1. Acceptance of Terms & Registration
1.1 This User Terms of Service (the “TOS”) is an agreement between you and CleVerHP LLC (“CleVer Family” or “we”), that you must accept in order to use the Clever Family mobile application (“CleVer Family App”), content, Website (as defined below), and other services owned or operated by CleVer Family (our “Services”). The TOS is applicable to you as a user of the Services (“you” or “user”). This document describes both your rights and your obligations as part of using the Services and it is important that you read it carefully. By using the Services, you agree to be bound by the terms and conditions described below. If you do not agree with any of these terms, please do not use the Service. For your convenience, we have provided a truncated summary of each section of our Terms of Service, however, you should read the entire Terms of Service, and in the event of a conflict between the summary version and full version, the full version shall apply.
ARBITRATION NOTICE: THIS TOS CONTAINS AN ARBITRATION CLAUSE IN SECTION 15 BELOW. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT ARBITRATION CLAUSE, YOU AND CLEVER FAMILY AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU AND CLEVER FAMILY WAIVE ANY RIGHT TO A JURY TRIAL OR TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
2. Description of the Services.
The “Services” include all aspects of the CleVer Family App and website accessed at https://cleverfamilyapp.com (the “Website”), including but not limited to all software, applications, data, reports, text, images, and other content, functionality and services made available through the Website and the CleVer Family App, including Third Party Content. Any new features added to or augmenting the Services are also subject to this TOS. CleVer Family reserves the right to modify or discontinue the Services or any of its feature or functionality at any time without notice to you. You acknowledge that certain Services may be in beta version, so that all anticipated functionality may not be readily available.
4. Content: License and Responsibilities.
4. 1 Your “Content” means any data, information and content stored, collected or transmitted via the Services by you, including without limitation messages you send, profile information, text, software, scripts, graphics, photos, sounds, videos, audiovisual combinations, information, interactive features and materials you may view on, access through, or contribute to the Service, all of which may contain the likeness of individuals, and anything else you enter or upload onto the CleVer Family App.
4.3 You are responsible for your Content and all communications with others while using the Services. We may choose to review your Content for compliance with this TOS and our policies and guidelines, but you acknowledge that CleVer Family has no obligation to monitor any Content or information on the Services. We are not responsible for the accuracy, appropriateness, or legality of your Content or any other information that you or other users may be able to access using the Services. You agree that CleVer Family may remove or disable any Content from the Services at any time for any reason or for no reason at all.
5. Prohibited Content and Prohibited Conduct.
5. 1 You agree that you will not post, exchange, make available, provide, process, or otherwise exploit any Prohibited Content. “Prohibited Content” includes Content that:
5.1.1 infringes third party rights, including any intellectual property rights (e.g., copyright, trademark, patent, and trade secret rights), publicity/privacy rights, contract rights or otherwise;
5.1.2 is knowingly false or intended to mislead, confuse, impersonate or deceive others;
5.1.3 promotes illegal, violent, or harmful activities or substances;
5.1.4 is harassing, threatening or insulting to others;
5.1.5 violates any law, including without limitation privacy rules, regulations, and best practices;
5.1.6 is defamatory, obscene, pornographic, vulgar or offensive;
5.1.7 involves the transmission of “junk mail,” or unsolicited mass mailings; or
5.1.8 creates liability for CleVer Family or otherwise violates this TOS.
5.2 You agree that you will not initiate, engage in, or encourage any Prohibited Conduct in connection with your use of our Services. “Prohibited Conduct” includes doing things like:
5.2.1 introducing any viruses, trojan horses, worms, logic bombs or other material that is malicious or technologically harmful, or otherwise attack or interfere with the Services;
5.2.2 Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Services, the server on which the Services is stored, or any server, computer or database connected to the Services or use any robot, spider or other automatic device, process or means to access the Services for any purpose;
5.2.3 restricting or inhibiting any other user from using and enjoying the Services;
5.2.4 promoting, encouraging, advocating, or providing information about illegal activities;
5.2.5 harassing or threatening other users;
5.2.6 impersonating another person or representing yourself as affiliated with us or other industry professionals;
5.2.7 soliciting passwords, account information or other personal information from other users;
5.2.8 conducting commercial activities and/or promotions or advertisements;
5.2.9 using the Services for fraudulent transactions or for any purpose that violates any applicable local, state, national, or foreign laws, regulations, or treaties; or
5.2.10 otherwise creating liability for CleVer Family.
Except for the licenses we grant each other in this TOS, CleVer Family retains ownership in the CleVer Family’s Services, and you retain ownership in your Content.
