Welcome, and thank you for your interest in Technovation (“We” or “Us”), which owns and operates the websites located at https://www.technovation.org http://iridescentlearning.org/ and https://www.curiositymachine.org/ and http://www.technovationchallenge.org/ (the “Websites”). The following Terms of Use are a legal contract between you (“You”) and Technovation regarding Your use of the Websites.
PLEASE READ THESE TERMS OF USE (“AGREEMENT” OR “TERMS OF USE”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY TECHNOVATION. THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE WEBSITES, AND ANY OTHER FEATURES, CONTENT, OR APPLICATIONS OFFERED FROM TIME TO TIME BY TECHNOVATION IN CONNECTION THEREWITH (COLLECTIVELY, THE “SERVICE”). BY USING THE WEBSITES OR THE SERVICE IN ANY MANNER, INCLUDING BUT NOT LIMITED TO VISITING OR BROWSING THE WEBSITES, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT.
IF YOU ARE A PARENT OR GUARDIAN AND YOU PROVIDE YOUR CONSENT TO YOUR CHILD’S REGISTRATION WITH THE WEBSITES, YOU AGREE TO BE BOUND BY THESE TERMS OF USE IN RESPECT OF THEIR USE OF THE WEBSITES.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT. THIS AGREEMENT APPLIES TO ALL USERS OF THE WEBSITES OR THE SERVICE, INCLUDING USERS WHO ARE ALSO CONTRIBUTORS OF CONTENT, INFORMATION, AND OTHER MATERIALS OR SERVICES ON THE WEBSITES.
The Service is offered subject to acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies and procedures that may be published from time to time on the Websites by Technovation. In addition, some services offered through the Service may be subject to additional terms and conditions promulgated by Technovation from time to time; your use of such services is subject to those additional terms and conditions, which are incorporated into these Terms of Use by this reference.
You represent and warrant that if you are an individual, you are of legal age to agree to these terms and conditions or you are age eighteen (18) or older and have your parents’ permission to do so, and that all registration information you submit (including any details you submit for a parent or guardian) is accurate and truthful. Technovation may, in its sole discretion, refuse to offer the Service to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access the Service is revoked in such jurisdictions.
Technovation reserves the right, at its sole discretion, to modify or replace any of the Terms of Use, or change, suspend, or discontinue the Service (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Websites or by sending you an email. We will make reasonable efforts to notify you of material changes to this Agreement. Such efforts might include posting notice on the Services, an email to the address we have on file, or a message in your Account. Technovation may also impose limits on certain features and services or restrict your access to parts or all of the Service without notice or liability. It is your responsibility to check the Terms of Use periodically for changes. Your continued use of the Service following the posting of any changes to the Terms of Use constitutes acceptance of those changes.
As a condition of use, you promise not to use the Service for any purpose that is prohibited by the Terms of Use. The Service (including, without limitation, any Content, or User Submissions (both as defined below)) is provided only for your own personal, non-commercial use. You are responsible for all of your activity in connection with the Service. For purposes of the Terms of Use, the term “Content” includes, without limitation, any advertisements, advice, suggestions, videos, audio clips, written forum comments, information, data, text, photographs, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible by Technovation or its partners on or through the Service.
By way of example, and not as a limitation, you shall not (and shall not permit any third party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any content on or through the Service, that:
Additionally, you shall not: (i) take any action that imposes or may impose (as determined by Technovation in its sole discretion) an unreasonable or disproportionately large load on Technovation’s (or its third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (iii) bypass any measures Technovation may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); or (iv) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Websites.
You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service, except (A) for any part of the Service which is licensed under an open source or similar license or (B) to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Service except where license permits, or (iii) copy, rent, lease, distribute, or otherwise transfer any or all of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
Technovation reserves the right to remove any Content from the Websites or the Service at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if Technovation is concerned that you may have violated the Terms of Use), or for no reason at all.
