The website located at www.chuttapp.com (the “Site”) is a
copyrighted work belonging to ChuttApp, Inc. (“Company”, “us”, “our”, and “we”). Certain features of the Site may be subject
to additional guidelines, terms, or rules, which will be posted on the Site in
connection with such features. All such
additional terms, guidelines, and rules are incorporated by reference into
these Terms.
These Terms of Use (these “Terms”) set
forth the legally binding terms and conditions that govern your use of the
Site. By accessing or using the Site,
you are accepting these Terms (on behalf of yourself or the entity that you
represent), and you represent and warrant that you have the right, authority,
and capacity to enter into these Terms (on behalf of yourself or the entity
that you represent). you may not access
or use the Site or accept the Terms if you are not at least 18 years old. If you do not agree with all of the
provisions of these Terms, do not access and/or use the Site.
PLEASE BE AWARE THAT SECTION 10.2 CONTAINS PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES
BETWEEN YOU AND COMPANY. AMONG OTHER THINGS, SECTION 10.2 INCLUDES
AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL
DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL
ARBITRATION. SECTION 10.2 ALSO
CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER.
PLEASE READ SECTION 10.2 CAREFULLY.
UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN
30 DAYS: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK
RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN
ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WAIVE YOUR RIGHT TO
PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU
ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT
OF LAW AND TO HAVE A JURY TRIAL.
1.1
Account
Creation. In order to use certain
features of the Site, you must register for an account (“Account”) and provide
certain information about yourself as prompted by the account registration
form. You represent and warrant that:
(a) all required registration information you submit is truthful and accurate;
(b) you will maintain the accuracy of such information. You
may delete your Account at any time, for any reason, by following the
instructions on the Site. Company may
suspend or terminate your Account in accordance with Section 8.
1.2
Account
Responsibilities. You are responsible
for maintaining the confidentiality of your Account login information and are
fully responsible for all activities that occur under your Account. You agree to immediately notify Company of
any unauthorized use, or suspected unauthorized use of your Account or any
other breach of security. Company cannot
and will not be liable for any loss or damage arising from your failure to
comply with the above requirements.
2.
Access to the Site
2.2
Certain
Restrictions. The rights granted to you
in these Terms are subject to the following restrictions: (a) you shall not
license, sell, rent, lease, transfer, assign, distribute, host, or otherwise
commercially exploit the Site, whether in whole or in part, or any content displayed
on the Site; (b) you shall not modify, make derivative works of, disassemble,
reverse compile or reverse engineer any part of the Site; (c) you shall not
access the Site in order to build a similar or competitive website, product, or
service; and (d) except as expressly stated herein, no part of the Site may be
copied, reproduced, distributed, republished, downloaded, displayed, posted or
transmitted in any form or by any means.
Unless otherwise indicated, any future release, update, or other
addition to functionality of the Site shall be subject to these Terms. All copyright and other proprietary notices
on the Site (or on any content displayed on the Site) must be retained on all
copies thereof.
2.5
Ownership. Excluding any User Content that you may
provide (defined below), you acknowledge that all the intellectual property
rights, including copyrights, patents, trade
marks, and trade secrets, in the Site and
its content are owned by Company or Company’s suppliers. Neither these Terms (nor your access to the
Site) transfers to you or any third party any rights, title or interest in or
to such intellectual property rights, except for the limited access rights
expressly set forth in Section 2.1. Company and its suppliers reserve
all rights not granted in these Terms.
There are no implied licenses granted under these Terms.
3.1
User
Content. “User Content” means any and
all information and content that a user submits to, or uses with, the Site
(e.g., content in the user’s profile or postings). You are solely responsible for your User
Content. You assume all risks associated
with use of your User Content, including any reliance on its accuracy,
completeness or usefulness by others, or any disclosure of your User Content
that personally identifies you or any third party. You hereby represent and warrant that your
User Content does not violate our Acceptable Use Policy (defined in Section 3.3).
