SPOAK DECOR INC.
TERMS OF SERVICE
Last Updated: September 23, 2019
Welcome, and thank you for your interest in Spoak Decor Inc. (“Spoak,” “we,” “our,” or “us”). These terms of service (“Terms”) establish the terms and conditions that apply to you when you use the Service (as defined below).
BY USING THE SERVICE OR BY CLICKING “I AGREE” YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND YOUR AGREEMENT TO BE BOUND BY THESE TERMS, AS WELL AS ALL APPLICABLE LAWS AND REGULATIONS. YOU ARE NOT PERMITTED TO USE THE SERVICE IF YOU DO NOT AGREE TO THESE TERMS. THESE TERMS CAN BE CHANGED, MODIFIED, SUPPLEMENTED, AND/OR UPDATED BY SPOAK AT ANY TIME. WE WILL ENDEAVOR TO PROVIDE YOU WITH PRIOR NOTICE OF ANY MATERIAL CHANGES TO THESE TERMS. YOUR CONTINUED USE OF THE SERVICE AFTER THE MODIFICATION OF THESE TERMS MEANS THAT YOU ACCEPT ALL SUCH CHANGES. ACCORDINGLY, YOU ARE ADVISED TO CONSULT THESE TERMS EACH TIME YOU ACCESS THE SERVICE IN ORDER TO VIEW ANY CHANGES. THESE TERMS WERE LAST MODIFIED AS OF THE DATE INDICATED ABOVE.
AS DESCRIBED BELOW, THESE TERMS PROVIDE FOR THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. YOU CAN OPT-OUT OF THIS AGREEMENT TO ARBITRATE BY CONTACTING SUPPORT@SPOAKDECOR.COM WITHIN 30 DAYS AFTER FIRST ACCEPTING THESE TERMS AND STATING THAT YOU (INCLUDE YOUR FIRST AND LAST NAME) DECLINE THIS AGREEMENT TO ARBITRATE.
1. Use of the Service.
A. Service. The “Service” includes Spoak’s websites located at https://www.spoak.com and https://www.spoakdecor.com (together, the “Site”), as may be updated, relocated, or otherwise modified from time to time, all content, functionality, and services Spoak makes available through the Site, and all intellectual property contained therein. The Service helps people find finishing touches for their home decor by connecting them with artisans and small businesses (“Partners”) around the world. Any person who accesses and/or uses the Service, whether on his or her own behalf or on behalf of any third party, will be referred to herein as a “Spoak User.”
B. Service Restrictions. Your Spoak account is personal to you and you may not share discount codes with, or transfer or gift your use of the Service to, third parties, including other Spoak Users. To use the Site, you must have access to the Internet.
C. License. Subject to your compliance with these Terms, Spoak hereby grants you a limited, revocable, non-exclusive, non-transferable license to access and use the Service, solely in the manner intended by Spoak. Unless otherwise specified in writing, the Service is solely for your personal use and not for resale.
D. Deactivation. Spoak may, at any time and without notice to you: (1) restrict, deactivate, and/or terminate your access to the Service (or any portion thereof); or (2) terminate or modify the Service (or any portion thereof). Spoak will not be liable to you or any third party for any termination of or modification to the Service regardless of the reason for such termination or modification. If you are dissatisfied with any termination or modification of the Service, your only right is to terminate your use of the Service.
2. Registration, Accounts, Passwords and Security.
A. Spoak Users. In order to become a Spoak User, you must complete the registration process by providing Spoak with current, complete and accurate information, as prompted by the applicable registration form.
B. Accuracy of Information. If you provide any information to Spoak that is untrue, inaccurate, not current, or incomplete, Spoak may terminate these Terms and your continued access and use of the Service.
D. Credentials. You are entirely responsible for maintaining the security and confidentiality of any account credentials Spoak provides. You agree to notify Spoak immediately of any unauthorized use of your account or any other breach of security. To notify us, contact us at firstname.lastname@example.org. You are responsible for all use of the Service occurring under your account and all content posted using your account elsewhere on the Service. Spoak will not be liable for any loss that you may incur as a result of someone else using your account, either with or without your knowledge. You may be held liable for any losses incurred by Spoak or another party due to someone else using your account.