The Websites are not available to any users who were previously suspended from using the Websites or removed from the Websites by Technovation, or any persons under the age of eighteen (18) whose registration has not been approved by a legal parent or guardian. By accepting these Terms of Use or by registering for an account on any of the Websites, You represent that (1) You have not previously been suspended from using the Websites or removed from the Websites by Technovation, (2) that You are either at least eighteen (18) years of age or Your parent or guardian has consented to Your use of the Websites, and (3) that Your registration and use of the Websites is in compliance with all applicable laws and regulations.
As a condition to using certain aspects of the Service, you will be required to register with Technovation and select a password and username (“Account”). You shall provide us with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of the Terms of Use, which may result in immediate termination of your Account. You shall not (i) select or use as a Website Username a name of another person with the intent to impersonate that person; (ii) use as a Website Username a name subject to any rights of a person other than you without appropriate authorization; (iii) use as a Website Username a name that is otherwise offensive, vulgar or obscene; or (iv) use another User’s Account without permission.
If you create an account on the Websites through a third-party connection or log-in, for example through Facebook, Google+, or Twitter, or by “following,” or “liking” any of the Websites or the Service on a third party social media site, etc., that third party may pass certain information about your use of its services to us. You acknowledge that Technovation and this third party may share information, in accordance with Technovation’s Privacy Policy, the policies of any third party, and your confidentiality settings on the third party service.
You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords with your account. You must notify Technovation immediately of any breach of security or unauthorized use of your account. Technovation will not be liable for any losses caused by any unauthorized use of your account.
Technovation reserves the right to refuse registration of, or cancel an Account in its sole discretion. You are solely responsible for activity that occurs on your Account and shall be responsible for maintaining the confidentiality of your password. You will immediately notify Technovation in writing of any unauthorized use of your account, or other account related security breach of which you are aware.
If You are a User of the Websites and are under the age of 18 (“Child User”), You may not register an Account for the Websites without consent and approval from your legal parent or guardian. A Child User that begins the registration process for himself or herself without a Parent User may have the registration process restricted until a Parent User approves or assumes responsibility for the Child User account. Additionally, a Child User may use the Websites if registered through certain educational organizations or, in certain cases (as defined below), by Coaches that have entered into a relationship directly with Technovation and through which education organization or Coach the legal parent and/or guardian of such Child User has consented to use of the Websites. Further, in certain instances, a Child User may use our Websites via one of the third party applications that integrate into or with the Websites. A Child User that has registered through such external educational organizations, third party applications, or Coaches will only be permitted to use the Websites for so long as Technovation reasonably believes that such access has been consented to by the Child User’s parent or guardian.
If You are at least 18 years of age and you are the legal parent or guardian of a child that seeks to register as a Child User of the Websites, You may register a parent account on the Websites (“Parent User”). As a Parent User, you may create, register, manage and approve Child User accounts only for your own child(ren) or child(ren) for whom you are a legal guardian. IF YOU REGISTER, APPROVE THE REGISTRATION OF, OR OTHERWISE ASSUME RESPONSIBILITY FOR ANY CHILD USER, YOU REPRESENT AND WARRANT THAT YOU ARE SUCH CHILD USER’S LEGAL PARENT OR GUARDIAN AND YOU AGREE TO BE BOUND BY THE TERMS ON BEHALF OF SUCH CHILD USER, INCLUDING WITHOUT LIMITATION BEING LIABLE FOR ALL USE OF THE WEBSITES BY THE CHILD USER. You acknowledge that Technovation may choose, but is not obligated, to make any inquiries, either directly or through third parties, that Technovation deems necessary to validate Your registration information, including without limitation engaging third parties to provide verification services. Technovation reserves all rights to take legal actions against anyone who misrepresents personal information or is otherwise untruthful about their identity. NOTWITHSTANDING THE FOREGOING, YOU ACKNOWLEDGE THAT TECHNOVATION CANNOT GUARANTEE THE ACCURACY OF ANY INFORMATION SUBMITTED BY ANY USER AND IS NOT OBLIGATED TO VERIFY THE IDENTITY OF ANY USER, INCLUDING ANY USER’S CLAIM TO BE A PARENT USER, OR TO VERIFY THAT A PARENT IDENTIFIED BY A CHILD USER DURING REGISTRATION IS SUCH CHILD USER’S ACTUAL PARENT OR GUARDIAN. A Parent User account, along with all associated Child User accounts, may be terminated by Technovation at any time and without warning for any failure to abide by these Terms.
