for maintaining the confidentiality of your Account password, username, and any other credentials relating to your Account. Unauthorized use of another User’s Account or password is strictly prohibited.
3.4 Number of Accounts. You agree that you will not create more than one Account or create an Account for anyone other than yourself.
3.5 Platform Fees.
(a) When you create an Account, you agree to pay the applicable fees for the Services (the “Platform Fees”). All applicable taxes are calculated based on the billing information that you provide to us at the time of purchase. Unless otherwise denoted, all Platform Fees are assessed in U.S. Dollars ($). Failure to pay may result in the termination of your Account. Unless expressly stated to the contrary, Classicle does not provide refunds for lack of usage, dissatisfaction or any other reason.
(b) All financial transactions made in connection with the Services will be processed by Stripe, Inc. (“Stripe”) (or such other provider as we may select, from time to time) in accordance with their respective terms of use, privacy policy, and/or any applicable payment terms and conditions. You agree to provide us accurate and complete information about you, and you authorize us to share it and transaction information related to your use of the payment processing services provided by Stripe. We assume no liability or responsibility for any payments you may make through this service, and all such payments are non-refundable.
3.6 Disabling Accounts. Classicle reserves the right to disable your Account at any time, including if you have failed to comply with any of the provisions of these Terms, or if activities occur on your Account which, in our sole discretion, would or might cause damage to or impair the Services or infringe or violate any third party rights, or violate any applicable laws or regulations.
3.7 Account Deletion. If you no longer want to use our Services and would like your Account to be deleted, please contact Classicle via email at support@classicle.com and Classicle will provide you with further assistance and guide you through the process. Once you choose to delete your Account, you will not be able to reactivate your Account or retrieve any of the content or information you have added, unless permitted by law.
4.1 Public Areas.
(a) The Services may contain profiles, email systems, blogs, message boards, reviews, ratings, Opportunity postings, chat areas, news groups, forums, communities and/or other message or communication facilities (“Public Areas”) that allow Users to communicate with other Users. You may only use such community areas to send and receive messages and materials that are relevant and proper to the applicable forum. For the safety and integrity of the Services, you should not share your personal contact information with other Users.
(b) You understand that all submissions made to Public Areas will be public and that you will be publicly identified by your name or login identification when communicating in Public Areas. Classicle will not be responsible for the action of any Users with respect to any information or materials posted in Public Areas.
4.2 Acceptable Use.
(a) Your access to and use of the Services is subject to these Terms and all applicable laws and regulations. By using the Services, you represent, warrant, covenant, and agree that:
(i) You will not access or use the Services if you are not fully able and legally competent to agree to these Terms;
(ii) You will not create or submit User Content (as defined below) that violates these Terms or attempts to circumvent any content-filtering techniques we may use;
(iii) You will not use the Services to violate applicable law or infringe any person or entity’s intellectual property or any other proprietary rights;
(iv) You will not attempt to gain unauthorized access to another User’s Account or to the Services (or to other computer systems or networks connected to or used together with the Services);
(v) You will not upload, transmit, or distribute to or through the Services any computer viruses, worms, or other software intended to interfere with the intended operation of a computer system or data;
(vi) You will not use the Services to harvest, collect, gather or assemble information or data regarding the Services or Users of the Services except as permitted in these Terms or in a separate agreement with us;
(vii) You will not use the Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Services or that could damage, disable, overburden, or impair the functioning of the Services in any manner;
(viii) You will not intentionally negate any User’s actions to delete or edit their User Content on the Services;
(ix) You will not use any robot, spider, manual, meta tag, “hidden text”, agent, script, and/or automatic processes or devices to data-mine, data-crawl, scrape, collect, mine, re-publish, re-distribute, transmit, sell, license, download, manage or index the Services, or the electronic addresses or personal information of others, in any manner;
(x) You will not make unauthorized copies, modify, adapt, translate, reverse engineer, disassemble, decompile or create any derivative works of the Services or any content included therein, including any files, tables or documentation (or any portion thereof) or determine or attempt to determine any source code, algorithms, methods or techniques embodied by the Services or any derivative works thereof;
(xi) You will not distribute, license, transfer, or sell, in whole or in part, any of the Services or any derivative works thereof;
