Last Updated: February 3, 2023
These Terms of Service ("Terms") apply to your access to and use of (a) the website located at https://www.careofchan.com/ (or any successor links) and all associated web pages, websites, and social media pages (the "Website") provided by Sue Chan, LLC dba Care of Chan ("Care of Chan," "we," "our," or "us") and (b) any online services ((a) and (b), collectively, our "Services"). By using our Services, you expressly agree to these Terms. Please carefully review these Terms before using our Services, including, without limitation, the warranty disclaimers and releases set forth in Section 12, which limit our liability and your ability to bring certain claims against us. BY AGREEING TO THESE TERMS, EXCEPT FOR (I) CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 14 (II) WHERE YOU EXERCISE YOUR RIGHT TO OPT OUT OF ARBITRATION AS DESCRIBED IN SECTION 14, OR (III) TO THE EXTENT PROHIBITED BY LAW, DISPUTES BETWEEN YOU AND CARE OF CHAN WILL BE RESOLVED SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, ANY OTHER KIND OF REPRESENTATIVE PROCEEDING, OR BY JURY TRIAL. We may indicate that different or additional terms, conditions, guidelines, policies, or rules apply in relation to some of our Services ("Supplemental Terms"). Any Supplemental Terms become part of your agreement with us if you use the applicable Services, and if there is a conflict between these Terms and the Supplemental Terms, the Supplemental Terms will control for that conflict. We may make changes to these Terms. The "Last Updated" date above indicates when these Terms were last changed. If we make future changes, we may provide you with notice of such changes, such as by sending an email, providing a notice through our Services, or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must immediately stop using our Services. Any changes to these Terms will not apply to any dispute between you and us arising prior to the date on which we posted the updated Terms incorporating such changes or otherwise notified you of such changes.
1 Eligibility and Use Restrictions; Accounts
(a) Eligibility and Use Restrictions. Users under 18 years of age (or the age of legal majority where the user lives) may only use our Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. The parent or legal guardian of a user under the age of 18 (or the age of legal majority) is fully responsible for the acts or omissions of such user in relation to our Services. If you are a parent or legal guardian and you believe that your child under the age of 18 is using our Services without your consent, please contact us at hello@careofchan.com. In using our Services, you represent and warrant that you meet the eligibility requirements to use our Services and have the authority to be bound by these Terms, including, without limitation, if you use our Services on behalf of another person or entity (in which case "you" will include that person or entity and that person or entity agrees to be responsible to us).
(b) Accounts. You may be required to create an account with us in order to use some or all of our Services. You will promptly update any information contained in your account if it changes. You must maintain the security of your account, as applicable, and promptly notify us if you discover or suspect that someone has accessed your account without your permission. We reserve the right to reject, require that you change, or reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.
2 Your Information You may provide certain information to Care of Chan in connection with your use of our Services or we may otherwise collect certain information about you when you use our Services. For information about how we collect, use, share and otherwise process information about you, please see our Privacy Policy. You agree to receive all communications, agreements, and notices that we provide in connection with our Services electronically, including by email, SMS or text message (if you provide your manual consent to opt in to receive SMS or text messages) to the cell phone number associated with your account, or by posting them to your account on the Website or otherwise through our Services. You agree that all communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. Your consent to receive SMS or text messages is not a condition of purchase. You may withdraw your consent to receive communications electronically at any time, but except as it relates to SMS text messages, if you withdraw such consent, you may be unable to use all or a portion of our Services.
3 User Content and Publicity
(a) Sharing User Content. Our Services may allow you and other users to post or share content, including text, photos, and other materials (collectively, "User Content"). If you post or share any User Content, you grant Care of Chan a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable (through multiple tiers) license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly or otherwise perform and display, and exploit your User Content and any name, voice, image, personality, or other likeness provided in connection with your User Content in all media formats and channels now known or later developed, without compensation to you or any third party. You hereby irrevocably waive any "moral rights" or other rights with respect to attribution of authorship or integrity of materials regarding User Content that you may have under any applicable law or under any legal theory. Except for the foregoing license, you retain all rights (including ownership) in and to your User Content.