3. Your Responsibilities. You may use the Service solely for lawful purposes, as intended through the provided functionality of the Service. You may not use the Service in any manner that could damage, disable, overburden, or impair our servers or networks, or interfere with any other party’s use and enjoyment of the Service. You may not attempt to gain unauthorized access to the Service, user accounts, or computer systems or networks, through hacking, password mining, or any other means. Without limiting any of the foregoing, you may not (and you may not allow or assist any third party to):
We may take any legal action and implement any technical remedies to prevent the violation of these provisions and to enforce these Terms.
4. Consent to Electronic Communications.
B. Opt Out. If you wish to remove yourself from any mailing list, please follow the unsubscribe instructions provided in the email you receive.
C. Charges. Depending on your current carrier plan, you may incur charges for Texts and Notifications and you agree to not hold Spoak liable for any charges incurred. Any terms between you and any third-party provider (such as Apple®, Android™, or Verizon) create no obligation or responsibility on the part of Spoak, and Spoak is not responsible for any failure of warranty by any such third party.
D. Message Delivery. Spoak cannot control certain factors relating to message delivery. Depending on your mobile carrier’s service, it may not be possible to transmit a text message to you successfully. We have no liability for transmission delays or message failures.
5. Content Submitted to the Service.
A. Materials. By sending or transmitting to us information, opinions, creative suggestions, ideas, notes, concepts, or other materials (collectively, “Materials”), or by posting such Materials to any area of the Service, you grant Spoak and its designees a worldwide, non-exclusive, sublicenseable (through multiple tiers), assignable, royalty-free, perpetual, irrevocable license to use, reproduce, distribute (through multiple tiers), create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale, and import such Materials in any media now known or hereafter developed, for the purpose of providing, enhancing, and developing the Service, without compensation to you. We will never use your name in connection with any of your Materials that we use in our own advertising and marketing materials without obtaining your prior consent. You hereby waive any moral rights or other rights with respect to attribution of authorship regarding Materials that you may have under applicable law. None of the Materials will be subject to any obligation, whether of confidentiality, attribution, or otherwise, on our part and we will not be liable for any use or disclosure of any Materials. Spoak may remove or alter any Materials at any time for any reason. We neither endorse nor are responsible for any opinion, advice, information, or statement made or displayed on the Service by any Spoak User. We are not responsible for any errors or omissions in articles or postings, for hyperlinks embedded in messages, or for any results obtained from the use of such information. Under no circumstances will Spoak and/or its affiliates, suppliers, or agents be liable for any loss or damage caused by your reliance on such information obtained through the Service. We cannot and do not take responsibility for the veracity, reliability, or completeness of any opinion, advice, information, or statement available on the Service.
B. Monitoring. The opinions expressed on the Service by Spoak Users (including Partners) reflect solely the opinions of such Spoak Users and do not reflect the opinions of Spoak. We have the right (but not the obligation) to: (1) monitor the Service and Materials; (2) alter or remove any Materials; and (3) disclose Materials and the circumstances surrounding their transmission to any third party in order to operate the Service, protect ourselves, our sponsors, and our members and visitors, and to comply with legal obligations or governmental requests. If you believe any content violates our member policies, please contact Spoak immediately at email@example.com so that we can consider its editing or removal.
C. Rights in Materials. You are solely responsible for your Materials and the consequences of posting them on the Service. By posting Materials, you represent, warrant, and covenant that: (1) you are the creator and owner of the Materials or otherwise have sufficient rights and authority to grant the rights granted herein; (2) your Materials do not and will not: (a) infringe, violate, or misappropriate 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; or (b) slander, defame, or libel any other person; (3) your Materials do not contain any viruses, adware, spyware, worms, or other harmful or malicious code; and (4) unless you have received prior written authorization, your Materials do not contain any confidential information of any third party. We reserve all rights and remedies against any Spoak Users who breach these representations and warranties.
D. Sending Messages. The Service may allow Spoak Users and Partners to exchange messages (“Messages”) with each other. Sending Messages is a privilege, not a right, and Spoak may terminate such privileges of any Spoak User at any time and for any reason, without any liability to such Spoak User. Harmful, obscene, or offensive communications are not welcome in any Messages. If a Spoak User sends you an objectionable Message, please notify us by sending an e-mail to firstname.lastname@example.org. You should exercise discretion, good sense, and sound judgment when sending a Message. You are solely responsible for the content of any Message you send. You agree that Spoak may monitor Messages for compliance with these Terms, and therefore, Messages should not include confidential or proprietary information. You hereby grant us an assignable, sublicensable, irrevocable license to reproduce and transmit your Messages in connection with facilitating transfer to the intended recipient through the Service and for such other purpose as Spoak may deem appropriate in its sole discretion.