(xii) You will not market, rent or lease the Services for a fee or charge, or use the Services to advertise or perform any commercial solicitation;
(xiii) You will not use the Services, without our express written consent, for any commercial or unauthorized purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming;
(xiv) You will not upload content to the Services that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals;
(xv) You will not upload content that provides materials or access to materials that exploit people in an abusive, violent or sexual manner;
(xvi) You will not use the Services to solicit for any other business, website or service, or otherwise contact Users for employment, contracting or any purpose not related to use of the Services as set forth herein;
(xvii) You will not use the Services to collect usernames, email addresses, or other personal information of Users by electronic or other means;
(xviii) You will not use the Services in a manner that is false or misleading (directly or by omission or failure to update information), or for the purpose of accessing or otherwise obtaining Classicle’s trade secret information for public disclosure or other purposes;
(xix) You will not attempt to circumvent the Platform Fee in any way including, but not limited to, making or processing payments outside of the Services, providing inaccurate information on invoices, or otherwise invoicing in a fraudulent manner;
(xx) You will not register under different usernames or identities after your account has been suspended or terminated, or register under multiple usernames or false identities, or register using a false or disposable email or phone number;
(xxi) You will not impersonate any person or entity, or falsely state or otherwise misrepresent you or your affiliation with any person or entity, including giving the impression that any content you upload, post, transmit, distribute or otherwise make available emanates from the Services;
(xxii) You will not use the Services in a manner that may create a conflict of interest or undermine the purposes of the Services, such as trading reviews with other users or writing or soliciting fake reviews;
(xiiii) You will not use the Services to distribute any unsolicited or unauthorized advertising, solicitations, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any other prohibited form of solicitation.
(xxiv) You will not inquire about the hiring of or to hire Providers to complete academic assignments, write papers, take quizzes or otherwise do work on your behalf, or use Classicle’s Services for any purpose that violates the academic honesty policy or other conduct policies of your school, university, academic institution or workplace;
(xxv) If you are a Client, you agree to use the Services only for the following purposes: to post Opportunities to find Providers for yourself, your immediate family members or other persons over whom you are the legal guardian or otherwise have legal authority to make child care decisions, and to find other Clients with whom you may wish to enter into an arrangement for shared child care; and
(xxvi) If you are a Provider, you agree to use the Services only for the purpose of finding Opportunities for yourself.
(b) Classicle reserves the right, at any time and without prior notice, to remove or disable access to content at our discretion, for any reason or no reason. For example, Classicle may remove or disable access to content upon finding the content objectionable, in violation of these Terms, or otherwise harmful to the Services or our users.
(a) All Users represent and warrant to Classicle that:
(i) You are at least of the legally required age in the jurisdiction in which you reside (eighteen (18) years of age or older for U.S. based Users), and are otherwise capable of entering into legally binding contracts;
(ii) You have the right, authority and capacity to enter into these Terms and to abide by the terms and conditions contained herein, and that you will so abide;
(iii) You have read, understand, and agree to be bound by these Terms and the Privacy Policy;
(iv) You will respect the privacy (including, without limitation, private family and home life), property, and data protection rights of all other Users and will not record (whether video or audio or otherwise) any Opportunity or any interaction by or with any User and/or Classicle in connection with the Services, without the express prior written consent of Classicle and/or the relevant User, as applicable;
(v) You will act professionally, respectfully and responsibly in your interactions with other Users;
(vi) You will use your real name or business name and an up-to-date photo on your profile;
(vii) When using or accessing the Services, you will act in accordance with all applicable local, state, provincial, national, or international law or custom, and in good faith;
(viii) You will not use the Services for the purchase or delivery of alcohol, or any other controlled or illegal substances or services;
(ix) Where you enter into these Terms on behalf of a company or other organization, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to a legal agreement; and
(x) Other than as fully and promptly disclosed in writing to Classicle, you do not have any motivation, status, or interest that Classicle may reasonably wish to know about in connection with the Services, including, without limitation, if you are using or will or intend to use the Services for any journalistic, academic, investigative, or unlawful purpose.