The Service may permit you to link to other websites or resources on the Internet, and other websites or resources may contain links to the Websites. When you access third party websites, you do so at your own risk. These other websites are not under Technovation’s control, and you acknowledge that Technovation is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by Technovation or any association with its operators. You further acknowledge and agree that Technovation shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Content, goods or services available on or through any such website or resource.
You agree that the Service contains Content specifically provided by Technovation or its partners and that such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by all copyright notices, information, and restrictions contained in any Content accessed through the Service. You shall not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, create derivative works from, or otherwise exploit any Content or third party submissions or other proprietary rights not owned by you, (i) without the consent of the respective owners or other valid right, and (ii) in any way that violates any third party right.
You may, to the extent the Websites expressly authorize you to do so, download or copy the Content, and other items displayed on the Websites for download, for personal use only, provided that you maintain all copyright and other notices contained in such Content. Copying or storing of any Content for other than personal, noncommercial use is expressly prohibited without prior written permission from Technovation, or from the copyright holder identified in such Content’s copyright notice.
The Service may provide you with the ability to upload, submit, disclose, distribute or otherwise post (hereafter, “Posting”) data, text, photographs, graphics, visualizations, videos, audio clips, written forum comments, designs, know-how, ideas, inventions or other information or content, to the Service (“User Submissions”).
The User Submissions you create remain yours. This includes any content submitted to us, and any ideas, apps, business plans, and related materials submitted through Technovation. However, by sharing User Submissions through the Service, you agree to allow others to view, edit, and/or share your User Submissions in accordance with this Agreement. Technovation has the right (but not the obligation) in its sole discretion to remove any User Content that is shared via the Service.
By submitting User Submissions to Technovation, by Posting User Submissions on or at any of the Websites or otherwise through the Service, or displaying, publishing, or otherwise Posting any content on or through the Websites or the Service, you:
You hereby grant Technovation a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Submissions and your name, voice, and/or likeness as contained in your User Submissions, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and Technovation’s business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels, and grant Technovation license to incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback that you provide to Technovation relating to the operation of the Service. Technovation does not claim and does not seek any ownership rights in apps, business plans, and related materials submitted through Technovation programs.
You also hereby grant each User of the Service a nonexclusive license to access your User Submissions through the Service, and to use, display, reproduce and perform such User Submissions solely as permitted through the functionality of the Service and under this Agreement. Technovation does not endorse and has no control over any User Submission. Technovation cannot guarantee the authenticity of any data which users may provide about themselves. You acknowledge that all Content accessed by you using the Service and all User Submissions provided by you are at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom. Technovation has no obligation to monitor the Websites, the Service, Content, or User Submissions. Technovation may remove any User Submission at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such User Submission), or for no reason at all.
Under no circumstances will Technovation be liable in any way for any Content or User Submissions, including, but not limited to, any errors or omissions in any Content or User Submissions, or any loss or damage of any kind incurred in connection with use of or exposure to any Content or User Submissions posted, emailed, accessed, transmitted or otherwise made available via the Service. Technovation is not responsible for any data which is deleted (either intentionally or unintentionally) at the direction of any user.
Technovation may terminate your access to all or any part of the Service at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your membership. If you wish to terminate your account, you may do so by contacting Technovation. All provisions of the Terms of Use which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
Technovation has no special relationship with or fiduciary duty to you. You acknowledge that Technovation has no control over, and no duty to take any action regarding: which users gains access to the Websites; what Content you access via the Websites; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You release Technovation from all liability for you having acquired or not acquired Content through the Websites. The Websites may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. Technovation makes no representations concerning any content contained in or accessed through the Websites, and Technovation will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Websites.
Technovation makes no representations or warranties concerning the appropriateness, accuracy, reliability, usefulness, completeness, or timeliness of any Content, and you should not rely on the Content for any purpose. No Content is intended to substitute for personal advice from a qualified professional. When applicable, always seek the advice of a qualified professional, and never disregard professional advice or delay in seeking it because of any Content.
