CoachSpan Terms of Service
Background and Contact Information
CoachSpan is a service (“Service”) provided by Alpha Youth Sports, Inc (“AYS”). Alpha Youth Sports, Inc, is a U.S. business headquartered at 1661 Worcester Rd, Suite 104, Framingham MA, 01701, USA. You may contact AYS regarding the Terms of Service (defined below) by emailing email@example.com.
The following terms and conditions (“Terms of Service” or these “Terms”) are a legal agreement (“Agreement”) between you and Alpha Youth Sports, Inc. (“AYS”), and are applicable to all AYS digital operations at or through our websites, our CoachSpan Service, our mobile/tablet sites, our social media presence, and our applications (individually a “Site” and collectively, the “Sites“). The Sites are the property of AYS, and AYS provides these Sites subject to the conditions defined herein. Visitors to our Sites are sometimes referred to in these Terms as “you” or “your” and you and we together are sometimes referred to as the “parties”. This Agreement is governed by the laws of the Commonwealth of Massachusetts.
PLEASE READ THESE TERMS CAREFULLY BEFORE USING A SITE. YOUR ACCESS AND/OR USE OF A SITE CONFIRMS YOUR UNCONDITIONAL ACCEPTANCE OF THE FOLLOWING TERMS. IF YOU DO NOT FULLY ACCEPT THESE TERMS, DO NOT USE OR ACCESS A SITE.
By agreeing to the Terms of Service you agree to be bound by these Terms and any of the related policies or guidelines, including any subsequent changes or modifications to them, and that you have the authority to enter into these Terms personally or on behalf of the third party you have named as the user. The term “you” refers to the individual, coach, administrator, youth organization, or legal entity identified as the user of a Site.
Notice Regarding Dispute Resolution: These Terms contain provisions that govern how claims you and AYS have against each other relating to the Sites are resolved (see Section 19 on “Arbitration” below), including an obligation to arbitrate disputes, which will, subject to limited exceptions, require you to submit claims you have against AYS to binding arbitration.
- Effective Date/Revisions to these Terms. These Terms are effective as of the date set forth above. AYS may revise these Terms at any time and from time to time. AYS will notify you of changes to these Terms by posting the amended Terms on the Sites at least thirty (30) days before the effective date of the changes. If you do not agree to any revisions to these Terms, you should stop using the Sites, and if you are a registered user, you may cancel your account with AYS within the thirty (30) day period by emailing AYS at firstname.lastname@example.org and you will not be bound by the new terms. Otherwise, the new terms will take effect thirty (30) days after our posting of the change.
- Additional Terms. Certain provisions of these Terms may be superseded by expressly designated legal notices, rules or other terms located on particular pages of a Site (the “Additional Terms”), including the terms of any mobile application(s) we provide. Your use of such pages, or download or use of any of our mobile applications, registration for a CoachSpan account for access to a national, state or local sports governing body, league, program, club, team, or other organization (each, an “Organization”) confirms your unconditional acceptance of the Additional Terms. If these Terms conflict with such Additional Terms, such Additional Terms shall govern and apply to your use of that portion of a Site; however, the arbitration provisions in Section 19 of these Terms shall apply to the Additional Terms. Use of our mobile applications are also subject to the terms of the separate license agreements for such Sites as found on such Sites and may be subject to separate terms entered into by the applicable Organization, which are in addition to these Terms.
- Use of the Sites and License. The Sites are general purpose sites and are not targeted towards children under the age of thirteen (13). By accessing or using the Sites, including by registering an account on a Site, you represent and warrant that you are eighteen (18) years of age or older (or age of majority if that is more than 18 in your place of residence). If you are under the age of eighteen (18) (or age of majority if that is more than 18 in your place of residence), you should use the Sites only with the involvement of a parent or guardian. Subject to your compliance with these Terms, AYS grants you a personal, non-exclusive, non-transferrable, limited privilege to access and use the Sites solely for your personal, non-commercial use. This privilege does not include any resale or commercial use of the Sites. AYS may revoke your access and use of a Site at any time (including if you violate these Terms), and nothing herein constitutes a representation that the Sites will be available to you for your access or use.