(b) Providers additionally represent and warrant to Classicle that:
(i) When using the Services, you are operating as a sole proprietor, partnership, limited liability company, limited liability partnership, corporation or other business entity;
(ii) You have the unrestricted right to work in the jurisdiction in which you will be performing Opportunities;
(iii) If the Opportunity is performed in a jurisdiction that requires you to have a business license or business tax registration, you have the required business license or business tax registration;
(iv) You are responsible for identifying and obtaining any required licenses, permits, or registrations before offering services and undertaking Opportunities;
(v) You have any and all insurance required to operate your business and provide your services;
(vi) You will act professionally, respectfully and responsibly in your interactions with other Users, including by responding to invitations promptly; and
(vii) You will only offer and provide services for which you have the necessary skills and expertise, and will provide those services safely and in accordance with all applicable laws.
6.1 Rights We Reserve for Ourselves. Classicle expressly and exclusively reserves for itself any and all registered and unregistered rights (whether or not registrable) granted, applied for, or otherwise now or hereafter in existence under or related to any patent or patentable subject matter, copyright or copyrightable subject matter, trademark or trademarkable subject matter, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world (the “Intellectual Property Rights”) that are created, generated, acquired, or used in connection with the Services. Nothing herein shall be deemed to grant any rights or licenses to our Intellectual Property Rights to you, except as is expressly required for you to use the Services (but not apart from your use thereof).
6.2 Rights You Grant Us.
(a) You hereby grant to Classicle a royalty-free, fully paid-up, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, copy, modify, create derivative works of, display, perform, publish and distribute, in any form, medium or manner, any text, information, data, materials, images, or other content you provide to Classicle using the Services or submit or post to the Services and that is not Feedback (as defined below) owned by Classicle (the “User Content”). You are solely responsible for User Content, and Classicle acts merely as a passive conduit for your online distribution and publication of your User Content. You acknowledge and agree that Classicle is not involved in the creation or development of User Content, disclaims any responsibility for User Content, and cannot be liable for claims arising out of or relating to User Content. Further, you acknowledge and agree that Classicle has no obligation to monitor or review User Content but reserves the right to limit or remove User Content if it is not compliant with the terms of this Agreement.
(b) You hereby represent and warrant to Classicle that your User Content (i) will not be false, inaccurate, incomplete or misleading; (ii) will not be fraudulent or involve the transfer or sale of illegal, counterfeit or stolen items; (iii) will not infringe on any third party’s privacy, or copyright, patent, trademark, trade secret or other proprietary right or rights of publicity or personality (to the extent recognized by law in the country where the Opportunity is performed); (iv) will not violate any law, statute, ordinance, code, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, incitement of hatred or false or misleading advertising, anti-spam or privacy); (v) will not be defamatory, libelous, malicious, threatening, or harassing; (vi) will not be obscene or contain pornography (including but not limited to child pornography) or be harmful to minors; (vii) will not contain any viruses, scripts such as Trojan Horses, SQL injections, worms, time bombs, corrupt files, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (viii) will not claim or suggest in any way that you are employed or directly engaged by or affiliated with Classicle or otherwise purport to act as a representative or agent of Classicle; and (ix) will not create liability for Classicle or cause Classicle to lose (in whole or in part) the services of its Internet Service Providers (ISPs) or other partners or suppliers.
(c) The Services hosts User Content relating to reviews and ratings of specific Providers (“Feedback”). Feedback is such User’s opinion and not the opinion of Classicle and has not been verified or approved by Classicle. You agree that Classicle is not responsible or liable for any Feedback or other User Content. Classicle encourages each User to give objective, constructive and honest Feedback about the other Users with whom they have transacted. Classicle is not obligated to investigate any remarks posted by Users for accuracy or reliability or to consider any statements or materials posted or submitted by Users about any Feedback but may do so at its discretion. You agree that Feedback enables Users to post and other Users to read about Users’ expression of their experiences and that you will not complain or take any action merely because you happen to disagree with such feedback.