6. Payment Terms and Payment Processing.
A. Generally. Access to the Service, or to certain features of the Service, may require you to pay fees. Before you pay any fees, you will have an opportunity to review the fees that you will be charged before you accept them.
B. Fees. All fees are in U.S. Dollars and are non-refundable. Spoak may change the fees for the Service or any feature of the Service, including by adding fees, on a going-forward basis at any time. If Spoak changes the fees for the Service, including by adding additional fees or charges, you will be provided advance notice of those changes and the opportunity to accept the changes. If you do not accept the changes, Spoak may discontinue providing the Service to you.
D. Payment Processing. Payment processing services for Spoak are provided by a third-party payment processor, Stripe Inc. (“Stripe”). Stripe uses your credit card to make payments for the Service. The processing of credit card charges or credits, as applicable, relating to your use of the Service will be subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). You hereby agree to be bound by the Stripe Services Agreement, which may be modified by Stripe from time to time as set forth therein. As a condition of Spoak enabling payment processing services through Stripe, you agree to provide Spoak accurate and complete information about you, and you authorize Spoak to share it and transaction information related to your use of the payment processing services provided by Stripe.
7. Contests. Spoak may provide contests on the Service. The rules, regulations, and procedures governing such contests (“Contest Rules”) will be accessible through a hypertext link displayed on the web page where the contest or game may be located. By entering or participating in any of our contests or games, you agree to be subject to those rules, regulations, and procedures as well as these Terms. If there is a conflict between any Contest Rules and these Terms, the applicable Contest Rules will govern.
8. Term and Termination.
A. Term. The term of these Terms will commence on the date on which you first access or utilize the Service in any way and will continue so long as you continue to access or utilize the Service, unless earlier terminated by Spoak.
B. Termination and Other Remedies. Spoak may take whatever lawful actions it may deem appropriate in response to actual or suspected violations of these Terms including termination of these Terms, the suspension or termination of your access and/or account, or blocking you from access to the Service.
C. Effect of Termination. The following Sections of these Terms will survive termination or expiration of these Terms: 1.A, 1.B, 1.D, 1.E, 2.C, 2.D, 3–7, 8.C, and 9–30. Payments by you, which accrue or are due before termination or expiration of these Terms, will continue to be payable by you, and amounts owed to Spoak at the time of such termination or expiration, will continue to be owed by you after such expiration or termination.
A. Proprietary Information. You acknowledge and agree that: (1) the Service, including any content, modifications, enhancements and updates, and any originals and copies thereof, in whole or in part, and all intellectual property rights therein (collectively, “Proprietary Information”), is owned by Spoak and its licensors, as applicable; (2) the Proprietary Information contains valuable copyrighted and proprietary material of Spoak; (3) the Proprietary Information is licensed, rather than sold, to you pursuant to these Terms; and (4) you have no rights in the Proprietary Information, other than the rights and licenses specifically granted to you pursuant to these Terms.
B. Trademarks. You acknowledge that Spoak has acquired, and is the owner of, trademark rights in the name and word mark "Spoak" and in the other marks and design marks displayed on the Service. You acknowledge that this name and these marks are famous and internationally known. You will not, at any time or for any reason, challenge the validity of, or Spoak’s ownership of, the foregoing name and marks, and you waive any rights you may have at any time to do so. You may not use our name or marks in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. All use of the foregoing name and marks by you will inure exclusively to the benefit of Spoak. All marks shown on the Service but not owned by Spoak are the property of their respective owners.
10. Claims of Copyright Infringement. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials hosted by Spoak infringe your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information:
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send Spoak a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see www.copyright.gov for details. Notices and counter-notices with respect to the Service should be sent to Spoak via email at email@example.com or via mail at:
Spoak Decor Inc.
427 N. Tatnall St. #82846
Wilmington, Delaware 19801-2230
We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims under the DMCA.