You may not represent or imply to others that your User Content is in
any way provided, sponsored or endorsed by Company. Since you alone are responsible for your User
Content, you may expose yourself to liability if, for example, your User
Content violates the Acceptable Use Policy.
Company is not obligated to backup any User Content, and your User
Content may be deleted at any time without prior notice. You are solely responsible for creating and
maintaining your own backup copies of your User Content if you desire.
3.2
License. You hereby grant (and you represent and
warrant that you have the right to grant) to Company an irrevocable,
nonexclusive, royalty-free and fully paid, worldwide license to reproduce,
distribute, publicly display and perform, prepare derivative works of,
incorporate into other works, and otherwise use and exploit your User Content,
and to grant sublicenses of the foregoing rights, solely for the purposes of
including your User Content in the Site.
You hereby irrevocably waive (and agree to cause to be waived) any
claims and assertions of moral rights or attribution with respect to your User
Content.
3.3
Acceptable
Use Policy. The following terms constitute our “Acceptable
Use Policy”:
(a)
You
agree not to use the Site to collect, upload, transmit, display, or distribute
any User Content (i) that violates any third-party
right, including any copyright, trademark, patent, trade secret, moral right,
privacy right, right of publicity, or any other intellectual property or
proprietary right, (ii) that is unlawful, harassing, abusive, tortious,
threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false,
intentionally misleading, trade libelous, pornographic, obscene, patently
offensive, promotes racism, bigotry, hatred, or physical harm of any kind
against any group or individual or is otherwise objectionable, (iii) that is
harmful to minors in any way, or (iv) that is in violation of any law,
regulation, or obligations or restrictions imposed by any third party.
(b)
In
addition, you agree not to: (i) upload, transmit, or
distribute to or through the Site any computer viruses, worms, or any software
intended to damage or alter a computer system or data; (ii) send through the
Site unsolicited or unauthorized advertising, promotional materials, junk mail,
spam, chain letters, pyramid schemes, or any other form of duplicative or
unsolicited messages, whether commercial or otherwise; (iii) use the Site to harvest, collect, gather or
assemble information or data regarding other users, including e-mail addresses,
without their consent; (iv) interfere with, disrupt, or create an undue burden
on servers or networks connected to the Site, or violate the regulations,
policies or procedures of such networks; (v) attempt to gain unauthorized
access to the Site (or to other computer systems or networks connected to or
used together with the Site), whether through password mining or any other
means; (vi) harass or interfere with any other user’s use and enjoyment of the
Site; or (vi) use software or automated agents or scripts to produce multiple
accounts on the Site, or to generate automated searches, requests, or queries
to (or to strip, scrape, or mine data from) the Site (provided, however, that
we conditionally grant to the operators of public search engines revocable
permission to use spiders to copy materials from the Site 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, subject to the parameters set forth in our robots.txt file).
3.4
Enforcement. We
reserve the right (but have no obligation) to review, refuse and/or remove any
User Content in our sole discretion, and to investigate and/or take appropriate
action against you in our sole discretion if you violate the Acceptable Use
Policy or any other provision of these Terms or otherwise create liability for
us or any other person. Such action may include removing or modifying your User
Content, terminating your Account in accordance with Section 8,
and/or reporting you to law enforcement authorities.
4.
Indemnification. You agree to indemnify and hold Company (and its
officers, employees, and agents) harmless, including costs and attorneys’ fees,
from any claim or demand made by any third party due to or arising out of (a)
your use of the Site, (b) your violation of these Terms, (c) your violation of
applicable laws or regulations or (d) your User Content. Company reserves the right, at your expense,
to assume the exclusive defense and control of any matter for which you are
required to indemnify us, and you agree to cooperate with our defense of these
claims. You agree not to settle any
matter without the prior written consent of Company. Company will use reasonable efforts to notify
you of any such claim, action or proceeding upon becoming aware of it.