(d) You agree that Classicle will own all Feedback and you hereby assign to Classicle all right, title and interest to Feedback together with all associated intellectual property rights. You will not be entitled to, and hereby waive any claim for, acknowledgment or compensation based on any Feedback or any modifications made based on any Feedback.
6.3 Rights We Grant You.
(a) Subject to your full compliance with these Terms and any other usage policies that Classicle may enact, from time to time, Classicle grants you a personal, non-exclusive, revocable, worldwide, royalty-free, non-assignable, non-transferrable, and non-sublicensable license to use the Classicle website for the sole purpose of accessing and using the Services.
(b) You may not copy, modify, distribute, sell, or lease any part of our Services, nor may you reverse engineer or attempt to extract the source code of that software, unless laws prohibit these restrictions or you have our written permission to do so.
6.4 Copyright Policy.
(a) Classicle honors copyright laws, including the Digital Millennium Copyright Act (17 U.S.C. § 512) (the “DMCA”). Classicle therefore takes reasonable steps to expeditiously remove from our Services any infringing material that it becomes aware of. If Classicle becomes aware that one of its Users has repeatedly infringed copyrights, Classicle will take reasonable steps, within our power, to terminate the User’s Account.
(b) Classicle makes it easy for you to report suspected copyright infringement. If you believe that anything on the Services infringes a copyright that you own or control, please report it by filing a notice with Classicle’s designated agent:
Substi2ute, LLC
Attn: Copyright Agent
4626 Wisconsin Ave. NW Suite 300
Washington. D.C. 20016
email: copyright@classicle.com
Note – Do not use this email address for anything other than reporting copyright infringement, as such emails will be ignored.
(c) If you file a notice with Classicle’s Copyright Agent, it must comply with the requirements set forth at 17 U.S.C. § 512(c)(3). That means the notice must:
(i) Contain the physical or electronic signature of a person authorized to act on behalf of the copyright owner;
(ii) Identify the copyrighted work claimed to have been infringed;
(iii) Identify 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, and information reasonably sufficient to let us locate the material;
(iv) Provide your contact information, including your address, telephone number, and an email address;
(vi) Provide a personal statement that you have a good-faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) Provide 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 copyright owner.
10.1 Closure of Your Account by You. You may close your Account by providing Classicle with written notice of your intent to do so at support@classicle.com. Upon our confirmation to you of the closure of your Account, you will have no further rights to access or use the Services.
10.2 Termination of Your Account by Us. Classicle may terminate your Account and/or Services access, at any time for any reason (or no reason), in Classicle’s sole and absolute discretion. Reasons for termination may include, but are not limited to, (i) violation of the Terms or of any terms and conditions or policies applicable to the Services or any of our other websites or service or those of its affiliates or partners; (ii) abuse of the Services resources or attempt to gain unauthorized entry to the Services or its resources; (iii) use of the Services in a manner inconsistent with its intended purpose as a user hereunder; or (iv) as required by law, regulation, court or governing agency order. The termination of your access to the Services may be effective immediately. Classicle shall not be liable to you or any other third party for termination of your Account.
10.3 Survival Upon Termination. Upon the closure of your Account by you or termination of the same by Classicle, you continue to be bound by those of these Terms that survive termination, either expressly or by virtue of reasonable construction of their nature.
(a) You acknowledge that Confidential Information (as defined below) is a valuable, special and unique asset of Classicle and agree that you will not, for the lifetime of your Account on Classicle plus ten (10) years thereafter, disclose, transfer, or use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than use of the Services in accordance with these Terms. If relevant, you may disclose the Confidential Information to your authorized employees and agents provided that they are also bound to maintain the confidentiality of Confidential Information. You will use your best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You will promptly notify Classicle, in writing, of any circumstances that may constitute unauthorized disclosure, transfer, or use of Confidential Information. You will return all originals and any copies of any and all materials containing Confidential Information to Classicle promptly upon deactivation of your Account or termination of these Terms for any reason whatsoever.