(b) Restrictions. You may not create, share or display any User Content for which you do not have all the rights necessary to grant us the license described above, and you represent and warrant that your User Content, and our use of such User Content as permitted by these Terms, will not violate any rights of any person or entity, including any third-party rights, or cause injury to any person or entity. You may not create, share or display any User Content that:
▪ Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, or fraudulent;
▪ Would constitute, encourage, or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability, or violate any applicable law;
▪ May infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party;
▪ Contains or depicts any statements, remarks, or claims that do not reflect your honest views and experiences;
▪ Impersonates, or misrepresents your affiliation with, any person or entity;
▪ Contains any unsolicited promotions, political campaigning, advertising, or solicitations;
▪ Contains any private or personal information of a third party without such third party’s consent;
▪ Contains any viruses, corrupted data or other harmful, disruptive, or destructive files or content;
▪ In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Services, or may expose Care of Chan or others to any harm or liability of any type; or
▪ Otherwise violates these Terms.
(c) Enforcement. Enforcement of this Section 3 is solely at Care of Chan's discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. This section does not create any private right of action on the part of any third party or any reasonable expectation that our Services will not contain any content that is prohibited by these Terms or that objectionable material will be promptly removed after it has been posted.
(d) Review. We do not undertake to review all User Content, and we expressly disclaim any duty or obligation to undertake any monitoring or review of any User Content. Although we have no obligation to screen, edit, or monitor User Content, we may:
▪ Delete or remove User Content or refuse to post any User Content at any time and for any reason with or without notice, including without limitation for any violations of applicable law or these Terms;
▪ Terminate or suspend your access to all or part of our Services if your User Content is reasonably likely, in our sole determination, to violate applicable law or these Terms;
▪ Take any action with respect to your User Content that is necessary or appropriate, in Care of Chan’s sole discretion, to ensure compliance with applicable law and these Terms or to protect any third-party rights, including third-party intellectual property and privacy rights (e.g., providing information to copyright owners in furtherance of Digital Millennium Copyright Act ("DMCA") takedown requests); and
▪ Cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through our Services. To learn more about parental control protections (such as computer hardware, software, or filtering services) that may assist you in limiting your minor’s access to certain content, visit https://www.fbi.gov/resources/parents.
4 Prohibited Conduct
(a) General. You will not use our Services if you are not eligible to use our Services in accordance with these Terms and will not use our Services other than for their intended purpose. Without limiting the foregoing, you must always be respectful of other users during your use of our Services.
(b) Specific. Further, you will not:
▪ Use our Services for any purpose other than your personal, non-commercial purpose;
▪ Violate any applicable law, contract, intellectual property right, or other third-party right or commit a tort;
▪ Engage in any harassing, threatening, intimidating, predatory, stalking, discriminatory, or other objectionable conduct or disturb or solicit others;
▪ Use any cameras, video, or other devices designed to or enabled to capture recordings in connection with our Services without our prior written consent; ▪ Use or attempt to use another user's account or information without authorization from that user and Care of Chan;
▪ Impersonate or post on behalf of any person or entity or otherwise misrepresent your affiliation with a person or entity;
▪ Sell or resell our Services;
▪ Copy, reproduce, distribute, publicly perform, or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;
▪ Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services;
▪ Use our Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying our Services or that could damage, disable, overburden, or impair the functioning of our Services in any manner;
▪ Reverse engineer any aspect of our Services or do anything that might discover source code, or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
▪ Use any data mining, robots, or similar data gathering or extraction methods designed to scrape or extract data from our Services except in accordance with instructions contained in our robot.txt file and only to compile for search results;
▪ Develop or use any applications that interact with our Services without our prior written consent;
▪ Send, distribute, or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;
▪ Link to any online portion of our Services; or
▪ Use our Services for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates these Terms.
(c) Enforcement. Enforcement of this Section 4 is solely at Care of Chan’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances.
5 Promotions
Any sweepstakes, contests, raffles, surveys, games, or similar promotions (collectively, "Promotions") made available through our Services may be governed by rules that are separate from these Terms. If you participate in any Promotions, please review the applicable rules as well as our Privacy Policy. If the rules for a Promotion conflict with these Terms, the Promotion rules will govern.
6 Ownership; Limited License
Care of Chan or our licensors own all right title and interest (including intellectual property rights) in and to our Services, including the text, graphics, images, photographs, videos, illustrations, and other content contained therein. Except as expressly stated in these Terms, all rights in and to our Services, including all intellectual property rights therein and thereto, are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services for your own personal, noncommercial use. Any use of our Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein and violate our intellectual property rights.
7 Trademarks
The "Care of Chan" name and our logos, product or service names, slogans, and the look and feel of our Services are trademarks of Care of Chan and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names, and company names or logos mentioned on or in connection with our Services are the property of their respective owners. Reference to any products, services, processes, or other information by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation by us.