5.
Third-Party Links & Ads; Other Users
5.1
Third-Party
Links & Ads. The Site may contain
links to third-party websites and services, and/or display advertisements for
third parties (collectively, “Third-Party Links & Ads”). Such Third-Party Links & Ads are not
under the control of Company, and Company is not responsible for any
Third-Party Links & Ads. Company
provides access to these Third-Party Links & Ads only as a convenience to
you, and does not review, approve, monitor, endorse, warrant, or make any
representations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at
your own risk, and should apply a suitable level of caution and discretion in
doing so. When you click on any of the Third-Party Links & Ads, the
applicable third party’s terms and policies apply, including the third party’s
privacy and data gathering practices.
You should make whatever investigation you feel necessary or appropriate
before proceeding with any transaction in connection with such Third-Party
Links & Ads.
5.2
Other
Users. Each Site user is solely
responsible for any and all of its own User Content. Since we do not control User Content, you
acknowledge and agree that we are not responsible for any User Content, whether
provided by you or by others. We make no
guarantees regarding the accuracy, currency, suitability, appropriateness, or
quality of any User Content. Your
interactions with other Site users are solely between you and such users. You agree that Company will not be
responsible for any loss or damage incurred as the result of any such
interactions. If there is a dispute
between you and any Site user, we are under no obligation to become involved.
5.3
Release.
You hereby release and forever discharge
Company (and our officers, employees, agents, successors, and assigns) from,
and hereby waive and relinquish, each and every past, present and future
dispute, claim, controversy, demand, right, obligation, liability, action and
cause of action of every kind and nature (including personal injuries, death,
and property damage), that has arisen or arises directly or indirectly out of,
or that relates directly or indirectly to, the Site (including any interactions
with, or act or omission of, other Site users or any Third-Party Links &
Ads). IF YOU ARE A CALIFORNIA RESIDENT,
YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE
FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED
PARTY.”
THE SITE
IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND COMPANY (AND OUR
SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY
KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT,
ACCURACY, OR NON-INFRINGEMENT. WE (AND
OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE WILL MEET YOUR REQUIREMENTS, WILL
BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL
BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL,
OR SAFE. IF APPLICABLE LAW REQUIRES ANY
WARRANTIES WITH RESPECT TO THE SITE, ALL SUCH WARRANTIES ARE LIMITED IN
DURATION TO 90 DAYS FROM THE DATE OF FIRST USE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF
IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS
ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO
YOU.
TO THE MAXIMUM EXTENT PERMITTED BY
LAW, IN NO EVENT SHALL COMPANY (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD
PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE
PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR
PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR
INABILITY TO USE, THE SITE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. ACCESS TO, AND USE OF,
THE SITE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE
FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING
THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY
LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY
TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS (FOR ANY CAUSE
WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE
LIMITED TO A MAXIMUM OF FIFTY US DOLLARS. THE EXISTENCE OF MORE THAN ONE CLAIM
WILL NOT ENLARGE THIS LIMIT. YOU AGREE
THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING
TO THESE TERMS.
SOME
JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY
NOT APPLY TO YOU.
8.
Term and Termination.
Subject
to this Section, these Terms will remain in full force and effect while you use
the Site. We may suspend or
terminate your rights to use the Site (including your Account) at any time
for any reason at our sole discretion, including for any use of
the Site in violation of these Terms.
Upon termination of your rights under these Terms, your Account and
right to access and use the Site will terminate immediately. You understand that any termination of your
Account may involve deletion of your User Content associated with your Account
from our live databases. Company will
not have any liability whatsoever to you for any termination of your rights
under these Terms, including for termination of your Account or deletion of
your User Content. Even after your
rights under these Terms are terminated, the following provisions of these
Terms will remain in effect: Sections 2.2 through 2.6, Section 3 and Sections 4 through 10.