(b) The term “Confidential Information” means any and all of Classicle’s trade secrets, confidential and proprietary information, and all other information and data of Classicle that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical data, know-how, research, product plans, products, services, customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, strategic and other proprietary materials and confidential information relating to Classicle or Classicle’s business, operations or properties, including information about Classicle’s staff, Users or partners, or other business information disclosed or obtained directly or indirectly in writing, orally or by drawings or observation.
13.1 Disclaimer of Warranties. NEITHER CLASSICLE, ITS AFFILIATES, LICENSORS OR SUPPLIERS, NOR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, MEMBERS, MANAGERS, AGENTS, OR REPRESENTATIVES MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO YOU OR ANY OTHER PERSON OR ENTITY WITH RESPECT TO THE SERVICES, ANY ASSOCIATED SERVICES, OR OTHERWISE REGARDING THESE TERMS, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY. THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR THE PERMITTED USES SET FORTH HEREUNDER ONLY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. NO WARRANTY IS MADE THAT USE OF THE SERVICES WILL BE TIMELY, ERROR FREE, OR UNINTERRUPTED, THAT ANY ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED, OR THAT THE SERVICES WILL OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEMS OR DATA, WHETHER OR NOT PROVIDED BY CLASSICLE, OR THAT THE SERVICES FUNCTIONALITY WILL OTHERWISE MEET ANY SPECIFIC USER EXPECTATION OR USE CASE. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES AND YOUR RELIANCE UPON ANY OF ITS CONTENTS IS SOLELY AT YOUR OWN RISK AND RESPONSIBILITY. IN ADDITION TO AND WITHOUT LIMITING, THE FOREGOING, CLASSICLE MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES AS TO THE USEFULNESS, QUALITY, SUITABILITY, TRUTH, ACCURACY, OR COMPLETENESS OF THE SERVICES OR ANY SERVICES PROVIDED BY PROVIDERS, AND CLASSICLE WILL NOT BE RESPONSIBLE FOR AND EXPRESSLY DISCLAIMS ANY LIABILITY THAT MAY RESULT FROM THE USE OF ANY INFORMATION PROVIDED AS PART OF THE SERVICES OR OTHERWISE PROVIDED TO ANY PERSON BY ANY PROVIDER, CLIENT, OR OTHER USER.
13.2 Responsibility for Data. AS BETWEEN YOU AND US, YOU AGREE THAT YOU SHALL BE SOLELY AND FULLY RESPONSIBLE AND LIABLE FOR ANY DAMAGE, LOSS OF DATA, LOSS OF USER CONTENT, DISCLOSURE OF DATA, OR ANY IMPROPER USE OR DISCLOSURE OF INFORMATION CAUSED BY YOU OR ANY PERSON USING YOUR ACCOUNT. CLASSICLE CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY LOSS, DAMAGES OR LIABILITIES ARISING FROM THE FAILURE OF ANY INTERNET OR SERVER CONNECTION OR MIS-CONNECTION, OR FOR YOUR USE OR MISUSE OF ANY PERSONAL INFORMATION, ADVICE, IDEAS, INFORMATION, INSTRUCTIONS OR GUIDELINES ACCESSED THROUGH THE SERVICE.