11. Disclaimer of Warranty.
A. DISCLAIMER. TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICE AND PRODUCTS ARE PROVIDED “AS IS” WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. YOU ACKNOWLEDGE THAT, BECAUSE OF THE NATURE OF THE INTERNET, MOBILE NETWORKS, AND THE DEVICES WHICH ACCESS THE INTERNET AND/OR MOBILE NETWORKS, THE SERVICE MAY NOT BE ACCESSIBLE WHEN NEEDED, AND THAT INFORMATION, DATA, AUDIO, AND VIDEO TRANSMITTED OVER THE INTERNET AND/OR MOBILE NETWORKS MAY BE SUBJECT TO INTERRUPTION OR THIRD-PARTY INTERCEPTION AND MODIFICATION. TO THE FULLEST EXTENT PERMITTED BY LAW, SPOAK DISCLAIMS ALL WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, AND ABSENCE OF VIRUSES AND DAMAGING OR DISABLING CODE. TO THE FULLEST EXTENT PERMITTED BY LAW, NONE OF SPOAK, ITS AFFILIATES OR SERVICE PROVIDERS, SPOAK’S CONTENT PROVIDERS, AND/OR THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES, EMPLOYEES, AGENTS, AND/OR CONTRACTORS (COLLECTIVELY, THE “SPOAK PARTIES”) WARRANT THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE SERVICE. SPOAK CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY LOSS, DAMAGES, OR LIABILITIES ARISING FROM THE FAILURE OF ANY TELECOMMUNICATIONS INFRASTRUCTURE, THE INTERNET, ANY PRODUCTS, OR FOR YOUR MISUSE OF ANY CONTENT AND INFORMATION ACCESSED THROUGH THE SERVICE. YOUR USE OF THE SERVICE AND YOUR RELIANCE UPON ANY OF THE RESPECTIVE CONTENT IS AT YOUR SOLE RISK.
B. Third-Party Information. You acknowledge that any information you obtain from another Spoak User or a Partner comes from those individuals, and not from Spoak, and that Spoak, to the fullest extent permitted by law, is not in any way responsible for any of the information these third parties may supply or for any statements, claims, or representations they may make. To the fullest extent permitted by law, Spoak disclaims any such statements, claims, or representations and the same do not expand or otherwise modify these Terms. If you are dissatisfied with the Service, your sole and exclusive remedy is to stop accessing and using the Service.
12. Limitation of Liability.
A. LIMITATION. TO THE FULLEST EXTENT PERMITTED BY LAW: (1) EACH SPOAK USER IS SOLELY RESPONSIBLE FOR: (A) HIS OR HER USE OF THE SERVICE; AND (B) ANY DAMAGES INCURRED BY HIM OR HER OR ANY THIRD PARTY THAT ARISE FROM OR ARE RELATED TO THE SERVICE; (2) THE AGGREGATE LIABILITY OF THE SPOAK PARTIES FOR ANY DAMAGES, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, WILL BE LIMITED TO ACTUAL DAMAGES PROVED, AND NOT TO EXCEED THE GREATER OF: (i) THE AMOUNT PAID BY YOU TO SPOAK FOR THE SERVICE; AND (ii) $10; AND (3) NONE OF THE SPOAK PARTIES WILL BE LIABLE FOR ANY PUNITIVE, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH SPOAK PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
B. THIRD-PARTY PRODUCTS AND SERVICES. TO THE FULLEST EXTENT PERMITTED BY LAW, NONE OF THE SPOAK PARTIES WILL HAVE ANY LIABILITY WHATSOEVER FOR ANY LOSSES, COSTS, OR DAMAGES OF ANY KIND INCURRED OR SUFFERED BY YOU AS A RESULT OF ANY PRODUCTS OR ANY SERVICES PROVIDED BY ANY PARTNERS ACCESSED THROUGH THE SERVICE.
C. INDEPENDENT INVESTIGATION. YOU REPRESENT THAT YOU HAVE INDEPENDENTLY INVESTIGATED THE ADVISABILITY OF USING THE SERVICE AND THE POSSIBLE RISKS INVOLVED IN USING THE SERVICE AND ENGAGING PARTNERS TO PERFORM SERVICES. YOU AGREE TO MAINTAIN YOUR OWN INSURANCE COVERING SUCH RISKS AND WILL LOOK SOLELY TO SUCH INSURANCE FOR REIMBURSEMENT OF ANY RESULTING DAMAGES.
13. Third-Party Disputes. SPOAK IS NOT AFFILIATED WITH ANY PARTNER, OTHER SPOAK USER, CARRIER, SERVICE PROVIDER, OR THIRD-PARTY SERVICE, AND ANY DISPUTE YOU HAVE WITH ANY PARTNER, OTHER SPOAK USER, CARRIER, SERVICE PROVIDER, THIRD-PARTY SERVICE, OR OTHER THIRD PARTY ARISING FROM YOUR USE OF THE SERVICE, INCLUDING YOUR EMPLOYER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE SPOAK (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURERS, AND EMPLOYEES) FROM ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
14. Force Majeure. Spoak will not be liable for any delay or failure to perform any obligation herein if the delay or failure is due to unforeseen events that are beyond Spoak’s reasonable control, such as strikes, blockade, war, terrorism, riots, natural disasters, epidemic, or governmental action.