Company respects the intellectual
property of others and asks that users of our Site do the same. In connection with our Site, we have adopted
and implemented a policy respecting copyright law that provides for the removal
of any infringing materials and for the termination, in appropriate
circumstances, of users of our online Site who are repeat infringers of
intellectual property rights, including copyrights. If you believe that one of our users is,
through the use of our Site, unlawfully infringing the copyright(s) in a work,
and wish to have the allegedly infringing material removed, the following
information in the form of a written notification (pursuant to 17 U.S.C. §
512(c)) must be provided to our designated Copyright Agent:
1.
your
physical or electronic signature;
2. identification of the copyrighted
work(s) that you claim to have been infringed;
3. identification of the material on our
services that you claim is infringing and that you request us to remove;
4. sufficient information to permit us to
locate such material;
5. your address, telephone number, and
e-mail address;
6. a statement that you have a good faith
belief that use of the objectionable material is not authorized by the
copyright owner, its agent, or under the law; and
7.
a
statement that the information in the notification is accurate, and under
penalty of perjury, that you are either the owner of the copyright that has
allegedly been infringed or that you are authorized to act on behalf of the
copyright owner.
Please note that, pursuant to 17
U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a
written notification automatically subjects the complaining party to liability
for any damages, costs and attorney’s fees incurred by us in connection with
the written notification and allegation of copyright infringement.
10.2
Dispute
Resolution. Please read the following arbitration agreement
in this Section (the “Arbitration Agreement”) carefully. It requires you
to arbitrate disputes with Company, its parent companies, subsidiaries,
affiliates, successors and assigns and all of their respective officers,
directors, employees, agents, and representatives (collectively, the “Company
Parties”) and limits the manner in which you can seek relief from the Company
Parties.
(a)
Applicability
of Arbitration Agreement. You agree that any dispute between you and
any of the Company Parties relating in any way to the Site, the services
offered on the Site (the “Services”) or these Terms will be resolved by binding
arbitration, rather than in court, except that (1) you and the Company Parties
may assert individualized claims in small claims court if the claims qualify,
remain in such court and advance solely on an individual, non-class basis; and
(2) you or the Company Parties may seek equitable relief in court for
infringement or other misuse of intellectual property rights (such as
trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall survive the expiration or
termination of these Terms and shall apply, without limitation, to
all claims that arose or were asserted before you agreed to these Terms (in
accordance with the preamble) or any prior version of these Terms. This Arbitration Agreement does not preclude
you from bringing issues to the attention of federal, state or local
agencies. Such agencies can, if the law
allows, seek relief against the Company Parties on your behalf.
For purposes of this Arbitration Agreement, “Dispute” will also
include disputes that arose or involve facts occurring before the existence of
this or any prior versions of the Agreement as well as claims that may arise
after the termination of these Terms.
(b)
Informal
Dispute Resolution. There might be instances when a Dispute arises between you
and Company. If that occurs, Company is committed to working with you to reach
a reasonable resolution. You and Company agree that good faith informal efforts
to resolve Disputes can result in a prompt, low‐cost and mutually beneficial
outcome. You and Company therefore agree that before either party commences
arbitration against the other (or initiates an action in small claims court if
a party so elects), we will personally meet and confer telephonically or via
videoconference, in a good faith effort to resolve informally any Dispute
covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”).
If you are represented by counsel, your counsel may participate in the
conference, but you will also participate in the conference.