By using the Service, you agree that Technovation shall not be responsible for (1) any Content, (2) any person’s reliance on any such Content, whether or not correct, current and complete, or (3) the consequences of any action that you or any other person takes or fails to take based on any Content or otherwise as a result of your use of the Service.
THE SERVICE (INCLUDING, WITHOUT LIMITATION, ANY CONTENT) IS PROVIDED “AS IS” AND “AS AVAILABLE” AND IS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. TECHNOVATION, AND ITS DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT: (A) THAT THE SERVICE WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; (C) THAT ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (D) THE INTEGRITY OR SECURITY OF ANY USER SUBMISSION OR OTHER DATA PROVIDED TO THE SERVICE; OR (E) THE RESULTS OF USING THE SERVICE WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICE IS SOLELY AT YOUR OWN RISK. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
You shall defend, indemnify, and hold harmless Technovation, its affiliates and each of its, and its affiliates employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to (i) your use or misuse of, or access to, the Websites, the Service, Content or otherwise from your User Submissions, (ii) your violation of the Terms of Use, or (iii) infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. Technovation reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with Technovation in asserting any available defenses. We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
It is our policy to expeditiously respond to notices of alleged copyright infringement that comply with the United States Digital Millennium Copyright Act (“DMCA”). This section describes the information that should be present in these notices and the take down procedure we follow with respect to allegedly infringing material. If we receive proper notification of claimed copyright infringement, our response to these notices may include removing or disabling access to the allegedly infringing material and/or terminating or suspending users. If we remove or disable access in response to such a notice, we will make a good-faith attempt to contact the provider of the allegedly infringing content so that they may make a counter notification pursuant to the DMCA. It is our policy to accommodate and not interfere with standard technical measures used by copyright owners to identify or protect their copyrighted works that we determine are reasonable under the circumstances.
If you believe that any Content on the Services infringes upon any copyright which you own or control, you may send a written notification to our designated copyright agent (the “Designated Agent”), identified below, with the following information:
Designated Agent: Ophelie Horsley
Email: privacy@technovation.org
Address: Technovation 700 El Camino Real Suite 120, Menlo Park, CA 94025
Phone: (213) 746-4453
To notify the provider of the allegedly infringing material to which we have removed or disabled access, we may forward a copy of your infringement notice, including your name and email address to the provider of the allegedly infringing material.
We may terminate users who, in our sole discretion, are deemed to be repeat infringers. Knowingly misrepresenting in a notification that material is infringing can subject you to damages, including costs and attorneys’ fees, incurred by us or the alleged infringer. If you receive an infringement notification from us, you may file a counter notification pursuant with our Designated Agent pursuant to the DMCA. To file a counter notification, please provide our Designated Agent with the following information:
Upon receipt of valid counter notification, we will promptly provide the person who provided the original infringement notification with a copy of your counter notification and inform that person that we will replace the removed material or cease disabling access to it in ten (10) business days. Further, we will replace the removed material and cease disabling access to it not less than ten (10), nor more than fourteen (14), business days following receipt of your counter notice, unless the Designated Agent first receives notice from the person who submitted the original infringement notification that such person has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on the Services.
WE AND OUR AFFILIATES, SUBSIDIARIES, DIVISIONS AND RELATED COMPANIES AS WELL AS OUR AGENTS, SUPPLIERS, SERVICE PROVIDERS, AND RETAILERS (COLLECTIVELY, THE “RELEASEES”) WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OR THE INABILITY TO USE ANY WEBSITE OR THE SERVICES, CONTENT OR EXTERNAL LINKS, INCLUDING BUT NOT LIMITED TO DAMAGES CAUSED BY OR RELATED TO ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, OR ANY COMPUTER VIRUS OR FAILURE.