9. Copyright Policy.
9.1 It is our policy to remove, or disable access to, material that infringes any copyright on our Services after we have been notified by the copyright owner or the copyright owner’s legal agent of the infringement. It is also our policy to terminate a repeat infringer’s access to the Services. If you believe that your work has been copied and posted on through our Services in a way that constitutes copyright infringement, please refer to our Copyright Policy found [here] for how to file a Digital Millennium Copyright Act notice.
CleVer Family will remove material that infringes on any copyright upon proper notice to CleVer Family. Repeat infringers will be restricted from using CleVer Family’s Services. If you believe your work has been copied, please notify our copyright agent in writing by following the instructions in our Copyright Policy found here.
10. Third Party Services.
CleVer Family is not responsible for your uses of CleVer Family’s Services or for your Content. If you do something that causes harm to either Clever Family or a third party relating to your use of the Services or your Content, then you are responsible for handling that claim and paying for all the costs relating to that claim.
PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU AND CLEVER FAMILY TO AGREE TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION.
15.1 Applicability of Arbitration Agreement. You and CleVer Family agree that all claims and disputes arising out of this TOS or the use of the Services that cannot be resolved in small claims court will be resolved by binding arbitration on an individual basis, except that you and CleVer Family are not required to arbitrate any dispute in which either party seeks equitable or injunctive relief for matters related to intellectual property.
15.2 Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration will be initiated through the American Arbitration Association (“AAA”) and will be governed by the AAA Consumer Arbitration Rules, available here as of the date of this TOS, or by calling the AAA at 1-800-778-7879. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with this TOS. The arbitration will be conducted by a single neutral arbitrator. Any claims or disputes where the total amount sought is less than $25,000 USD may be resolved through submission of documents only, unless a party requests a hearing, or the arbitrator decides that a hearing is necessary. If an in-person hearing is to be held and if the parties do not agree to the locale where the hearing is to be held, the AAA initially will determine the locale of the arbitration, and if a party does not agree with the AAA’s decision, that party can ask the arbitrator, once appointed, to make a determination pursuant to the AAA rules. Any judgement on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
15.3 Additional Rules for Non-appearance Arbitration. If non-appearance arbitration is elected, the arbitration will be conducted by telephone or submission of documents only. The arbitration will not involve any personal appearance by the parties or witnesses unless the parties mutually agree otherwise.
15.4 Fees. If you choose to arbitrate with CleVer Family, you will only have to pay a filing fee of $200. That is because the AAA’s Consumer Arbitration Rules provide that aside from the consumer filing fee, any other administrative fees and arbitrator compensation are our responsibility. You are still responsible for the full amount of any damages that may be awarded to Clever Family.
15.5 Authority of the Arbitrator. The arbitrator will decide the jurisdiction of the arbitrator and the rights and liabilities, if any, of you and CleVer Family. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to grant monetary damages and to grant any non-monetary remedy or relief available to an individual under law, the arbitral forum’s rules, and this TOS. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and CleVer Family.
15.6 Waiver of a Jury Trial. YOU AND CLEVER FAMILY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and CleVer Family are instead electing to have claims and disputes resolved through arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and CleVer Family over whether to vacate or enforce an arbitration award, YOU AND CLEVER FAMILY WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute resolved by a judge.
15.7 Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed unenforceable, neither you nor CleVer Family are entitled to arbitration; instead all claims and disputes will be resolved in a court of law as set forth in Section 16.
15.8 Right to Waive. Any rights and limitations set forth in this arbitration agreement may be waived by the party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this arbitration agreement.
15.9 Opt-out. You may opt out of this arbitration agreement. If you do so, neither you nor CleVer Family can force the other to arbitrate. To opt out, you must notify CleVer Family in writing no later than 30 days after first becoming subject to this arbitration agreement. Your notice must include your name and address, your CleVer Family username and the email address you used to set up your CleVer Family account, and an unequivocal statement that you want to opt out of this arbitration agreement. You must email the opt-out notice to: firstname.lastname@example.org.
15.10 Small Claims Court. Notwithstanding the foregoing, either you or CleVer Family may bring an individual action in small claims court.
15.11 Arbitration Agreement Survival. This arbitration agreement will survive the termination of your relationship with CleVer Family.
16. Resolving Disputes.
Most user concerns can be resolved quickly and to the users’ satisfaction by emailing email@example.com. To the extent that this TOS allows you and CleVer Family to initiate litigation in a court of law, we each agree to resolve those disputes exclusively in the courts located in New York County, New York. This TOS shall be governed and interpreted by and under the laws of the State of New York, without giving effect to any conflicts of laws principles that would require the application of the law of a different state or jurisdiction and excluding The United Nations Convention on Contracts for the International Sale of Goods.
17. General Provisions.
Clever Family 2018