8 Feedback
You may voluntarily post, submit, or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials, or other information about Care of Chan or our Services (collectively, "Feedback"). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, or improve the Feedback or our Services, or to improve or develop new products, services, or our Services in Care of Chan’s sole discretion. Care of Chan will exclusively own all improvements to, or new, Care of Chan products or services based on any Feedback. You understand that Care of Chan may treat Feedback as nonconfidential.
9 Repeat Infringer Policy; Copyright Complaints
(a) Our Policy. In accordance with the DMCA and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others (our "DMCA Policy").
(b) Reporting Claims of Copyright Infringement. If you believe that any content on our Services infringes any copyright that you own or control, you may notify Care of Chan’s designated agent (your notification, a "DMCA Notice") as follows:
Designated Agent: Sue Chan
Address: 93 4th Avenue, Box 43 New York, NY 10003
Email Address: hello@careofchan.com
Please see Section 512(c)(3) of the DMCA for the requirements of a proper notification. If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your notice may not be effective. If you knowingly materially misrepresent that any activity or material on our Services is infringing, you may be liable to Care of Chan for certain costs and damages.
(c) Our Response to DMCA Notices. Upon receipt of a DMCA Notice meeting the requirements of Section 512(c)(3) of the DMCA, we may (i) remove or disable access to the allegedly infringing content (the "Allegedly Infringing Content"), (ii) take reasonable steps to notify the user who provided the Allegedly Infringing Content (the "Allegedly Infringing User") that access to the Allegedly Infringing Content has been disabled or the Allegedly Infringing Content has been removed, (iii) notify the party who provided the DMCA Notice with respect to the Allegedly Infringing Content (the "Original Complaining User") of any counter notifications that we receive in accordance with Section 9(d) from the Allegedly Infringing User, and (iv) replace or restore the Allegedly Infringing Content in accordance with Section 9(e). In accordance with our DMCA Policy, if we determine that the Allegedly Infringing User has provided allegedly infringing content numerous times on or through our Services, we may also terminate the account of such user or terminate the ability of such user to add content to our Services.
(d) Counter Notices. If you believe that your content was removed or disabled in accordance with this Section 9 by mistake or misidentification, you may send a counter notice to our designated agent as specified above (your counter notice, a “DMCA Counter Notice”). Please see Section 512(g)(3) of the DMCA for the requirements of a proper counter notification. If you knowingly materially misrepresent that any content on our Services was removed or disabled by mistake or misidentification, you may be liable to Care of Chan for certain costs and damages.
(e) Our Response to DMCA Counter Notices. When Care of Chan receives a DMCA Counter Notice meeting the requirements of Section 512(g)(3) of the DMCA with respect to any Allegedly Infringing Content, Care of Chan may send a copy of the DMCA Counter Notice to the Original Complaining User informing that user that we will replace or restore the Allegedly Infringing Content. Unless our designated agent described in Section 9(b) receives notice that the Original Complaining User files an action seeking a court order against the Allegedly Infringing User within fourteen (14) business days of receiving the copy of the Allegedly Infringing User’s DMCA Counter Notice, we may restore the removed or disabled content.
10 Third Party Materials
(a) Our Services may rely on or interoperate with third-party products and services, including, without limitation, data storage services, communications technologies, IoT platforms, and internet and mobile operators (collectively, "Third-Party Materials"). These Third-Party Materials are beyond our control, but their operation may impact, or be impacted by, the use and reliability of our Services. You acknowledge that (i) the use and availability of our Services is dependent on third-party product vendors and service providers and (ii) these Third-Party Materials may not operate reliably 100% of the time, which may impact the way that our Services operate.
(b) Your access to and use of such Third-Party Materials may be subject to additional terms, conditions, and policies (including terms of service or privacy policies of the applicable third party). You are responsible for obtaining and maintaining any computer hardware, equipment, network services and connectivity, telecommunications services, and other products and services necessary to use our Services.
11 Indemnification
To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless Care of Chan and our subsidiaries and affiliates, and each of our respective officers, directors, employees, partners and agents (individually and collectively, the "Care of Chan Parties") from and against any losses, liabilities, claims, demands, damages, expenses or costs ("Claims") arising out of or related to: (a) your access to or use of our Services (including any acts and/or omissions); (b) your User Content or Feedback; (c) your violation of these Terms; or (d) your violation, misappropriation, or infringement of any rights of another (including intellectual property rights or privacy rights). You will cooperate with the Care of Chan Parties in defending third-party Claims and pay all fees, costs, and expenses associated with defending such third-party Claims (including attorneys' fees). The Care of Chan Parties will have control of the defense or settlement, at Care of Chan's sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Care of Chan or the other Care of Chan Parties.