RELEASEES WILL ALSO NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF DATA OR PROFITS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. RELEASEES ALSO SHALL NOT HAVE ANY LIABILITY OR RESPONSIBILITY FOR ANY ACTS, OMISSIONS OR CONDUCT OF ANY USER OR OTHER THIRD-PARTY.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
REGARDLESS OF THE PREVIOUS SENTENCES, IF WE ARE FOUND TO BE LIABLE, OUR LIABILITY TO YOU OR TO ANY THIRD-PARTY IS LIMITED TO THE GREATER OF ONE HUNDRED DOLLARS ($100), OR THE LOWEST LIABILITY LIMITATION ALLOWED BY APPLICABLE LAW.
Technovation makes no representation that the Content is appropriate or available for use in locations outside of California, and accessing the Service is prohibited from territories where such Content is illegal. If you access the Service from other locations, you do so at your own initiative and are responsible for compliance with local laws.
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT OR TO PURSUE CLAIMS IN A CLASS OR REPRESENTATIVE CAPACITY.
ARBITRATION USES A NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY, ALLOWS FOR MORE LIMITED DISCOVERY THAN IN COURT, AND IS SUBJECT TO VERY LIMITED REVIEW BY COURTS. YOU MAY CHOOSE TO BE REPRESENTED BY A LAWYER IN ARBITRATION OR PROCEED WITHOUT ONE. THIS ARBITRATION PROVISION SHALL SURVIVE TERMINATION OF THIS AGREEMENT. IF, HOWEVER, EITHER THE CLASS ACTION WAIVER OR COORDINATED CLAIMS PROVISION BELOW ARE FOUND INVALID, THEN THE SPECIFIC INVALID PROVISION WILL BE UNENFORCEABLE AND WILL BE SEVERED AND THE REMAINDER OF THE ARBITRATION PROVISIONS WILL REMAIN IN FULL FORCE.
Agreement to Binding Arbitration
You and we agree that any dispute, claim or controversy, including those known or unknown that may be later discovered, arising out of or relating to any aspect of our relationship, including, without limitation, your use or attempted use of the Services, all matters relating to or arising from this Agreement, our Privacy Policy, or any other agreements between you and Company, including, the validity and enforceability of this agreement to arbitrate (each, a “Dispute”), shall be resolved by binding arbitration in San Francisco California before one arbitrator, unless an exception applies as stated below. If the arbitrator finds this location to be unreasonably burdensome to you, a new location may be selected or arbitration may be conducted over the phone, using video conferencing, or similar. You may be entitled to an in-person hearing near your place of residence. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules (collectively, the “JAMS Rules”), as those Rules exist on the effective date of this Agreement, including without limitation Rules 16.1 and 16.2 of the JAMS Rules. Judgment on any award may be entered in any court of competent jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
Exceptions to Arbitration
Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court that only asserts claims for patent infringement or invalidity, copyright infringement, piracy, moral rights violations, trademark infringement, and/or trade secret misappropriation. Excluded claims are subject to the governing law provision below. Either party may also seek relief in a small claims court for any individual disputes or claims within the scope of that court's jurisdiction. If an arbitration is filed, before the arbitrator is formally appointed, either party can send written notice to the opposing party and the applicable arbitration provider that it wants the case decided by a small claims court, after which the arbitration provider may close the case.
JURY TRIAL & CLASS ACTION WAIVER
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND WE ACKNOWLEDGE AND AGREE THAT WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY. YOU AND WE FURTHER AGREE THAT ANY CLAIMS OR ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ARBITRATION OR CLASS ACTION. IF YOU OPT-OUT OF THESE ARBITRATION PROVISIONS AS SET FORTH BELOW, THIS CLASS ACTION WAIVER STILL APPLIES. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. 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 that party’s individual claim.
Seeking Arbitration
If you elect to seek arbitration or file a small claim court action, you must first send to us, by certified mail, a written notice of your claim (“Notice”). The Notice to us must be addressed to: Technovation 700 El Camino Real Suite 120 Menlo Park, CA 94025. If we initiate arbitration, we will send a written Notice to an email address you have previously provided to us, if available. We may also use any other means to contact you, including a message in your Account. A Notice, whether sent by you or by us, must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). If you and we do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or we may commence an arbitration proceeding or file a claim in small claims court. Arbitration forms can be downloaded from www.jamsadr.com.
