Protoqual Learning Systems, LLC
Terms of Use

Last updated: January 6, 2021

Thank you for using our service! These terms of use (the “Agreement”) govern access to and use of the services offered from time to time (“Services”) of Protoqual Learning Systems, LLC (hereinafter, “Company”; “we” or “our”), provided through any software provided to you to access our services, including mobile applications, updates or patches, utilities and tools or APIs and (the “Software”) and our website (the “Website” and, collectively with the Software, the “Platform”) to you (“User” or “you”), so please carefully read them before using the Platform and Services. If you are a registered user of the Services pursuant to a services agreement with an organization (the “Organizational Customer”), your use of the Services is also governed by the service agreement (the “Service Agreement”) between us and the Organization Customer.

These terms, including our Privacy Policy, as set forth from time to time at our Website (the “Privacy Policy”) and our Acceptable Use Policy, as set forth from time to time at our Website (the “Acceptable Use Policy”) both of which are hereby incorporated into this Agreement by reference, establish the legal terms and conditions of the agreement between us governing your use and our provision of the Platform and Services.

IMPORTANT WARNINGS

PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH US ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION. For more details, go to Section 11.10(b).

1. Eligibility

You may use the Platform and Services only in compliance with this Agreement and the Service Agreement. You may use the Platform and Services only if you have the power to form a contract with the Company and are not barred from doing so under any applicable domestic or foreign, federal, state or local statute, law (including principles of common law), ordinance, rule, policy, guideline, permit, administrative interpretation, regulation, order, writ, injunction, legally binding directive, judgment, decree or other requirement of any governmental body (“Legal Requirement”). You may not use the Services if you are under 18 years of age. By agreeing to this Agreement, you are representing to us that you are over 18. You may not use the Services unless you are a resident of the United States of America and access the Platform in the United States of America. Without limiting the foregoing, we do not engage in any processing activities that are related to the offering of goods or services to data subjects residing in the European Union. Accordingly, the Services are not available to any person resident in the European Union or any person accessing it under the jurisdiction of the European Union.

2. Services

2.1 Updates

Company reserves the right to change or upgrade any equipment or software that Company uses to provide the Services without notice to User. Company may install security patches, updates, upgrades, modifications and service packs with respect to the Platform (“Updates”) as Company determine in its discretion, and Company reserves the right, but not the obligation, to roll back any Updates. Updates may change system behavior and functionality and as such may negatively affect the Services used by User. Company will not be responsible or liable for service disruption or changes in functionality or performance due to Updates. Company will not be responsible or liable for issues that may arise from incompatibilities between User’s systems or software and any Update or hardware or software change or configuration, regardless of whether discretionary or requested.

2.2 Access Credentials

User is responsible for safeguarding the username, password and other access credentials that User uses to access the Platform and Services (“Access Credentials”) and User agrees not to disclose User’s Access Credentials to any third party. User is responsible for any activity using User’s Access Credentials, whether or not User authorized that activity. User will immediately notify Company of any unauthorized use of User’s account and of any actual or potential disclosure of User’s Access Credentials. User acknowledges that if User wishes to protect User’s transmission of data or files to Company, it is User’s responsibility to use a secure encrypted connection to communicate with the Platform and Services. Company makes no representations or warranties as to the security of any such encrypted connection, however, and User agrees that Company will have no liability if it fails to protect User’s transmission.

2.2 Consent to Contact by Email

You agree that Company may contact you by email to gather feedback about the product.

3. User Obligations

User will use the Services for only for purposes authorized by the Organizational Customer and the Service Agreement. User’s receipt of Services is at all times conditioned on User:

  1. providing Company with all information reasonably necessary for Company to provide the Services;
  2. using only the Access Credentials provided by Company;
  3. otherwise performing User’s obligations under this Agreement, including the Acceptable Use Policy; and
  4. complying with all applicable Legal Requirements in the use of the Platform and Services.

