Last Updated: August 23, 2022
Welcome, and thank you for your interest in Checkerspot, Inc. (“Checkerspot,” “we,” “our,” or “us”) and our materials and products (collectively, “Products”) and website at www.wndr-alpine.com, along with our related websites, networks, applications, and other services provided by us (collectively, the “Service”). These Terms of Sale and Service (these “Terms”) are a legally binding contract between you and Checkerspot regarding the Products and your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
BY SUBMITTING AN ORDER FOR PRODUCTS, CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE PRODUCTS AND SERVICE, YOU AGREE TO
CHECKERSPOT’S PROVISION OF THE PRODUCTS AND/OR THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY CHECKERSPOT AND BY YOU TO BE BOUND BY THESE TERMS. THESE TERMS, AND THE TERMS CONTAINED IN ANY SAMPLING AGREEMENT, SERVICES AGREEMENT, OR INGREDIENT TRANSFER AGREEMENT ENTERED INTO BY AND BETWEEN CHECKERSPOT AND YOU (IF ANY), CONSTITUTE THE SOLE AND EXCLUSIVE AGREEMENT BETWEEN CHECKERSPOT AND YOU WITH RESPECT TO THE SALE OF
PRODUCTS, PROVISION OF SERVICES AND USE OF THE SERVICE, AS APPLICABLE, AND ANY DIFFERENT OR ADDITIONAL TERMS ARE HEREBY EXPRESSLY REJECTED AND ARE VOID (INCLUDING ANY DIFFERENT
OR ADDITIONAL TERMS CONTAINED IN A CUSTOMER PURCHASE ORDER OR OTHER DOCUMENT).
ARBITRATION NOTICE. EXCEPT FOR CERTAIN KINDS OF DISPUTES DESCRIBED IN SECTION 18 , YOU AGREE THAT DISPUTES ARISING UNDER THESE TERMS WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND BY ACCEPTING THESE TERMS, YOU AND CHECKERSPOT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR
RIGHTS UNDER THIS CONTRACT (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT). YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY. (SEE SECTION 18 .)
1. Products and Service Overview. Checkerspot is a materials innovation company. Checkerspot's technology expands the palette of materials available to product designers and enables a more intentional way to design performance materials for specific applications. Our technology platform enables the design of new materials, at the molecular level. Through applications development, we
prototype and iterate on specific product embodiments. By engaging directly with product users and collaborating with socially responsible partners, we design and bring to market superior products with better materials. The WNDR™ brand animates these materials in a high-performance consumer product. Because in the mountains, materials matter. Using the Checkerspot science platform, we're building a lineup of alpine recreation products designed and built with unique, bio-
based materials to improve performance in the situations where it matters the most. These Terms are an essential component of the Service. In addition, please carefully review the WNDR Shipping, Returns and Warranty Policies before submitting an order for products through the service. Each of the WNDR Shipping, Returns and Warranty Policies are incorporated by this reference into, and made a part of, these Terms.
2. Eligibility. You must be at least 16 years old to submit an order for the Products (an “Order”) and to use the Service, if you are under 16 years of age, you may not submit an Order nor may you access or use the Service. If you are under the age of 18, your parent or guardian must agree to these Terms on your behalf and both you and your parent or guardian agrees to be bound by these Terms. Minors between the ages of 16 through 17 may only make purchases with authorization
from a parent or guardian. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old or the parent or guardian of a minor between the ages of 16 through 17; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your submission of an Order and use of the Service are in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms. If you believe that your account is no longer secure, then you must immediately notify us at firstname.lastname@example.org.
4. Pricing; Promotions; Payment and Shipping
4.1 Price. Checkerspot reserves the right to determine the price of Products sold through the Service and to adjust the price of Products from time to time. Despite our best efforts, a few items on our Service may be mispriced; if the actual price is higher than the mispriced amount, at our discretion we may either contact you with instructions or cancel the Order and provide notice of such cancellation. Prices shown on the Service are in US Dollars and are exclusive of taxes, shipping
and handling. Sales tax will be charged on Orders when applicable. All Prices are Ex Works (INCOTERMS 2020) Checkerspot designated facility.
4.2 Promotions. Checkerspot, at its sole discretion, may offer promotional pricing, codes or other offers to you (“Promotions”). Promotions cannot be used on past purchases. Promotions are non-transferable and there is no cash alternative. Promotions cannot be used in conjunction with other Promotions or offers, and must be used by the date published if any. We reserve the right at any time without notice to retract or change any Promotions.
4.4 Payment Authorization. You acknowledge and agree that the credit or debit card being used is yours or that you have been specifically authorized by the owner of such card to use it. All card holders are subject to validation and authorization by the issuer of the card. If the issuer of your payment card refuses to authorize payment to us, we will not be liable for any non-delivery or delay of Orders. Payment will be debited and cleared from your account upon dispatch of your Order by Checkerspot.