The party initiating a
Dispute must give notice to the other party in writing of its intent to
initiate an Informal Dispute Resolution Conference (“Notice”), which shall
occur within 45 days after the other party receives such Notice, unless an
extension is mutually agreed upon by the parties. Notice to Company that you
intend to initiate an Informal Dispute Resolution Conference should be sent by
email to: contact@chuttapp.com, or by regular mail to 2810 North Church Street, US, Wilmington, Delaware
19802. The Notice must include: (1) your name,
telephone number, mailing address, e‐mail address associated with your account
(if you have one); (2) the name, telephone number, mailing address and e‐mail
address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute
Resolution Conference shall be individualized such that a separate conference
must be held each time either party initiates a Dispute, even if the same law
firm or group of law firms represents multiple users in similar cases, unless
all parties agree; multiple individuals initiating a Dispute cannot participate
in the same Informal Dispute Resolution Conference unless all parties agree. In
the time between a party receiving the Notice and the Informal Dispute
Resolution Conference, nothing in this Arbitration Agreement shall prohibit the
parties from engaging in informal communications to resolve the initiating
party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a
condition precedent and requirement that must be fulfilled before commencing
arbitration. The statute of limitations and any filing fee deadlines shall be
tolled while the parties engage in the Informal Dispute Resolution Conference
process required by this section.
(c)
Arbitration Rules and Forum. These Terms evidence a transaction
involving interstate commerce; and notwithstanding any other provision herein
with respect to the applicable substantive law, the Federal Arbitration Act, 9
U.S.C. § 1 et seq., will govern the interpretation and enforcement of this
Arbitration Agreement and any arbitration proceedings. If the Informal Dispute
Resolution Process described above does not resolve satisfactorily within 60
days after receipt of your Notice, you and Company agree that either party
shall have the right to finally resolve the Dispute through binding
arbitration. The Federal Arbitration Act governs the interpretation and
enforcement of this Arbitration Agreement. The arbitration will be conducted by
JAMS, an established alternative dispute resolution provider. Disputes
involving claims and counterclaims with an amount in controversy under
$250,000, not inclusive of attorneys’ fees and interest, shall be subject to
JAMS’ most current version of the Streamlined Arbitration Rules and procedures
available at http://www.jamsadr.com/rules-streamlined-arbitration/;
all other claims shall be subject to JAMS’s most current version of the
Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/.
JAMS’s rules are also available at www.jamsadr.com
or by calling JAMS at 800-352-5267. A party who wishes to initiate arbitration
must provide the other party with a request for arbitration (the “Request”).
The Request must include: (1) the name, telephone number, mailing address,
e‐mail address of the party seeking arbitration and the account username (if
applicable) as well as the email address associated with any applicable
account; (2) a statement of the legal claims being asserted and the factual
bases of those claims; (3) a description of the remedy sought and an accurate,
good‐faith calculation of the amount in controversy in United States Dollars;
(4) a statement certifying completion of the Informal Dispute Resolution
process as described above; and (5) evidence that the requesting party has paid
any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is
represented by counsel, the Request shall also include counsel’s name,
telephone number, mailing address, and email address. Such counsel must also
sign the Request. By signing the Request, counsel certifies to the best of
counsel’s knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances, that: (1) the Request is not being
presented for any improper purpose, such as to harass, cause unnecessary delay,
or needlessly increase the cost of dispute resolution; (2) the claims, defenses
and other legal contentions are warranted by existing law or by a nonfrivolous
argument for extending, modifying, or reversing existing law or for
establishing new law; and (3) the factual and damages contentions have
evidentiary support or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for further investigation or
discovery.
Unless you and Company
otherwise agree, or the Batch Arbitration process discussed in Subsection 10.2(h)
is triggered, the arbitration will be conducted in the county where you reside.
Subject to the JAMS Rules, the arbitrator may direct a limited and reasonable
exchange of information between the parties, consistent with the expedited
nature of the arbitration. If the JAMS is not available to arbitrate, the
parties will select an alternative arbitral forum. Your responsibility to pay
any JAMS fees and costs will be solely as set forth in the applicable JAMS
Rules.
You and Company agree that
all materials and documents exchanged during the arbitration proceedings shall
be kept confidential and shall not be shared with anyone except the parties’
attorneys, accountants, or business advisors, and then subject to the condition
that they agree to keep all materials and documents exchanged during the
arbitration proceedings confidential.