4. Suspension of Services.

Company may in its discretion immediately suspend any Services and any right to use the Platform at any time in its discretion, including if:

  1. Company believes that User has breached this Agreement, including the Acceptable Use Policy, or the Service Agreement or if the applicable Service Agreement expires or is terminated;
  2. Company is obligated or believes itself obligated to suspend any Services to comply with applicable Legal Requirements, including any order, instruction, requirement, directive or request of any governmental body;
  3. Company believes, in its reasonable opinion, that continuing to supply the Services to User may cause damage or harm to Company’s relationship with any governmental body, business partner or other third party related to the Services;
  4. applicable Legal Requirements or a regulatory action or lawsuit prohibits, impairs or makes impractical the provision of the Services;
  5. a third-party supplier on whose services the provision of Services is dependent suspends its provision of those services to Company;
  6. the Services are being used in a manner that Company determines or has been notified may otherwise create liability or may be fraudulent or illegal; or
  7. User or any third party has accessed the Services in violation of Section 3, or there has otherwise been unauthorized use of User’s Access Credentials.

5. Intellectual Property Rights; Data.

5.1 Platform.

As between you and Company, Company owns and will retain all right, title and interest in all Intellectual Property Rights embodied or fixed in, or otherwise pertaining to, the Platform. Company grants to User only the limited rights to the Services and Platform, if any, provided under any applicable Service Agreement and subject to its terms. In the absence of an applicable Service Agreement, User has no rights to use the Service or the Platform, other than the publicly available portions of the Website. User is prohibited from copying or otherwise reproducing or attempting to reproduce the Platform. User agrees not to modify, disassemble, decompile, reverse engineer, create derivative works of the Platform.

5.2 Data.

Subject to the terms and conditions of this Agreement, User hereby grants Company a limited, worldwide, non-exclusive, royalty-free license during the Term to use, copy, store and transform User Content and User Data, including modifying or editing, combining with other materials, and creating derivative works of the User Content and User Data with other Content and data, solely in order to provide use of the Platform and Services as provided under this Agreement and subject to its terms. As between User and Company, Company agrees that User or Organizational Customer, as determined between them, owns all right, title and interest, including all Intellectual Property Rights, in and to the User Content and User Data, and any changes, modifications or corrections to them. For purposes of this Agreement (a) “User Data” means any data of User processed or stored using the Platform or Services, and (b) “User Content” means any Content provided to Company by or on behalf of User as part of the Services. Company also may aggregate User Data and User Content with that of other Users for any purpose, including analyzing and improving Company’s services to all Users and Company may share that aggregate information publicly, including to show trends about the general use of the Service with the press, in Company’s marketing materials or with Company’s business partners, so long as Company does not in the process disclose to any third parties User Data or User Content in a manner that is readily personally identifiable to User.

5.3 Reservation of Rights.

Each party does not grant, and hereby expressly reserves onto itself, all rights not granted in this Agreement.

5.4 Injunctive Relief.

User agrees that any breach by User of this Section 5 is likely to cause irreparable injury for which Company would have no adequate remedy at law. Therefore, in the event of such a breach or threatened breach and subject to Section 11.10(b), Company will be entitled to seek injunctive relief, without limiting any other rights or remedies that may be available to it and User agrees to waive any requirement for the securing or posting of any bond in connection with any Company efforts to seek injunctive relief in accordance with this Section 5.4.

5.5 Software, Utilities and Tools.

Services may require or allow User to download Software from Company or its licensors onto User’s smartphone, tablet, computer or other device. Company grants to User only the limited rights to the Software, if any, provided under any applicable Service Agreement and subject to its terms. In the absence of an applicable Service Agreement, User has no rights to use the Software. If an end user license agreement is provided with the Software, User’s use of the Software is subject to the terms of that license agreement. User may not sub-license, or charge others to use or access Software. User may not translate, reverse-engineer, reverse-compile or decompile, disassemble or make derivative works from Software. User may not modify Software or use it in any way not expressly authorized in writing by Company. User understands that Company’s introduction of various technologies may not be consistent across all platforms and that the performance of Software and related Services may vary depending on User’s computer and other equipment. From time to time, Company may provide User with Updates to Software. Certain Updates may be required in order to continue use the Software and Services.