4.5 Shipping. We provide standard shipping on select items or charge a premium shipping fee per item. If shipping fees apply, such fee amounts will be provided to you in your shopping cart once you have designated the delivery address for items. We will also charge sales tax when applicable. Other fees may apply as well.
5. Order Process.
5.1 Order Acceptance. All Orders must be accepted by us, subject to our sole discretion. Checkerspot is not obligated to sell Products to you. Acceptance of your Order and the formation of the contract of sale between Checkerspot and you will not take place unless and until you have received your Order confirmation email after you have placed your Order. The Order confirmation email will provide you with your Order number and details of the products you have purchased.
5.1 Risk of Loss. All items purchased and delivered from Checkerspot are made pursuant to a carrier shipment contract; risk of loss and title for such items pass to you upon our delivery to the carrier.
5.2 Packing and Shipping. Checkerspot shall package Product in the customary manner. Packaging will be filled to applicable capacity to manage load efficiency. Any shipment, delivery or service completion dates set forth in an Order confirmation email or on the Service are estimates only and actual shipment, delivery or service completion dates may vary.
5.3 Shipments. Accepted Orders, once ready, will be shipped on weekdays, excluding weekends and national holidays, and during normal business hours.
6. Risk of Loss; Title; Return, Refunds or Exchange
6.1 Risk of Loss. All items purchased and delivered from Checkerspot are made pursuant to a carrier shipment contract; risk of loss and title for such items pass to you upon our delivery to the carrier.
6.2 Title. Checkerspot only takes title of returned items once they arrive at our warehouse.
6.3 Returns, Refund or Exchange. Checkerspot allows customers to make returns, refunds and exchanges; for more information about our Returns and Exchange policy click here. Please also see our Binding Mounting Terms and Conditions here.
7. Item Descriptions. Despite our best efforts to provide accurate details about our Products or any other items or content on the Service, Checkerspot does not warrant that Product or item descriptions and other content of the Service is accurate, error-free, reliable, current, or complete.
8.1 Limited License. Subject to your complete and ongoing compliance with these Terms, Checkerspot grants you, solely for your personal use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use an object code copy of any mobile application associated with the Service obtained from a legitimate marketplace on a mobile device
that you own or control; and (b) access and use the Service. You and Checkerspot expressly agree and covenant that your use of the Service or the sale of Products shall not be construed as granting any right, ownership, license, interest or claim of any nature in any trademark, service mark, patent, trade secret, invention, intellectual property right or confidential information of Checkerspot.
8.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Products and/or Service, you may not use the Products and/or Service, as applicable.
8.3 Feedback. If you choose to provide input and suggestions regarding proposed modifications, improvements, or problems with the Service (“Feedback”), then you hereby grant Checkerspot an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
9. Proprietary Rights. UNAUTHORIZED REPRODUCTION, REPUBLICATION, COPYING, MODIFICATION, UPLOADING, DOWNLOADING, POSTING, TRANSMISSION, CREATION OF DERIVATIVE WORKS OR DUPLICATING ANY OR ALL PARTS OF THE SERVICE IS STRICTLY PROHIBITED. IN ADDITION, YOU EXPRESSLY AGREE NOT TO COPY, REVERSE ENGINEER, DISASSEMBLE OR DECOMPILE ANY PRODUCTS NOR CAUSE, INDUCE OR PERMIT OTHERS TO DO SO.
9.1 Ownership. Checkerspot is, and will remain, the sole and exclusive owner of all intellectual property rights in and to the Products and any related specifications, instructions, documentation or other materials made available on the Service, including, but not limited to, all related copyrights, trademarks, patents and other intellectual property rights. In addition, the visual interfaces, graphics, design, photos, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by Checkerspot are protected by intellectual property and other laws. All Materials included in the Service are the property of Checkerspot or its third party licensors. Except as expressly authorized by Checkerspot, you may not make use of the Materials. Checkerspot reserves all rights to the Materials not granted expressly in these Terms.
9.2 Trademarks. Checkerspot, the stylized butterfly, WNDR, the stylized owl, AlgalTech ® , Pollinator™, Wing™ and SpiralMade™ are trademarks, trade names, marks, and/or brand names (collectively “Marks”) of Checkerspot. In addition, logos, graphics, button icons, page headers, Service visuals and service names included in or made available through the Service and/or on Products are Marks or trade dress of Checkerspot. Checkerspot’s Marks and trade dress may not be used in connection with any product or service that is not Checkerspot’s, in any manner that is likely to cause confusion among consumers, or in any manner that disparages Checkerspot’s goodwill. All Marks that appear on the Service and/or on Products that are not owned by Checkerspot are the property of their respective owners, that may or may not be affiliated with, connected to, or sponsored by Checkerspot.