(d)
Authority of Arbitrator. The arbitrator shall have exclusive
authority to resolve all disputes subject to arbitration hereunder including,
without limitation, any dispute related to the interpretation, applicability,
enforceability or formation of this Arbitration Agreement or any portion of the
Arbitration Agreement, except for the following: (1)
all Disputes arising out of or relating to the subsection entitled “Waiver of
Class or Other Non-Individualized Relief,” including any claim that all or part
of the subsection entitled “Waiver of Class or Other Non-Individualized Relief”
is unenforceable, illegal, void or voidable, or that such subsection entitled
“Waiver of Class or Other Non-Individualized Relief” has been breached, shall
be decided by a court of competent jurisdiction and not by an arbitrator; (2)
except as expressly contemplated in the subsection entitled “Batch
Arbitration,” all Disputes about the payment of arbitration fees shall be
decided only by a court of competent jurisdiction and not by an arbitrator; (3)
all Disputes about whether either party has satisfied any condition precedent
to arbitration shall be decided only by a court of competent jurisdiction and
not by an arbitrator; and (4) all Disputes about which version of the
Arbitration Agreement applies shall be decided only by a court of competent
jurisdiction and not by an arbitrator.
The arbitration proceeding will not be
consolidated with any other matters or joined with any other cases or parties,
except as expressly provided in the subsection entitled “Batch Arbitration.” The
arbitrator shall have the authority to grant motions dispositive of all or part
of any claim or dispute. The arbitrator shall have the authority to award
monetary damages and to grant any non-monetary remedy or relief available to an
individual party under applicable law, the arbitral forum’s rules, and these
Terms (including the Arbitration Agreement). The arbitrator shall issue a
written award and statement of decision describing the essential findings and
conclusions on which any award (or decision not to render an award) is based,
including the calculation of any damages awarded. The arbitrator shall follow
the applicable law. The award of the arbitrator is
final and binding upon you and us. Judgment on the arbitration award may be
entered in any court having jurisdiction.
(e)
Waiver of Jury Trial. EXCEPT AS SPECIFIED in section 10.2(a) YOU AND THE COMPANY PARTIES HEREBY WAIVE ANY
CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN
FRONT OF A JUDGE OR A JURY. You and the Company Parties are instead electing
that all covered claims and disputes shall be resolved exclusively by
arbitration under this Arbitration Agreement, except as specified in Section 10.2(a) above. An arbitrator can award on an
individual basis the same damages and relief as a court and must follow these
Terms as a court would. However, there is no judge or jury in arbitration, and
court review of an arbitration award is subject to very limited review.
(f)
Waiver of Class or Other
Non-Individualized Relief.
YOU AND COMPANY
AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 10.2(h) EACH OF US MAY BRING CLAIMS AGAINST
THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR
COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE
BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS,
COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS
AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED
OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this
Arbitration Agreement, the arbitrator may award declaratory or injunctive
relief only in favor of the individual party seeking relief and only to the
extent necessary to provide relief warranted by the party’s individual claim.
Nothing in this paragraph is intended to, nor shall it, affect the terms and
conditions under the Subsection 10.2(h) entitled
“Batch Arbitration.” Notwithstanding anything to the contrary in this
Arbitration Agreement, if a court decides by means of a final decision, not
subject to any further appeal or recourse, that the limitations of this
subsection, “Waiver of Class or Other Non-Individualized Relief,” are invalid
or unenforceable as to a particular claim or request for relief (such as a
request for public injunctive relief), you and Company agree that that
particular claim or request for relief (and only that particular claim or
request for relief) shall be severed from the arbitration and may be litigated
in the state or federal courts located in the State of Delaware. All other
Disputes shall be arbitrated or litigated in small claims court. This
subsection does not prevent you or Company from participating in a class-wide
settlement of claims.