5.6 Open Source.

Some software used in the Platform may be offered under an open source license that we will make available to you. There may be provisions in the open source license that expressly override some of this Agreement with respect to that software.

6. Contributing UGC to Services.

6.1 User Responsibility.

Company does not pre-screen all UGC and does not endorse or approve any UGC that User and other Users may contribute to Services. User is solely responsible for User’s UGC and may be held liable for UGC that User posts. User bears the entire risk of the completeness, accuracy and/or usefulness of UGC found on Services. You are advised to exercise a high level of care and caution in the use of the Services.

6.2 Intellectual Property Rights.

Company respects the Intellectual Property Rights of others. User must have the legal right to Upload UGC through the Services. User may not Upload any UGC on Services that infringes the Intellectual Property Rights or any other rights of a third party nor may User Upload UGC in violation of applicable Legal Requirements or this Agreement. User may Upload only UGC that User is permitted to Upload by the owner or by applicable Legal Requirements. Company may, without prior notice to User and in its discretion, remove UGC that Company believes may infringe the Intellectual Property Rights or other rights of a third party.

6.3 Treatment of UGC

Company reserves the right (but has no obligation except as required by applicable Legal Requirements) to remove, block, edit, move or disable UGC for any reason, including when Company determines that UGC violates this Agreement. The decision to remove UGC at any time is in Company’s discretion. To the maximum extent permitted by applicable Legal Requirements, Company does not assume any responsibility or liability for UGC or for removal of, UGC or any failure to or delay in removing, UGC or other Content.

6.4 Take Down Procedure.

If any person believes that person’s Intellectual Property Rights have been infringed by someone else on the Services, that person may contact Company by emailing the following information to legal@quiqnote.com:

  1. a description of the Intellectual Property Rights and an explanation as to how they have been infringed;
  2. a description of where the infringing material is located;
  3. the complaining person’s address, phone number and email address;
  4. a statement by the complaining person, made under penalty of perjury, that (i) the complaining person has a good-faith belief that the disputed use of material in which that person owns Intellectual Property Rights is not authorized, and (ii) the information provided is accurate, correct, and that the complaining person is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
  5. a physical or electronic signature of the person authorized to act on behalf of the owner of the exclusive right that has allegedly been infringed.

6.5 UGC License Grant.

If User uses the Services to transmit UGC to other Users of the Services, including advisers, except as expressly communicated by User to the recipient in writing at the time of transmittal, then User grants those recipients the right to use, copy, modify, display, perform, create derivative works from, and otherwise communicate and distribute the UGC transmitted on or through the relevant Services without further notice, attribution or compensation to User, subject to the recipient’s obligations to the Company and under applicable Legal Requirements. Company has no liability for User’s or any third party’s violation of this Agreement, including this Section 6 and Sections 7 and 8, or any third party’s violation of Legal Requirements or of any other agreement between that third party and Company.

6.6 Company Has No Duty to Monitor.

Unless otherwise specified, there is no requirement or expectation that Company will monitor or record any online activity on Services, including communications. However, Company reserves the right to access and/or record any online activity on Services and, subject to the terms of this Agreement, including the Privacy Policy and Acceptable Use Policy, User gives Company User’s express consent to access and record User’s activities.

6.7 Reporting Abuse.

If User encounters another customer who is violating this Agreement, User will promptly report this activity to Company using the help functions in the relevant Service, if available, or contact Company customer support at help@quiqnote.com.

7. Representations, Warranties and Covenants.

7.1 Authority.

User represents, warrants and covenants to Company that User has full power and authority to enter into this Agreement, to carry out User’s obligations under this Agreement and to grant the rights and licenses granted by User to Company pursuant to this Agreement.

7.2 Approval.

User warrants to Company that User has and will have at all times during the Term all licenses, approvals, qualifications, permits or certificates required in respect of the delivery of all User Content and other information provided pursuant to this Agreement.