- Restrictions on Use of the Sites. You agree that you will access and use the Sites only in a lawful manner and only in accordance with these Terms. Additionally, you agree that you will not:
(a) Gain access, or attempt to gain access, to any portion of a Site, or any systems or networks connected to a Site, by hacking, password mining or any other illegitimate or unlawful means;
(b) Create or maintain any link from another website to any page on a Site without AYS’ prior written permission;
(c) Run or display a Site (or any material on a Site) in frames or through similar means on another site, application or location, without AYS’ prior written permission;
(d) Modify the information or materials located on a Site in any way or reproduce or publicly display, perform, or distribute or otherwise use any such materials for any public, non-personal or commercial purpose;
(e) Use any deep-link, page-scrape, robot, spider, website search application or other automatic device, program or methodology, or any similar or equivalent manual process, to access, copy, retrieve, monitor, mirror, reproduce or index a Site, or any portion of a Site;
(f) Collect any data or information regarding users and/or devices, including usernames, personal information, preferences, email addresses or accounts;
(g) Create or transmit unsolicited electronic communications, such as spam, use any device, software or routine to interfere or attempt to interfere with the proper working of a Site, or otherwise interfere with users’ enjoyment of a Site;
(h) Transmit or upload to a Site any item containing or embodying any virus, worm, defect, trojan horse, software bomb or other harmful or malicious code or feature that does or could interfere with, damage or degrade in any manner the performance or security of a Site or adversely affect a user;
(i) Take any action that imposes, in our sole discretion, an unreasonable or disproportionately large load on a Site or the IT infrastructure used to operate a Site;
(j) Submit or post to a Site any content that is unlawful or facilitates, constitutes, promotes or encourages illegal activity or otherwise use a Site to transfer, communicate or store illegal material;
(k) Scan or test the vulnerability of a Site or any network connected to a Site;
(l) Access or use a Site or any User Content (as defined below) in any manner which would violate any applicable local, state, federal or international law (including any laws regarding the export of data or software to and from the United States or other countries); or
(m) Attack a Site via a denial-of-service attack or a distributed denial-of-service attack or similar means.
- Account. You may be required to create an account to access or use certain areas of a Site or you may elect to create an account. If you choose to create an account, you are responsible for maintaining the confidentiality of your account (including your username and password information), and also for restricting access to such information, your account and your device. You agree to accept responsibility for all activities that occur under your account or password. Additionally, you agree to notify AYS immediately of any unauthorized access or use of your account or password, or any other breach of security.
AYS reserves the right, including if AYS becomes aware that you are under the age of eighteen (18) (or age of majority if that is more than 18 in your place of residence), to terminate your account or registration, at any time. AYS does not sell products or services to children and does not permit children to have accounts. AYS sells products and services to adults, who can purchase items with a credit card or other payment method. If you are under the age of eighteen (18) (or age of majority if that is more than 18 in your place of residence), you may not have an account and you may use the Sites only with the involvement of a parent or guardian.
Should AYS determine that your account information may be compromised due to your personal device being infected with a virus, malware, other malicious code, or due to other theft of your account information, AYS reserves the right to invalidate, delete, or otherwise modify your account in order to protect your account, the accounts of other account holders, and AYS systems from further damage or exposure. This may include proactively changing your password. Should this need arise, AYS will make reasonable efforts to inform you of any modifications made, via the email address listed for your account.
- Applicable Law. By registering for an account you represent that the services ordered will be used only in a lawful manner and as intended by AYS. The Sites are not intended to subject AYS to the laws or jurisdiction of any state, country or territory other than that of the United States, and AYS does not represent or warrant that the Sites or any part thereof is appropriate or available for use in any jurisdiction besides the United States. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and/or sale of any product or service purchased via a Site.
- Intellectual Property. All text, graphics, information, images, content, video, data, music, code, software, trademarks, trade names, service marks, logos, fonts, custom colors, and other material displayed on, available via, or that can be downloaded from a Site, excluding User Content (collectively, the “AYS IP”), are either the property of, or used with permission of, AYS or our service providers and licensors, and are protected by copyright, trade dress, trademark and other laws. Additionally, the design, arrangement, and collection of the AYS IP on the Sites, including the look and feel of the Sites (the “Look and Feel”), is the exclusive property of AYS and protected by applicable copyright laws. AYS expressly reserve all intellectual property rights in all AYS IP and the Look and Feel. Nothing contained on the Sites grants or should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any AYS IP or the Look and Feel without the express written permission of AYS or such third party owner.
- User Content Posted by You. As a user of a Site, you or the Organization may provide and/or post content, including but not limited to eligibility, roster, scheduling, performance and/or scoring information (collectively, “User Content”) and/or share it with other users. Subject to any licenses and rights expressly granted herein, any User Content posted by you, is owned by you.
User Content is and will be considered non-confidential and non-proprietary. AYS may, but is not obligated to, monitor or review any User Content. AYS assumes no responsibility for any User Content, whether or not arising under the laws of copyright, libel, privacy, obscenity, or otherwise. AYS shall have no obligations to use, return, review, remove, or respond to any User Content (unless required by law). AYS retains the right to remove any or all User Content for any or for no reason, including User Content that, in our sole discretion, violates these Terms and we reserve the right to terminate your access.
Without limiting the foregoing, AYS has the right to fully cooperate with any law enforcement authorities or court order requesting or directing AYS to disclose the identity or other information of users and/or devices using or accessing the Sites. AYS is not responsible for claims resulting from our cooperation with law enforcement or court orders, however the foregoing does not waive our liability, if any, for (i) claims for personal injury or death caused by our negligent acts or (ii) damages arising from our intentional, willful or reckless misconduct.
You are solely responsible for any User Content you post, publish or display on a Site or transmit to others. You will post only User Content you believe in good faith to be true and accurate, and you will not post to a Site any User Content that is false, inaccurate, misleading or fraudulent. You are prohibited from posting or transmitting any content that:
(a) Is deceptive, misleading, fraudulent, unlawful, threatening, defamatory, libelous, obscene, pornographic or profane;
(b) Promotes illegal activity, encourages conduct that would be considered a criminal offense or give rise to civil liability, or otherwise violates any law;
(c) Violates the rights of a third party;
(d) Is offensive to users of the Site, such as content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; or
(e) Harasses or advocates harassment of another person or entity.