15. Indemnification and Release.
A. Indemnity. To the fullest extent permitted by law, you will defend, indemnify, and hold the Spoak Parties harmless against any loss or damage of any kind (including attorneys’ fees and lost revenues) arising from: (1) any breaches by you of these Terms or any representation, warranty, or covenant contained in these Terms; (2) any use of the Service not specifically authorized in these Terms or on the Service; and (3) any claims and actions against any Spoak Party by other parties to whom you allow access to the Service.
B. Release. To the fullest extent permitted by law, you further waive, release, and forever discharge the Spoak Parties from any responsibility or liability for injuries or damages resulting from any Products or any service obtained through the use of the Service, including injuries or damages caused by the negligent act or omission of the Spoak Parties or any Partners, or in any way arising out of or connected with the Service.
C. Procedure. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim. You will not, in any event, settle any such claim or matter without our written consent.
16. Additional Service Features.
A. Access to Third-Party Services. The Service may contain information on products and services provided by third parties, including Partners, and links (including advertisements) to third-party websites (collectively, “Third-Party Services”). Third-Party Services are provided only as a convenience to Spoak Users. Spoak does not review or control Third-Party Services, and Spoak does not make any representations or warranties, express or implied, regarding Third-Party Services. Inclusion of any Third-Party Services in the Service does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with Spoak with respect to any Third-Party Services. Spoak is under no obligation to maintain any link on the Service and may remove a link at any time in its sole discretion for any reason whatsoever.
17. Dispute Resolution.
A. Generally. In the interest of resolving disputes between you and Spoak in the most expedient and cost-effective manner, you and Spoak agree that any dispute arising out of or in any way related to these Terms or your use of the Service will be resolved by binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to these Terms or your use of the Service, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the expiration or termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND SPOAK ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS OR COLLECTIVE ACTION. YOU FURTHER UNDERSTAND THAT THESE DISPUTE RESOLUTION TERMS WILL APPLY TO YOU AND SPOAK UNLESS YOU CHOOSE TO OPT OUT PURSUANT TO SECTION 17.I (OPT OUT).
Whether to agree to arbitration is an important business decision. It is your decision to make, and you should not rely solely on the information provided in these Terms as it is not intended to contain a complete explanation of the consequences of arbitration. You should take further steps to conduct research and to consult with others, including an attorney, regarding the consequences of your decision, just as you would when making any other important business or life decision.
B. Exceptions. Despite the provisions of Section 17.A (Generally), nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (1) bring an individual action in small claims court; (2) bring an action in a court pursuant to the California Private Attorneys General Act of 2004, California Labor Code § 2698 et seq.; (3) seek injunctive relief in a court of law; or (4) file suit in a court of law to address an intellectual property infringement claim.
C. Arbitrator. Any arbitration between you and Spoak will be governed by the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Spoak. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
D. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail within the applicable statute of limitations period (“Notice”). Spoak’s address for Notice is: 427 N. Tatnall St. #82846, Wilmington, Delaware 19801-2230. The Notice must: (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Spoak may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Spoak must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Spoak will pay you the highest of the following: (a) the amount awarded by the arbitrator, if any; (b) the last written settlement amount offered by Spoak in settlement of the dispute prior to the arbitrator’s award; or (c) $1,000.
E. Fees. If you commence arbitration in accordance with these Terms, Spoak will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Wilmington, Delaware, but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (1) solely on the basis of documents submitted to the arbitrator; (2) through a non-appearance based telephone hearing; or (3) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Spoak for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
F. No Class Actions. YOU AND SPOAK AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING (OTHER THAN ACTIONS UNDER THE CALIFORNIA PRIVATE ATTORNEYS GENERAL ACT OF 2004, CALIFORNIA LABOR CODE § 2698 ET SEQ. WHICH ARE NOT COVERED BY THIS SECTION 17 (DISPUTE RESOLUTION)). Unless both you and Spoak agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
G. Modifications to this Arbitration Provision. If Spoak makes any future change to this arbitration provision, other than a change to Spoak’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Spoak’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Spoak. If you do not send such written notice, your continued use of the Service following any such change means that you have consented to such change.