7.3 Compliance with Legal Requirements.

User represents, warrants and covenants to Company that in connection with all actions under this Agreement, User will comply with all applicable Legal Requirements, including all Legal Requirements related to privacy.

7.4 Conflicting Obligations.

User represents, and warrants to Company that User has no outstanding agreement or obligation which is in conflict with any of the provisions of this Agreement, or which would preclude User from complying with the provisions hereof, and further agrees that, during the Term, User will not enter into any such conflicting agreement.

7.5 Cooperation.

User will provide Company with access to, and use of, all information, data, documentation and other materials reasonably necessary for Company to fulfill its obligations under this Agreement.

7.6 Content Warranties.

In respect of any reproduction, adaptation or copy of an artistic work, audiovisual work, motion picture, sound recording, musical work, other copyrightable Content, file or other data (each, a “Work”), forming part of User Content received or delivered in connection with the provisions of the Services, User warrants to Company that User has the Intellectual Property Rights, permission or proper authority necessary to allow the Work to be used through the Platform in provision of the Services without infringing the Intellectual Property Rights or other rights of any third party; and, if applicable, User has paid or will pay any royalty, license fees and all other properly imposed fees associated with the Work to a third party having the relevant Intellectual Property Rights.

8. Limitations and Disclaimers.

8.1 Limitation of Liability.

EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOSS OF PROFITS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, EVEN IF SUCH PARTY WILL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH LOSS. EXCEPT FOR CUSTOMER’S OBLIGATIONS UNDER SECTIONS 3(d), 8, 9, AND 11.10(b), IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT EXCEED $1,000.

8.2 Disclaimer of Warranties.

ASIDE FROM THE WARRANTIES THAT COMPANY EXPRESSLY SETS FORTH IN WRITING IN THIS AGREEMENT, IT PROVIDES THE PLATFORM AND SERVICES “AS-IS” AND “WITH ALL FAULTS.”  EXCEPT AS OTHERWISE SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PLATFORM AND SERVICES AND CUSTOMER’S USE THEREOF. CUSTOMER WAIVES ANY AND ALL WARRANTIES THAT MAY BE IMPLIED BY LAW, INCLUDING, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ANY WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. NO WARRANTY IS MADE REGARDING THE RESULTS OF THE SERVICES OR PLATFORM, OR THAT USE OF THE SERVICES OR PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS IN THE SERVICES OR PLATFORM WILL BE CORRECTED, OR THAT THE SERVICES OR PLATFORM’S FUNCTIONALITY WILL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER IS RESPONSIBLE FOR AND MUST PROVIDE ALL HARDWARE, SOFTWARE, SERVICES AND OTHER COMPONENTS NECESSARY TO ACCESS AND USE THE SERVICES, OTHER THAN THE PLATFORM. COMPANY MAKES NO REPRESENTATIONS, WARRANTIES, OR ASSURANCES THAT CUSTOMER’S HARDWARE, SOFTWARE AND OTHER SERVICES AND SYSTEMS WILL BE COMPATIBLE WITH THE PLATFORM OR SERVICE. COMPANY WILL HAVE NO RESPONSIBILITY FOR ANY HARM TO CUSTOMER’S COMPUTER SYSTEM, LOSS OR CORRUPTION OF DATA, OR OTHER HARM THAT RESULTS FROM CUSTOMER’S ACCESS TO OR USE OF THE SERVICES OR PLATFORM.

8.3 Limitations.

Some states do not allow the types of disclaimers in Section 8.2, so they may not apply to you. Nothing in Sections 8.1 or 8.2 is intended to or will supersede or modify the terms of any Service Agreement, as between Company and the applicable Organizational Customer.