(g)
Attorneys’
Fees and Costs. The parties shall bear their own attorneys’ fees and costs in
arbitration unless the arbitrator finds that either the substance of the
Dispute or the relief sought in the Request was frivolous or was brought for an
improper purpose (as measured by the standards set forth in Federal Rule of
Civil Procedure 11(b)). If you or Company need to invoke the authority of a
court of competent jurisdiction to compel arbitration, then the party that
obtains an order compelling arbitration in such action shall have the right to
collect from the other party its reasonable costs, necessary disbursements, and
reasonable attorneys’ fees incurred in securing an order compelling
arbitration. The prevailing party in any court action relating to whether
either party has satisfied any condition precedent to arbitration, including
the Informal Dispute Resolution Process, is entitled to recover their
reasonable costs, necessary disbursements, and reasonable attorneys’ fees and
costs.
(h)
Batch
Arbitration. To increase the efficiency of administration and resolution of
arbitrations, you and Company agree that in the event that there are 100 or
more individual Requests of a substantially similar nature filed against
Company by or with the assistance of the same law firm, group of law firms, or
organizations, within a 30 day period (or as soon as possible thereafter), the
JAMS shall (1) administer the arbitration demands in batches of 100 Requests
per batch (plus, to the extent there are less than 100 Requests left over after
the batching described above, a final batch consisting of the remaining
Requests); (2) appoint one arbitrator for each batch; and (3) provide for the
resolution of each batch as a single consolidated arbitration with one set of
filing and administrative fees due per side per batch, one procedural calendar,
one hearing (if any) in a place to be determined by the arbitrator, and one
final award (“Batch Arbitration”).
All parties agree that
Requests are of a “substantially similar nature” if they arise out of or relate
to the same event or factual scenario and raise the same or similar legal
issues and seek the same or similar relief. To the extent the parties disagree
on the application of the Batch Arbitration process, the disagreeing party
shall advise the JAMS, and the JAMS shall appoint a sole standing arbitrator to
determine the applicability of the Batch Arbitration process (“Administrative
Arbitrator”). In an effort to expedite resolution of any such dispute by the
Administrative Arbitrator, the parties agree the Administrative Arbitrator may
set forth such procedures as are necessary to resolve any disputes promptly.
The Administrative Arbitrator’s fees shall be paid by Company.
You and Company agree to
cooperate in good faith with the JAMS to implement the Batch Arbitration
process including the payment of single filing and administrative fees for
batches of Requests, as well as any steps to minimize the time and costs of
arbitration, which may include: (1) the appointment of a discovery special
master to assist the arbitrator in the resolution of discovery disputes; and
(2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration
provision shall in no way be interpreted as authorizing a class, collective
and/or mass arbitration or action of any kind, or arbitration involving joint
or consolidated claims under any circumstances, except as expressly set forth
in this provision.
(i)
30-Day Right to Opt
Out. You have the right to opt out of the provisions
of this Arbitration Agreement by sending a timely written notice of your
decision to opt out to the following address: 2810 North Church Street, US, Wilmington, Delaware
19802, or email to contact@chuttapp.com, within 30 days after first becoming
subject to this Arbitration Agreement. Your notice must include your name and
address and a clear statement that you want to opt out of this Arbitration
Agreement. If you opt out of this Arbitration Agreement, all other parts of these
Terms will continue to apply to you. Opting out of this Arbitration Agreement
has no effect on any other arbitration agreements that you may currently have
with us, or may enter into in the future with us.
(j)
Invalidity,
Expiration. Except as provided in the subsection entitled “Waiver of Class or
Other Non-Individualized Relief”, if any part or parts of this Arbitration
Agreement are found under the law to be invalid or unenforceable, then such
specific part or parts shall be of no force and effect and shall be severed and
the remainder of the Arbitration Agreement shall continue in full force and
effect. You further agree that any Dispute that you have with Company as
detailed in this Arbitration Agreement must be initiated via arbitration within
the applicable statute of limitation for that claim or controversy, or it will
be forever time barred. Likewise, you agree that all applicable statutes of
limitation will apply to such arbitration in the same manner as those statutes
of limitation would apply in the applicable court of competent jurisdiction.