13.3 Client Release. THE CLIENT AGREES AND ACKNOWLEDGES THAT PROVIDERS ARE INDEPENDENT PROVIDERS OF THEIR OWN SERVICES AND ARE NOT INDEPENDENT CONTRACTORS, EMPLOYEES, OR AGENTS OF CLASSICLE. CLASSICLE HAS NO CONTROL OVER PROVIDERS WHATSOEVER. AS SUCH, THE CLIENT WAIVES AND FOREVER RELEASES CLASSICLE FROM ANY CLAIMS OR DAMAGES WHICH MAY RESULT FROM ANY ACTIONS, OMISSIONS OR EVENTS OUTSIDE OF THESE TERMS (INCLUDING, WITHOUT LIMITATION ACTS AND OMISSIONS OF ANY PROVIDERS), AND INCLUDING, BUT NOT LIMITED TO, INJURIES, EMOTIONAL DAMAGES, PHYSICAL HARM, AND ALL OTHER CONSEQUENTIAL, INCIDENTIAL, EXEMPLARY, INDIRECT AND SPECIAL DAMAGES, ALL OF WHICH ARE EXPRESSLY EXCLUDED UNDER THESE TERMS.
15.1 Applicability of Arbitration Agreement. You and Classicle agree that all claims and disputes (whether contract, tort, or otherwise), including all statutory claims and disputes, arising out of or relating to these Terms or the use of the Services that cannot be resolved in small claims court will be resolved by binding arbitration on an individual basis, except that you and Classicle are not required to arbitrate any dispute in which either party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. For clarity: the phrase “all claims and disputes” also includes claims and disputes that arose between us before the effective date of these Terms.
15.2 Initiating Arbitration. Before you commence arbitration of a claim, you must provide us with a written notice (a “Notice of Dispute”) that includes your name, residence address, username, email address or phone number you use for your Account, a detailed description of the dispute, and the relief you seek. Any Notice of Dispute should be sent to us by mail to Substi2ute, LLC, ATTN: Arbitration Filing, 4626 Wisconsin Ave. NW Suite 300, Washington. D.C. 20016. Before we commence arbitration, we will send you a Notice of Dispute to the email address you use with your Account, or by other appropriate means. If we are unable to resolve a dispute within thirty (30) days after the Notice of Dispute is received, you or we may commence arbitration.
15.3 Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration will be initiated through JAMS and will be governed by their commercial arbitration rules, which are then in effect. If JAMS is not available to arbitrate, the parties will select an alternative customary arbitral mechanism. The rules of the arbitral mechanism will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms. The arbitration will be conducted by a single neutral arbitrator. The seat of arbitration shall be the District of Columbia (Washington, D.C.). Any claims or disputes where the total amount sought is less than $10,000 USD 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 sought is $10,000 USD or more, the right to a hearing will be determined by the arbitral forum’s rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
15.4 Additional Rules for Non-appearance Arbitration. If non-appearance arbitration is elected, the arbitration will be conducted by telephone, online, written submissions, or any combination of the three; the specific manner will be chosen by the party initiating the arbitration. The arbitration will not involve any personal appearance by the parties or witnesses unless the parties mutually agree otherwise.
15.5 Fees. We will pay all arbitration filing fees, administration and hearing costs, and arbitrator fees for any arbitration we bring, or if your claims seek less than $75,000 and you timely provided us with a Notice of Dispute. For all other claims, the costs and fees of arbitration shall be allocated in accordance with the arbitration provider’s rules, including rules regarding frivolous or improper claims.
15.6 Authority of the Arbitrator. The arbitrator will decide the rights and liabilities, if any, of you and Classicle. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under law, the arbitral forum’s rules, and the Terms. The arbitrator will 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 Classicle.
15.7 Waiver of Jury Trial. YOU AND CLASSICLE WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Classicle are instead electing to have claims and disputes resolved by arbitration. 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 any litigation between you and Classicle over whether to vacate or enforce an arbitration award, YOU AND CLASSICLE WAIVE ALL RIGHTS TO A JURY TRIAL and elect instead to have the dispute be resolved by a judge.
15.8 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. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in Section 17.1.
15.9 Right to Waive. Any rights and limitations set forth in this arbitration agreement may be waived by the party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this arbitration agreement.