8.4 Third-Party Services.

Links from the Platform to external websites (including external sites that are framed by the Website) or inclusion of advertisements do not constitute an endorsement by Company of those sites or the content, products, advertising and other materials presented on those sites or of the products and services that are the subject of those advertisements, but are for User’s reference and convenience. User accesses those sites or the products and services that are the subject of those advertisements at User’s risk. It is User’s responsibility to evaluate the content and usefulness of the information obtained from other sites. Company does not control those sites, and is not responsible for their content. Company provision of links to third-party sites does not mean that Company endorses any of the material on those sites, or has any association with their operators. User further acknowledges that use of any site controlled, owned or operated by third parties is governed by the terms and conditions of use for those sites, and not by this Agreement. Company expressly disclaims any liability derived from the use and/or viewing of links that may appear on the Platform. User agrees  to hold Company harmless from any liability that may result from the use of links that may appear on the Platform.

9. Indemnification.

User will defend, indemnify, save, and hold Company and its Affiliates, officers, employees, agents, suppliers or licensors harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorneys’ fees, costs of investigation, and the amount of any settlements, asserted against Company and them that may arise or result from (a) User’s use of the Services or the Platform, (b) User’s breach of any representation, warranty or covenant in this Agreement or any applicable Service Agreement, (c) User’s negligence, willful misconduct or violation of applicable Legal Requirements, (d) any User Content or User Data, including UGC, (e) any disclose of personally identifiable information or other confidential information in violation of third-party rights or applicable Legal Requirements except if solely attributable to a willful violation of applicable Legal Requirements by Company; or (f) any requirement that we provide information in response to a subpoena related to your account.

10. Term and Termination.

The term of this Agreement (the “Term”) will begin on the date you accept this Agreement and will continue until it is terminated pursuant to its terms. Either party may terminate this Agreement at any time. Subject to the applicable Service Agreement, Company may terminate this Agreement by notice to User. User may terminate this Agreement by terminating User’s account using the process provided on the Platform for terminating a customer account, provided that no such termination will affect any applicable Service Agreement or any other user under such Service Agreement. The provisions of Sections 1, 2.2, 2.3, 5, and 7-12, as well as any other terms of this Agreement that expressly extend or by their nature should extend beyond termination or expiration of this Agreement, will survive and continue in full force and effect after any termination or expiration of this Agreement. Any license(s) granted to User under this Agreement will automatically terminate on termination or expiration of this Agreement. Once terminated, we may permanently delete your account and all the User Content and User Data associated with it, including your emails, from the Platform, subject to the terms of any applicable Service Agreement. If you don’t log in to your account for 12 or more months, we may treat your account as “inactive” and permanently delete the account and all the data associated with it, subject to the terms of any applicable Service Agreement.

11. Miscellaneous.

11.1 Assignment.

User will not assign, transfer or delegate its rights or obligations under this Agreement to any third party without Company’s prior written consent. For the purposes of this Agreement, any sale or transfer by User of all or substantially all of its stock or assets or by merger or otherwise by operation of law is considered an assignment, requiring Company’s express written consent. Company may freely assign this Agreement or transfer any of its interest herein, including to any Company Affiliate, to a purchaser of all or substantially all of Company’s assets, and to a successor in interest of Company as part of a corporate reorganization, consolidation or merger. This Agreement and each of the provisions hereof will inure to the benefit of and be binding on each party’s successors, administrators and permitted assigns.

11.2 Severability.

If any provision of this Agreement is determined by any court of competent jurisdiction to be invalid or unenforceable, such provision will be interpreted to the maximum extent to which it is valid and enforceable, all as determined by such court in such action, and the remaining provisions of this Agreement will, nevertheless, continue in full force and effect without being impaired or invalidated in any way.

11.3 Entire Agreement; No Reliance.

This Agreement, including the Privacy Policy and any applicable Service Agreement, constitutes the entire agreement and understanding between the parties with respect to its subject matter, and this Agreement merges and supersedes all prior agreements, discussions and writings with respect to its subject matter. Each party represents that it has not relied on any representations made by the other party or its representatives or on any descriptions, illustrations or specifications contained in any physical or digital text including websites, proposals, catalogues or other publicity material. Each party has relied only on the express terms of this Agreement, and not on any representations of the other party not set forth in this Agreement, nor on any other documents or materials of the other party not expressly made a part of this Agreement.