12 Disclaimer and Release
(a) Disclaimer. YOUR USE OF OUR SERVICES AND ANY SERVICES, CONTENT OR MATERIALS PROVIDED THEREIN OR THEREWITH (INCLUDING THE THIRD-PARTY MATERIALS) IS AT YOUR SOLE RISK. EXCEPT AS OTHERWISE PROVIDED IN A WRITING BY US AND TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, OUR SERVICES AND ANY SERVICES, CONTENT OR MATERIALS PROVIDED THEREIN OR THEREWITH (INCLUDING THE THIRD-PARTY MATERIALS) ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED AND CARE OF CHAN DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE FOREGOING, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, CARE OF CHAN DOES NOT REPRESENT OR WARRANT THAT OUR SERVICES OR ANY SERVICES OR CONTENT PROVIDED THEREIN OR THEREWITH (INCLUDING THE THIRD-PARTY MATERIALS) ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE OR THAT ACCESS TO OUR SERVICES OR ANY SERVICES OR CONTENT PROVIDED THEREIN OR THEREWITH (INCLUDING THE THIRD-PARTY MATERIALS) WILL BE UNINTERRUPTED. WHILE CARE OF CHAN ATTEMPTS TO MAKE YOUR USE OF OUR SERVICES AND ANY SERVICES AND CONTENT PROVIDED THEREIN OR THEREWITH (INCLUDING THE THIRD-PARTY MATERIALS) SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT OUR SERVICES OR ANY SERVICES OR CONTENT PROVIDED THEREIN OR THEREWITH (INCLUDING THE THIRD-PARTY MATERIALS) OR OUR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR CONTENT OR MATERIALS. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF OUR SERVICES AND ANY SERVICES OR CONTENT PROVIDED THEREIN OR THEREWITH (INCLUDING THE THIRD-PARTY MATERIALS).
(b) Release. YOU HEREBY SPECIFICALLY, FULLY AND FOREVER RELEASE, COVENANT NOT TO SUE, DISCHARGE, AND INDEMNIFY AND HOLD HARMLESS THE CARE OF CHAN PARTIES FROM AND AGAINST ANY AND ALL CLAIMS (AS DEFINED IN SECTION 11) RELATED TO DISPUTES BETWEEN USERS AND THE ACTS OR OMISSIONS OF ANY THIRD PARTIES. YOU UNDERSTAND THAT THIS WAIVER MEANS YOU GIVE UP YOUR RIGHT TO BRING ANY CLAIMS, INCLUDING, WITHOUT LIMITATION, FOR PHYSICAL OR EMOTIONAL INJURIES, DEATH, DISEASE OR PROPERTY LOSSES, OR ANY OTHER LOSS, INCLUDING, WITHOUT LIMITATION, CLAIMS FOR NEGLIGENCE, AND YOU GIVE UP ANY CLAIM YOU MAY HAVE TO SEEK DAMAGES, WHETHER KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN.
If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party."
(c) Beneficiaries. ALL DISCLAIMERS AND RELEASES OF ANY KIND (INCLUDING IN THIS SECTION 12 AND ELSEWHERE IN THESE TERMS) ARE MADE FOR THE BENEFIT OF CARE OF CHAN, THE OTHER CARE OF CHAN PARTIES, AND THE CARE OF CHAN PARTIES' RESPECTIVE SHAREHOLDERS, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS, AND SERVICE PROVIDERS, AS WELL AS THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
13 Limitation of Liability
(a) Waiver of Certain Damages. To the fullest extent permitted by applicable law, Care of Chan and the other Care of Chan Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive, or special damages or lost profits, even if Care of Chan or the other Care of Chan Parties have been advised of the possibility of such damages.
(b) Liability Cap. The total liability of Care of Chan and the other Care of Chan Parties to you (whether occurring under these Terms or otherwise), regardless of the form of the action, is limited to the amount paid by you to use our Services giving rise to the claim or $100 USD, whichever is greater.
(c) Exclusions. The limitations set forth in this Section 13 will not limit or exclude liability for the gross negligence, fraud, or intentional misconduct of Care of Chan or the other Care of Chan Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
14 Dispute Resolution; Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND CARE OF CHAN TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH WE CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND CARE OF CHAN FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND CARE OF CHAN AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. CARE OF CHAN AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT.