10. Third Party Terms
10.1 Third Party Services and Linked Websites. Checkerspot may provide tools through the Service that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on Checkerspot with an account on the third party service, such as Shopify, Twitter, Instagram or Facebook, or through our implementation of and API or third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that Checkerspot may transfer that information to the applicable third party service. Third party services are not under Checkerspot’s control, and, to the fullest extent permitted by law, Checkerspot is not responsible for any third party service’s use of your exported information. The Service may also contain links to third party websites. Linked websites are not under Checkerspot’s control, and Checkerspot is not responsible for their content.
10.2 Third Party Software. The Service may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses.
11. User Content
11.1 User Content Generally. Certain features of the Products and/or Service may request or permit users to upload content to the Service or otherwise transmit content to Checkerspot, including messages, reviews, photos, video, images, text, and other types of works (“User Content”) and to publish User Content on the Service. Subject to the license below, you retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service or otherwise transmit content to Checkerspot.
11.2 Limited License Grant to Checkerspot. By providing User Content to or via the Service, you grant Checkerspot a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
11.3 Ratings and Reviews. User ratings and reviews are User Content and subject to the license granted in section 10.2. You may rate and review items you have purchased from the Service; you understand and agree that all reviews must follow our Terms, we may remove ratings or reviews that violate our Terms or as required by law. Checkerspot may at any time and without prior notice and at our sole discretion, screen, remove, edit, or delete any user reviews for any reason or no reason, with or without notice. All ratings and reviews of items displayed to you reflect the opinions of other consumers, and do not reflect or represent our opinions or representations. We make no representations or warranties with respect to the accuracy, completeness or timeliness of any content posted on the Service by anyone. We disclaim any and all representations or warranties with regard to the ratings and reviews.
11.4 Limited License Grant to Other Users. By providing User Content to or via the Service to other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
11.5 User Content Representations and Warranties. Checkerspot disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant that:
a. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Checkerspot and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Checkerspot, the Service, and these Terms;
b. your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) 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; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Checkerspot to violate any law or regulation; and
c. your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
11.6 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Checkerspot may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Checkerspot with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice.
11.8 Notification Process. If you believe that materials available on the Service infringe your copyright, please let us know. You may file a notice in compliance with the Digital Millennium Copyright Act, 17 U.S.C. §512 (“DMCA”), by contacting our DMCA designated agent:
Checkerspot, Inc. DMCA Agent
1250 Marina Village Parkway
Alameda, CA 94501
Phone: (510) 842-0557
See 17 U.S.C. §512(c)(3) for the requirements of a proper notification. Please note that if you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorney's; fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing. If a notice of copyright infringement has been filed regarding material posted by you, you may file a counter-notification in compliance with 17 U.S.C. §512(g)(3) with our DMCA Agent listed above. If we receive a valid counter-notification, we may reinstate the removed or disabled material in accordance with the DMCA
11. Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
a. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
b. harass, threaten, demean, embarrass, or otherwise harm any other user of the Service;
c. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
d. interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
e. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
f. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
g. sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 7) or any right or ability to view, access, or use any Materials; or
h. attempt to do any of the acts described in this Section 12 or assist or permit any person in engaging in any of the acts described in this Section 12.
13. Modification of the Service and Terms
13.1 Modification of the Service. We reserve the right to modify or discontinue any Products and/or the Service at any time (including by limiting or discontinuing certain features of the Products and/or Service), temporarily or permanently, without notice to you. We will have no liability for any change to the Products and/or Service or any suspension or termination of your access to or use of the Products and/or Service.
13.2 Modification of these Terms. We reserve the right to change these Terms on an on-going basis at any time with or without notice. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 12, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
14. Term and Termination
14.1 Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 14.2.
14.2 Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, Checkerspot may, at its sole discretion, terminate these Terms or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice.
14.3 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; and (b) you will no longer be authorized to access your account or the Service. Sections 8.3 , 9 , 11 , 12 , 14.3 , 15 , 16 , 17 , 18 and 19 will survive termination of these Terms.
15. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Checkerspot and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Checkerspot Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
16. Disclaimers; No Warranties
THE PRODUCTS, THE SERVICE AND ALL MATERIALS AND CONTENT ACCOMPANYING THE PRODUCTS AND/OR AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. EXCEPT AS SET FORTH IN THE WNDR WARRANTY POLICY, CHECKERSPOT DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE PRODUCTS, THE SERVICE AND ALL MATERIALS AND CONTENT ACCOMPANYING THE PRODUCTS AND/OR AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. CHECKERSPOT DOES NOT WARRANT THAT THE PRODUCTS, THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT ACCOMPANYING THE PRODUCTS AND/OR AVAILABLE THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND CHECKERSPOT DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE, STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OR PERFORMANCE OR OTHER CONDUCT OBTAINED BY YOU FROM THE SERVICE OR CHECKERSPOT ENTITIES, EMPLOYEES, AGENTS OR REPRESENTATIVES OR ANY MATERIALS OR CONTENT ACCOMPANYING
THE PRODUCTS AND/OR AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE CHECKERSPOT ENTITIES, EMPLOYEES, AGENTS OR REPRESENTATIVES, THE PRODUCTS OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT
RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE PRODUCTS, THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE THE PRODUCTS AND ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND
THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING, WITHOUT LIMITATION, YOUR EQUPIMENT, COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT. YOU ACKNOWLEDGE THAT
YOU ARE NOT RELYING UPON CHECKERSPOT’S SKILL OR JUDGMENT TO SELECT OR FURNISH PRODUCTS OR GOODS SUITABLE FOR ANY PARTICULAR PURPOSE OR UPON ANY AFFIRMATIONS OF FACT OR PROMISES OF CHECKERSPOT WHICH EXTEND BEYOND THE LIMITED WARRANTY SET FORTH IN THE WNDR WARRANTY POLICY. ACCORDINGLY, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED FOR HEREIN, YOU AGREE AND ACKNOWLEDGE THAT YOU ARE ACCEPTING ALL PRODUCTS ON AN “AS-IS” AND “WITH ALL FAULTS” BASIS. YOU WARRANT THAT ANY ITEM PRODUCED USING THE PRODUCT OR ITEM RESULTING FROM SERVICES PROVIDED BY CHECKERSPOT AS AN INPUT IS NOT INTENDED FOR HUMAN CONSUMPTION.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. CHECKERSPOT DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT CHECKERSPOT IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
17. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE CHECKERSPOT ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES
(INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE PRODUCTS, THE SERVICE OR ANY MATERIALS OR CONTENT PROVIDED WITH THE PRODUCTS OR ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY CHECKERSPOT ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE CHECKERSPOT ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE PRODUCTS, SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE ACTUALLY PAID TO CHECKERSPOT FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; (B) THE AMOUNT YOU HAVE ACTUALLY PAID TO CHECKERSPOT FOR PURCHASE OF THE PRODUCT GIVING RISE TO CLAIM; OR (C) $300.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 17 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
18. Dispute Resolution and Arbitration
18.1 Generally. In the interest of resolving disputes between you and Checkerspot in the most expedient and cost effective manner, and except as described in Section 17.2, you and Checkerspot agree that every dispute arising in connection with these Terms will be resolved by confidential binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, 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 relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND CHECKERSPOT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
18.2 Exceptions. Despite the provisions of Section 18.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
18.3 Arbitrator. Any arbitration between you and Checkerspot will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. 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 Checkerspot. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
18.4 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Checkerspot’s address for Notice is: Checkerspot, Inc., 1250 Marina Village Parkway, Alameda, CA 94501, Attention: Head of Legal Affairs and Strategy. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) 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 of Arbitration is received, you or Checkerspot may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Checkerspot must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Checkerspot in settlement of the dispute prior to the award, Checkerspot will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
18.5 Fees. If you commence arbitration in accordance with these Terms, Checkerspot will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, 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 Alameda County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) 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 Checkerspot 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.
18.6 No Class Actions. YOU AND CHECKERSPOT 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. Further, unless both you and Checkerspot 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.
18.7 Modifications to this Arbitration Provision. If Checkerspot makes any future change to this arbitration provision, other than a change to Checkerspot’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Checkerspot’s address for Notice of Arbitration, in which case your account with Checkerspot will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
18.8 Enforceability. If Section 18.6 is found to be unenforceable or if the entirety of this Section 18 is found to be unenforceable, then the entirety of this Section 17 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 19.2 will govern any action arising out of or related to these Terms.
19.2 Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Checkerspot submit to the personal and exclusive jurisdiction of the state courts located in Alameda County, California and the federal courts located in the Northern District of California for resolution of any lawsuit or court proceeding permitted under these Terms. We are headquartered in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
19.3 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
19.5 Contact Information. The Service is offered by Checkerspot, Inc., located at 1250 Marina Village Parkway, Alameda, CA 94501. You may contact us by sending correspondence to that address or by emailing us at email@example.com.
19.6 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
19.7 No Support. We are under no obligation to provide support for the Products and/or Service. In instances where we may offer support, the support will be subject to published policies.
19.8 International Use; Exports. Unless otherwise specified on an applicable product page, the Products and Service are intended for visitors located within United States. We make no representation that the Products and/or Service are appropriate or available for purchase and/or use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited. Unless otherwise specified on an applicable Accepted Order, you shall be solely responsible for complying with any and all laws and/or regulations governing the exportation of any Products delivered hereunder from the United States and the importation of any such Products into the country of destination, including, without limitation, the payment of any taxes and/or duties thereof.