11.4 Force Majeure.

Neither party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that delay or failure is caused by fire, flood, explosion, war, terrorism, strike, embargo, governmental action or failure to act, the act of any civil or military authority, act of God, inability to secure material or transportation facilities, acts or omissions of carriers, power outages, computer failures, or by any other causes beyond its control whether or not similar to the foregoing.

11.5 No Waiver.

The waiver, modification, or failure to insist by a party on any of the provisions of this Agreement will not void, waive, nor modify any of the other provisions nor be construed as a waiver or relinquishment of such party’s right to performance in the future of any such provision.

11.6 Relationship of the Parties.

The relationship of the parties under this Agreement is one of independent contractors, and no agency, partnership, employment, joint venture or similar relationship is created by this Agreement. Except as specifically authorized, neither party will have any authority to assume or create obligations on the other party’s behalf, and neither party will take any action that has the effect of creating the appearance of its having such authority.

11.7 Notices.

Any notice required or permitted under this Agreement will be given in writing by personal delivery, by USPS Priority Express Mail, by nationally recognized overnight delivery service (e.g. UPS), or e mail. Any notice will be deemed received on the earlier of the date of actual delivery or the date on which delivery is refused, regardless of whether the party has vacated the physical address or discontinued the e-mail address. The notice address and e-mail address for User will be the address and e-mail address on record with Company as modified by User through the Platform from time to time (or, if none, the notice address of the Organizational Customer under the Service Agreement). The notice address for Company will be 45025 Manitou Dr, #7, Indian Wells, CA 92210, USA and the e-mail address for Company will be legal@quiqnote.com, as reflected in this Agreement as modified form time to time, pursuant to its terms.

11.8 Third Party Beneficiaries.

This Agreement does not and is not intended to confer any rights or remedies on any person or entity other than the parties.

11.9 Amendment.

Company may revise this Agreement from time to time and the most current version will always be posted on the Website. If a revision, in Company’s discretion, is material Company may, but have no obligation to, notify User, including by postings to relevant Company blogs, so please check those pages regularly. By continuing to access or use the Platform and Services after revisions become effective, User agrees to be bound by the revised terms. If User does not agree to the new terms, User must cease using the Platform and Services and terminate User’s account using the process provided on the Platform for terminating a customer account.