(a) Arbitrable Claims. For any dispute or claim that you have against Care of Chan, that Care of Chan has against you or that you have, or Care of Chan has, in each case arising from, relating to, or stemming from these Terms, our Services or any aspect of the relationship between you and Care of Chan as relates to these Terms or our Services, including any privacy or data security claims (collectively, "Arbitrable Claims," and each an "Arbitrable Claim"), you and Care of Chan agree to attempt to first resolve the Arbitrable Claim informally via the following process. If you assert an Arbitrable Claim against Care of Chan, you will first contact Care of Chan by sending a written notice of your Arbitrable Claim ("Claimant Notice") to Care of Chan by certified mail addressed to 93 4th Avenue, Box 43, New York, NY 10003 or by email to hello@careofchan.com. The Claimant Notice must (i) include your name, residence address, email address, and telephone number; (ii) describe the nature and basis of the Arbitrable Claim; and (iii) set forth the specific relief sought. If Care of Chan asserts an Arbitrable Claim against you, Care of Chan will first contact you by sending a written notice of Care of Chan’s Arbitrable Claim ("Care of Chan Notice"), and each of a Claimant Notice and Care of Chan Notice, a "Notice") to you via email to the primary email address associated with your account. The Care of Chan Notice must (A) include the name of a Care of Chan contact and the contact’s email address and telephone number; (B) describe the nature and basis of the Arbitrable Claim; and (C) set forth the specific relief sought. If you and Care of Chan cannot reach an agreement to resolve the Arbitrable Claim within thirty (30) days after you or Care of Chan receives such a Notice, then either party may submit the Arbitrable Claim to binding arbitration as set forth below. The statute of limitations and any filing fee deadlines shall be tolled for thirty (30) days from the date that either you or Care of Chan first send the applicable Notice so that the parties can engage in this informal dispute-resolution process.
(b) Binding Arbitration. Except for (i) individual disputes that qualify for small claims court or (ii) any disputes exclusively related to the intellectual property or intellectual property rights of you or Care of Chan, including any disputes in which you or Care of Chan seek injunctive or other equitable relief for the alleged unlawful use of your or Care of Chan's intellectual property rights or other infringement of your or Care of Chan’s intellectual property rights ("IP Claims"), all Arbitrable Claims, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, including, with respect to Arbitrable Claims that are not related to intellectual property or intellectual property rights but are jointly filed with IP Claims, that are not resolved in accordance with Section 14(a) will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury. Such Arbitrable Claims include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. The arbitrator will have the authority to grant any remedy or relief that would otherwise be available in court.
(c) Governance. These Terms affect interstate commerce, and the enforceability of this Section 14 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq., to the extent permitted by law.
(d) Submission. All Arbitrable Claims must be submitted to the American Arbitration Association ("AAA") and will be resolved through binding arbitration before one arbitrator. If you are a consumer, the then-current version of the AAA’s Consumer Arbitration Rules will apply, which are available on the AAA’s website (adr.org), as amended by these Terms as follows:
1. YOU AND CARE OF CHAN AGREE THAT ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND YOU AND CARE OF CHAN ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitrator may conduct only an individual arbitration and, except as described below for the additional procedures to govern if twenty-five (25) or more similar or coordinated claims are asserted against Care of Chan or you by the same or coordinated counsel, may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual.
2. For any arbitration you initiate, you will pay the consumer filing fee, and Care of Chan will pay the remaining AAA fees and costs. For any arbitration initiated by Care of Chan, Care of Chan will pay all AAA fees and costs.
3. For all arbitrations where the claims asserted are $25,000 or less, the arbitration shall be resolved according to the AAA’s Procedures for the Resolution of Disputes through Document Submission, and for all other arbitrations the following procedure will apply: (a) the arbitrator will conduct hearings, if any, by teleconference or videoconference rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate; (b) any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances; and (c) if the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator.
4. If you or Care of Chan submits a dispute to arbitration and the arbitrator orders any exchange of information, you and Care of Chan agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and/or other materials that might be exchanged or the subject of discovery in the arbitration. You and Care of Chan agree to seek such protection before any such information, documents, testimony, and/or materials are exchanged or otherwise become the subject of discovery in the arbitration.
5. The arbitrator's decision will follow these Terms and will be final and binding. The arbitrator will have authority to award temporary, interim, or permanent injunctive relief or relief providing for specific performance of these Terms but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will preclude you from bringing issues to the attention of federal, state, or local agencies and, if the law allows, they can seek relief against us for you.