15.10 Opt-out. You can opt out of this provision within thirty (30) days of the date that you agreed to these Terms. To opt out, you must send your name, residence address, username, email address or phone number you use for your Account, and a clear statement that you want to opt out of this arbitration agreement, and you must send them here: Substi2ute, LLC, ATTN: Arbitration Opt-out, 4710 41st St. NW Suite B, Washington, D.C. 20016.
15.11 Arbitration Agreement Survival. This arbitration agreement will survive the termination of your relationship with Classicle.
17.1 Governing Law. The interpretation and enforcement of these Terms, and any dispute related to these Terms or the Services, will be governed by and construed and enforced in accordance with the laws of the District of Columbia, without regard to conflict of law rules or principles (whether of the District of Columbia or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. You agree that we may initiate a proceeding related to the enforcement or validity of our Intellectual Property Rights in any court having jurisdiction. With respect to any other proceeding that is not subject to arbitration under these Terms, the federal and state courts located in the District of Columbia (Washington, D.C.) will have exclusive jurisdiction. You waive any objection to venue in any such courts.
17.2 No Conflicts. These Terms shall govern and any conflicting, inconsistent, or additional terms contained in such documents shall be null and void.
17.3 Assignment. These Terms are binding upon and inure to the benefit of the permitted successors and assigns of each party. You may not assign, subcontract, delegate or otherwise convey these Terms, or any of its rights and obligations hereunder. Notwithstanding anything to the contrary in these Terms, we may assign, transfer, and delegate this agreement (these Terms) and its obligations hereunder at any time, in its sole discretion.
17.4 Severability. If any provision of these Terms is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of any such provision in every other respect and the remaining provisions of these Terms will be unimpaired and these Terms will continue in full force and effect, unless the provisions held invalid, illegal, or unenforceable will substantially impair the benefits of the remaining provisions hereof.
17.5 Waiver. The failure of either party to insist upon strict performance or to seek remedy for breach of any term of these Terms, or to exercise any right, remedy or election herein or permitted by law or equity, will not constitute nor be construed as a waiver or relinquishment in the future of such term, condition, right, remedy, or election. Any consent, waiver, or approval by either party of any act or matter will not be effective unless made in writing and signed by an authorized representative of the consenting, waiving, or approving party.
17.6 Force Majeure. We will not be responsible or liable to you or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder (including the temporary unavailability or inaccessibility of the Services) where such failure is the result of Force Majeure. As defined herein, “Force Majeure” means any (a) acts of God, flood, fire, wind, storm, drought, earthquake, or other natural disaster; (b) epidemic, pandemic or other public health emergency; (c) terrorist attack, civil war, civil commotion or riot, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (d) nuclear, chemical or biological contamination, or sonic boom; (e) any law or any action taken by a government or public authority; (f) collapse of building, breakdown of plant or machinery, fire, explosion, or accident; (g) any labor or trade dispute, materials or transport, strike, industrial action or lockout; (h) interruption or failure of utility service; or (i) or any other cause, whether similar or dissimilar to those enumerated, that is beyond our reasonable control and without our fault or negligence.
17.7 No Third-Party Beneficiaries. These Terms are personal to you and to us, and no third party shall be considered a beneficiary hereof, for any purpose.
17.8 No Agency or Employment. No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by these Terms.
17.9 Equitable Relief. You acknowledge and agree that your breach of these Terms would cause irreparable harm to us, for which money damages alone would be inadequate. In addition to damages and any other remedies to which we may be entitled, you acknowledge and agree that we may seek and shall be entitled to injunctive relief hereunder to prevent the actual, threatened or continued breach of these Terms.
17.10 Entire Agreement; Order of Precedence. These Terms contain the entire agreement and supersede all prior and contemporaneous understandings between the parties regarding the Services. In the event of any conflict between these Terms and any other agreement you may have with us, these Terms will control unless the other agreement specifically identifies these Terms and declares that the other agreement supersedes these Terms.
17.11 Survival. Termination of these Terms will not affect the provisions that, by their nature, are intended to survive the termination hereof, including without limitation, Section 1, 5, 6, 8, 11, 12, 13, 14, 15, and 17.
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