11.10 Governing Law; Arbitration.

  1. The validity and enforceability of this Agreement, and all claims or causes of action (whether in contract, tort, statute or otherwise) that may be based on, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any claim or cause of action based on, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), will be governed by, construed in accordance with, and enforced in accordance with, the domestic internal laws of the state of California, including its statutes of limitations, but without regard for conflicts of law principles.
  2. Binding, confidential arbitration pursuant to this Section 11.10(b)(b) will be the only remedy for any dispute or claim of any kind, including third-party claims arising under, concerning, or relating to this Agreement, its interpretation, its validity (including any claim that all or any part of this Agreement is void or voidable), its termination, or its subject matter, whether sounding in contract, tort, equity, statutory law, administrative regulation or otherwise (a “Claim”). Any Claim, will be resolved in a confidential expedited arbitration administered by the JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (a copy of which can be found here:  https://www.jamsadr.com/rules-comprehensive-arbitration) (the “Rules”) then in effect. For purposes of clarification, the parties understand and agree that (a) Section 11.10(a) will apply to any arbitration under this Section 11.10(b), both as to the governing law to be applied by the Arbitrator to the Claim and as to the law governing the arbitration and the interpretation of this Section 11.10(b), and (b) the Federal Arbitration Act, 9 U.S.C. §§ 1-16, will also apply to any arbitration under this Section 11.10(b) by virtue of Article VI, Clause 2 to the United States Constitution. Any Claim submitted to arbitration will be decided by a single, neutral arbitrator (the “Arbitrator”) mutually agreed by the parties or, if they cannot agree within 15 business days of the commencement of arbitration, in accordance with the Rules. The Arbitrator must be qualified as a California attorney who has at least ten years of prior combined professional experience either as a judge or in private practice as a business or commercial litigator. Any arbitration hearings or conferences pursuant to this Section 11.10(b) will be conducted exclusively by means of conference telephone or other communications technology, as reasonably determined by the Arbitrator, by means of which all persons participating in those hearings or conferences can hear each other, and neither the parties, the Arbitrator or any attorneys, witnesses or other representatives of the parties will be required to be physically present in any particular place for purposes of any hearing or conference unless the Arbitrator determines that a physical hearing is necessary to effectively arbitrate the Claim, in which case that physical hearing will be in a location selected by the Arbitrator to be reasonably convenient to the parties and the Arbitrator. The Arbitrator will have the exclusive power to adjudicate the alleged breach, enforcement, interpretation or validity of this Agreement, including as to the scope or applicability of this Section 11.10(b). Discovery within an arbitration pursuant to this Section 11.10(b) will be limited as reasonable or necessary by the Arbitrator. If there is more than one Claim between the parties, all such Claims may be heard in a single arbitration under this Section 11.10(b). Except to the extent required by applicable Legal Requirements that cannot be waived or modified by this Agreement, Claims under this Agreement may not be consolidated into a single arbitration proceeding with disputes between the Company and other persons, even if those Claims are governed by an arbitration proceeding similar or identical to this Section 11.10(b) and even those other persons are similarly situated and their disputes are similar or identical in the nature to a Claims under this Agreement. All JAMS fees and costs will be borne equally by the parties, except that in rendering the award, the Arbitrator will allocate and award an appropriate share of the prevailing party’s reasonable attorneys’ fees and costs, to the losing party. Judgment on any arbitration award may be entered and enforced by any court of competent jurisdiction. EACH PARTY EXPRESSLY AGREES AND UNDERSTANDS THAT BY AGREEING TO ARBITRATION, IT IS WAIVING THE RIGHT TO A JURY TRIAL OR TO A CIVIL ADMINISTRATIVE TRIBUNAL.
  3. Definitions. Capitalized terms in this Agreement have the meanings assigned to them in this  Section 12 or elsewhere in these this Agreement, unless the context otherwise requires, which meaning will be equally applicable to both the singular and plural forms of those terms. In this Agreement, unless a clear contrary intention appears (a) ”Section” refers to sections of this Agreement; (b) ”including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding such term, and (c) any provision for Company’s discretion, consent or approval allows Company to exercise its discretion and to grant or withhold its consent or approval in its sole and absolute discretion. The following terms will be defined as set forth below for purposes of this Agreement:

    Affiliate” means, in respect of a party, any company or other business entity controlled by, controlling, or sharing common control. For the purposes of this definition, “control” will mean the direct or indirect power to direct or cause the direction of the management and policies of a company or other business entity, whether through ownership of 50% or more of the voting interest, by contract, or otherwise.

    Content” means software, technology, text, forum posts, chat posts, profiles, widgets, messages, links, emails, music, sound, graphics, pictures, video, code, and all audio visual or other material appearing on or emanating to and/or from Services, as well as the design and appearance of our applications and websites. Content includes UGC.

    Intellectual Property Rights” means all copyrights fixed in any medium now known or hereafter discovered, including copyrights in computer programs, pictorial works, audiovisual works, literary works, musical works, sound recordings, motion pictures and the like; patents, trademarks, trade names, trade secrets, design rights, design models, database rights and topography rights, all rights to bring an action for passing off, rights of privacy or publicity, and any other similar form of intellectual rights in intangible property or proprietary rights, statutory or otherwise, whether registered or not, and whether applied for or not, all rights to apply for protection in respect of any of the above rights and all other forms of protection of a similar nature or that relate to intangible property, ideas or expression, as they may exist anywhere in the world.

    UGC” means Content contributed by Users, including customers and expert advisors, to Services or created by Users, including customers and expert advisors, through Services.

    Upload” means to upload to the Platform, transmit, distribute, store, create or otherwise publish through the Service.

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