(k)
Modification. Notwithstanding any provision in these
Terms to the contrary, we agree that if Company makes any future material
change to this Arbitration Agreement, you may reject that change within 30 days
of such change becoming effective by writing Company at the following address: 2810
North Church Street, US, Wilmington, Delaware 19802, or email to
contact@chuttapp.com. Unless you reject the change within 30 days of such change
becoming effective by writing to Company in accordance with the foregoing, your
continued use of the Site and/or Services, including the acceptance of products
and services offered on the Site following the posting of changes to this
Arbitration Agreement constitutes your acceptance of any such changes. Changes
to this Arbitration Agreement do not provide you with a new opportunity to opt
out of the Arbitration Agreement if you have previously agreed to a version of these
Terms and did not validly opt out of arbitration. If you reject any change or
update to this Arbitration Agreement, and you were bound by an existing
agreement to arbitrate Disputes arising out of or relating in any way to your
access to or use of the Services or of the Site, any communications you
receive, any products sold or distributed through the Site, the Services, or these
Terms, the provisions of this Arbitration Agreement as of the date you first
accepted these Terms (or accepted any subsequent changes to these Terms) remain
in full force and effect. Company will continue to honor any valid opt outs of
the Arbitration Agreement that you made to a prior version of these Terms.
10.3
Export. The Site may be subject to U.S. export
control laws and may be subject to export or import regulations in other
countries. You agree not to export, reexport, or transfer, directly or
indirectly, any U.S. technical data acquired from Company, or any products
utilizing such data, in violation of the United States export laws or
regulations.
10.4
Disclosures. Company is located at the address in Section
10.8. If you are a California resident, you may report complaints to the
Complaint Assistance Unit of the Division of Consumer Product 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.
10.5
Electronic Communications. The communications between you and Company use
electronic means, whether you use the Site or send us emails, or whether Company
posts notices on the Site or communicates with you via email. For contractual
purposes, you (a) consent to receive communications from Company in an
electronic form; and (b) agree that all terms and conditions, agreements,
notices, disclosures, and other communications that Company provides to you
electronically satisfy any legal requirement that such communications would
satisfy if it were be in a hardcopy writing. The foregoing does not affect your
non-waivable rights.
10.6
Entire Terms. These Terms constitute the entire
agreement between you and us regarding the use of the Site. Our failure to
exercise or enforce any right or provision of these Terms shall not operate as
a waiver of such right or provision. The section titles in these Terms are for
convenience only and have no legal or contractual effect. The word “including”
means “including without limitation”. If
any provision of these Terms is, for any reason, held to be invalid or
unenforceable, the other provisions of these Terms will be unimpaired and the
invalid or unenforceable provision will be deemed modified so that it is valid
and enforceable to the maximum extent permitted by law. Your relationship to Company is that of an
independent contractor, and neither party is an agent or partner of the
other. These Terms, and your rights and
obligations herein, may not be assigned, subcontracted, delegated, or otherwise
transferred by you without Company’s prior written consent, and any attempted
assignment, subcontract, delegation, or transfer in violation of the foregoing
will be null and void. Company may
freely assign these Terms. The terms and
conditions set forth in these Terms shall be binding upon assignees.
10.7
Copyright/Trademark
Information. Copyright © 2024 ChuttApp, Inc. All rights
reserved. All trademarks, logos and service marks (“Marks”)
displayed on the Site are our property or the property of other third parties.
You are not permitted to use these Marks without our prior written consent or
the consent of such third party which may own the Marks.
ChuttApp
Address:
2810 North Church Street, US
Wilmington, Delaware 19802
Telephone:
+17605458645
Email:
contact@chuttapp.com