6. The AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule will apply if twenty-five (25) or more similar claims are asserted against Care of Chan or against you by the same or coordinated counsel or are otherwise coordinated. In addition to the application of the AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule, you and Care of Chan understand and agree that when twenty-five (25) or more similar claims are asserted against Care of Chan or you by the same or coordinated counsel or are otherwise resolved, your or Care of Chan’s Arbitrable Claim might be delayed. For such coordinated actions, you and Care of Chan also agree to the following coordinated bellwether process. Counsel for the claimants and counsel for Care of Chan shall each select ten (10) cases (per side) to proceed first in individual arbitration proceedings as part of a bellwether process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a bellwether process. If the parties are unable to resolve the remaining cases after the conclusion of the initial twenty (20) proceedings, each side shall select another ten (10) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a bellwether process. A single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise. This staged process shall continue, consistent with the parameters identified above, until all the claims included in these coordinated filings, including your case, are adjudicated or otherwise resolved. The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this staged process from the time the first cases are selected for a bellwether process until the time your case is selected for a bellwether process, withdrawn, or otherwise resolved. A court shall have authority to enforce this paragraph and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against Care of Chan or you.
(e) One Year to Assert Claims. To the extent permitted by law, any Arbitrable Claim by you or Care of Chan relating in any way to these Terms, our Services, or any aspect of the relationship between you and Care of Chan as relates to these Terms or our Services, must be filed within one year after such Arbitrable Claim arises; otherwise, the Arbitrable Claim is permanently barred, which means that you and Care of Chan will not have the right to assert the Arbitrable Claim.
(f) Opt-Out Right. You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted these Terms by providing us with notice of your decision to opt-out via email at hello@careofchan.com or by certified mail addressed to 93 4th Avenue, Box 43, New York, NY 10003. In order to be effective, the opt-out notice must include your full name, mailing address, and email address. The notice must also clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 15.
(g) Severability. If any portion of this Section 14 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from these Terms; (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 14 or the parties' ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 14; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 14 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 14 will be enforceable.
(h) Other Jurisdictions. Notwithstanding anything to the contrary in the Terms, if you reside in any country outside of the United States, you may bring legal proceedings regarding the Terms either by following the arbitration procedure detailed above in this Section 14 or, if given the right by applicable law, by submitting the dispute to an arbitration administrator in the jurisdiction in which you reside. To the extent any proceeding is not subject to arbitration under applicable law, you may submit the dispute to the courts of the jurisdiction in which you reside.
15 Governing Law
These Terms and any claims made hereunder (including Arbitrable Claims) will be governed by and construed and enforced in accordance with the laws of the State of New York, except to the extent preempted by U.S. Federal Law, without regard to conflict of law rules or principles (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. If any Arbitrable Claim is not subject to arbitration pursuant to Section 14, then the state and federal courts located in Manhattan, New York will have exclusive jurisdiction. You and Care of Chan irrevocably waive any objection to venue in any such courts. If your local law requires that consumer contracts be interpreted subject to local law and enforced in the courts of that jurisdiction, this section may not apply to you only to the extent that local law conflicts with this section.
16 Modifying and Terminating Our Services
We may: (a) modify our Services or suspend or terminate providing all or part of our Services at any time; (b) charge, modify, or waive any fees required to use our Services; or (c) offer opportunities to some or all end users of our Services. We may provide you with notice in advance of the suspension or discontinuation of all or part of our Services, such as by sending an email or providing a notice through our Services. All modifications and additions to our Services will be governed by these Terms or Supplemental Terms, unless otherwise expressly stated by Care of Chan in writing. You also have the right to stop using our Services at any time, and you may terminate these Terms by ceasing use of our Services. We are not responsible for any loss or harm related to your inability to access or use our Services.
17 Severability
If any portion of these Terms other than Section 14 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable: (a) the unenforceable or unlawful provision will be severed from these Terms; (b) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of these Terms; and (c) the unenforceable or unlawful provision may be revised to the extent required to render the Terms enforceable or valid, and the rights and responsibilities of the parties will be interpreted and enforced accordingly, so as to preserve the Terms and the intent of the Terms to the fullest possible extent.
18 Miscellaneous
Care of Chan's failure to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. These Terms reflect the entire agreement between the parties relating to the subject matter hereof and supersede all prior agreements, representations, statements, and understandings of the parties. The section titles in these Terms are for convenience only and have no legal or contractual effect. Use of the word "including" will be interpreted to mean "including without limitation." Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. Communications and transactions between us may be conducted electronically.