H. Enforceability. If Section 17.F (No Class Actions) is found to be unenforceable or if the entirety of this Section 17 (Dispute Resolution) is found to be unenforceable, then the entirety of this Section 17 (Dispute Resolution) will be null and void and the exclusive jurisdiction and venue described in Section 20 (Governing Law; Choice of Forum) will govern any action arising out of or related to these Terms or your use of the Service.
I. Opt Out. Arbitration is not a mandatory condition of these Terms. If you do not want to be subject to this Section 17 (Dispute Resolution), you may opt out of this Section 17 (Dispute Resolution) by notifying Spoak in writing of your decision by sending, within 30 days of the date you receive these Terms, an electronic message to firstname.lastname@example.org, stating clearly your full name and intent to opt out of this Section 17 (Dispute Resolution). Should you choose not to opt out of this Section 17 (Dispute Resolution) within the 30-day period, you and Spoak will be bound by the terms of this Section 17 (Dispute Resolution). You have the right to consult with counsel of your choice concerning this Section 17 (Dispute Resolution). You understand that you will not be subject to retaliation if you exercise your right to opt out of coverage under this Section 17 (Dispute Resolution).
19. Protected Activity Not Prohibited. To the extent permitted by applicable law, nothing in these Terms will in any way limit or prohibit you from filing a charge or complaint with, or otherwise communicating or cooperating with or participating in, any investigation or proceeding (“Protected Activity”) that may be conducted by any federal, state, or local government agency or commission (“Government Agencies”). In connection with such Protected Activity, you are permitted to disclose documents or other information as permitted by law, and without giving notice to, or receiving authorization from, Spoak. In making any such disclosures or communications, you agree to take all reasonable precautions to prevent any unauthorized use or disclosure of any information that may constitute Spoak confidential information to any parties other than the Government Agencies.
20. Governing Law; Choice of Forum. The laws of the State of Delaware, excluding its conflicts of law rules, govern these Terms and your use of the Service. Your use of the Service may also be subject to other local, state, national, or international laws; provided, however, that the United Nations Convention on Contracts for the International Sale of Goods will not apply to any provision of these Terms. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action will be subject to the exclusive jurisdiction of the state and federal courts located in New Castle County, Delaware and you hereby irrevocably submit to personal jurisdiction in such courts, and waive any defense of inconvenient forum.
21. Feedback. If you provide any feedback to Spoak concerning the functionality and performance of the Service (including identifying potential errors and improvements), you hereby assign to Spoak all right, title, and interest in and to such feedback, and Spoak is free to use such feedback without payment or restriction.
23. Severability. If any provision of these Terms is held invalid, illegal, or unenforceable, such provisions will be modified, or if not possible, severed, to reflect the fullest valid, legal, and enforceable expression of the intent of the parties, and the remainder of these Terms will not be affected thereby.
24. Relationship of Parties. Nothing in these Terms will be deemed to create an employer-employee relationship between Spoak and you, nor any agency, joint venture, or partnership relationship between the parties. Neither party will have the right to bind the other to any obligation, nor have the right to incur any liability on behalf of the other.
25. Waiver. No delay, omission, or failure to exercise any right or remedy provided under these Terms will be deemed to be a waiver thereof or an acquiescence to the event giving rise to such right or remedy, or a waiver of or acquiescence to any other right, remedy, or event.
26. Assignment. Neither these Terms nor any of the rights granted to you herein may be assigned or transferred by you, whether voluntarily or by operation of law, without the express prior written permission of Spoak and any attempt to do so will be null and void. Spoak may assign or transfer these Terms at any time without your permission.
27. Third-Party Beneficiaries. The provisions of these Terms relating to the rights of Spoak service providers are intended for the benefit of such service providers, and such service providers, as third-party beneficiaries, will be entitled to enforce such provisions in accordance with these Terms, irrespective of the fact that they are not parties to these Terms.
28. Export Controls. You hereby represent and warrant that: (A) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (B) you are not listed on any U.S. Government list of prohibited or restricted parties.
29. Interpretation. If Spoak provides a translation of the English language version of these Terms, the translation is provided solely for convenience, and the English version will prevail. Any heading, caption, or section title contained in these Terms is for convenience only, and in no way defines or explains any section or provision. Any use of the term “including” or variations thereof in this Agreement shall be construed as if followed by the phrase “without limitation.”
30. NOTICE FOR CALIFORNIA USERS. Under California Civil Code Section 1789.3, Spoak Users located in California are entitled to the following notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.