Fees
You and we agree that for any arbitration you initiate, you will pay the filing fee up to US $250 and we will pay the remaining JAMS fees and costs in accordance with the JAMS Rules. For any arbitration initiated by us, we will pay all JAMS fees and costs.
Hearing
If your claim is for US $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video hearing, or by an in-person hearing as established by the JAMS Rules. If your claim exceeds US $10,000, the right to a hearing will be determined by the JAMS Rules. In the event the arbitration will be conducted solely on the basis of submitted documents, the arbitrator’s decision and award will be made and delivered within six (6) months of the selection of the arbitrator, unless extended by the arbitrator. Except as expressly set forth herein, the payment of all filing, administration, and arbitrator fees will be governed by the JAMS Rules.
Award
In the event arbitration awards you damages of an amount at least US $100 greater than our last documented settlement offer, we will pay your awarded damages or US $2,500, whichever is greater.
Injunctive Relief
Notwithstanding the foregoing, you and we both agree that you or we may sue in court to enjoin infringement or other misuse of intellectual property rights or in other scenarios where injunctive relief is appropriate. In the event a court or arbitrator having jurisdiction finds any portion of this Agreement unenforceable, that portion shall not be effective, and the remainder of the Agreement shall remain effective. No waiver, express or implied, by either party of any breach of or default under this Agreement will constitute a continuing waiver of such breach or default or be deemed to be a waiver of any preceding or subsequent breach or default.
Confidentiality
You and we shall maintain the confidential nature of the arbitration proceeding and the Award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.
Coordinated Proceedings
If twenty-five (25) or more individuals initiate Notices of dispute with us raising similar claims, and counsel for the individuals bringing the claims are the same or are coordinated for these individuals (“Coordinated Claims”), the claims shall proceed in arbitration in a coordinated proceeding. Counsel for the individuals and our counsel shall each select ten (10) cases to proceed first in arbitration in a bellwether proceeding (“Test Cases”). The remaining cases shall not be filed in arbitration until the first ten (10) have been resolved. If the parties are unable to resolve the remaining cases after the conclusion of the Test Cases, each side may select another twenty-five (25) cases to proceed to arbitration for a second bellwether proceeding. This process may continue until the parties have determined an objective methodology to make an offer to resolve each and every outstanding claim. A court will have authority to enforce this clause and, if necessary, to enjoin the mass filing of arbitration demands against us. Individuals bringing Coordinated Claims shall be responsible for up to US $250 of their filing fees or the maximum permissible under the applicable arbitration rules. All applicable statutes of limitations and defenses based upon the passage of time will be tolled while the Coordinated Proceedings specified in this Section are pending. We will take such action, if any, required to effectuate such tolling.
Governing Law
This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of California, exclusive of conflict or choice of law rules. You and we acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).
Punitive Damage and Limitation of Liability
In any arbitration arising out of or related to this Agreement, the arbitrator is not empowered to award punitive or exemplary damages, except where permitted by statute, and the parties waive any right to recover any such damages. In any arbitration arising out of or related to this Agreement, the arbitrator may not award any incidental, indirect, or consequential damages, including damages for lost profits.
30 Day Right to Opt Out
You have the right to opt-out and not be bound by the arbitration agreement and class action waiver provisions in this Section by sending written notice of your decision to opt-out to the following email address: support@technovation.org, using the subject line “Arbitration Opt-Out.” The notice must be sent within 30 days of the date on which you first became subject to this Agreement; otherwise you shall be bound to arbitrate disputes in accordance with the terms of this Section. If you opt-out of these arbitration provisions, Company also will not be bound by them. Note, however, if you opt-out of these arbitration provisions, the class action waiver still applies.
Severance of Arbitration Agreement
If the clauses concerning and describing the procedures and obligations related to Coordinated Claims and Test Case procedures is or becomes invalid or unenforceable, then the remaining entire arbitration agreement and any clauses concerning, relating to, specifying, or otherwise describing the arbitration agreement shall be severed from this Agreement. However, any duty of confidentiality whether or not such duty is connected with arbitration shall survive such severance.
California Residents
If you are a California resident, you will not be required to pay the fees and costs incurred by the opposing party if you do not prevail.
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