By uploading User Content to a Site, you hereby grant, and represent and warrant that you have all rights and authority necessary to grant:
(i) AYS and our service providers an irrevocable, perpetual, non-exclusive, royalty-free, fully sub-licensable, fully paid-up, worldwide license and right to use, copy, revise, publicly perform, digitally perform, publicly display and distribute such User Content, and to prepare derivative works based on, or incorporate into other works, such User Content with or without attribution; and
(ii) All users of the Sites an irrevocable, perpetual, non-exclusive, royalty-free license and right to use such User Content for each such user’s personal, non-commercial use, subject to the restrictions set forth in these Terms.
You understand and acknowledge that AYS may: (a) be working on the same or similar idea to any ideas, expression of ideas or other materials you submit within your User Content (each, an “Idea”); (b) already know of such Idea from other sources; and/or (c) wish to develop such Idea or a similar idea on our own.
- User Content Posted by Others. The Organization may provide and/or post information (including but not limited to eligibility, roster, scheduling, performance and/or scoring information) and you consent to such posting. In addition, other third parties may post information on our Sites. You acknowledge and agree that AYS has limited control over the User Content posted to the Sites, or any links to other sites, including the content of any messages or posts and manner of posting, and that AYS does not guarantee the accuracy, integrity or quality of User Content. All User Content, including advice and opinions posted by users, comprises the views and responsibilities of those who post such User Content and does not necessarily represent our views. AYS is not obligated to review or remove User Content and you understand that, by using a Site, you may be exposed to User Content that is offensive, indecent, or objectionable.
- Third Party Links. From time to time, a Site may contain links to and/or functionality interacting with third party sites that are not owned, operated or controlled by AYS. All such links and/or functionality are provided solely as a convenience and do not constitute an endorsement by AYS. If you use these links, you will leave the Site. AYS is not responsible for any content, materials or other information located on or accessible from any other site. AYS does not endorse, guarantee, or make any representations or warranties regarding any other site; any content, materials or other information located or accessible from such sites; or any results that you may obtain from using such sites. AYS also does not guarantee that links and/or functionality provided by third parties will be available or error-free, uninterrupted, free from viruses and/or unauthorized access, or otherwise meet your requirements.
IF YOU DECIDE TO ACCESS ANY OTHER SITE LINKED TO OR FROM THE SITES, YOU DO SO ENTIRELY AT YOUR OWN RISK.
- Conduct Policy
Please read this Conduct Policy carefully. It governs your conduct while using the Service.
Any violation of this policy may result in the suspension or termination of your access to the Service and such action as AYS deems appropriate. Indirect or attempted violations of this policy, and actual or attempted violations by a third party on your behalf, shall be considered violations of the policy by you.
The following non-exhaustive list describes the kinds of illegal or harmful conduct that are prohibited on the Service.
- You agree not to upload, post or otherwise transmit any data that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, known to be false and presented as truth, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable.
- You agree not to upload, post or otherwise transmit any data that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as, but not limited to, inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure Codes).
- You agree not to upload, post or otherwise transmit any data that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. You agree not to upload, post or otherwise transmit any data that potentially infringes any patent, trademark, trade secret, copyright or other proprietary rights of any person or entity.
- You agree not to upload, post or otherwise transmit any data that is unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation.
- You agree not to use an account name, file or directory name, or third level domain (i.e., aaa.coachspan.com), or other identifier that infringes or misappropriates any trademark, service mark or other indicia of origin or that is otherwise likely to cause confusion as to the source, affiliation, sponsorship or endorsement of a third party’s products or services.
- You agree not to attempt to disguise the origin of any User Content transmitted to the Service.
- You agree not to act in any manner that negatively affects other users’ ability to use the Service.
- You agree not to impersonate any person or entity, including, without limitation, a manufacturer or owner of any product, or falsely state or otherwise misrepresent your affiliation with a person or entity.
- You agree not to interfere with the Service, or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service.
- You agree not to post content that would be harmful to minors in any manner.
- You agree not to intentionally create and/or log in with multiple accounts.
System and Network Security
You are prohibited from violating the security of any system or network comprising the Service. Such violations may result in criminal and civil liability. Examples of system or network security violations include, without limitation, the following:
- Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of the Service or to breach security or authentication measures.
- Unauthorized monitoring of data or traffic on the Service.
- Interference with the Service including, without limitation, any type of flooding technique or deliberate attempt to overload a system such as denial of service attacks.
- Forging of any packet header, e-mail header or any part of a message header. This prohibition does not include the use of aliases or anonymous remailers.
- Using manual or electronic means to avoid any use or access limitations placed on this Service.
If you want to report any violations of this Conduct Policy, please contact AYS at email@example.com.
- Disclaimers. AYS does not and cannot warrant that any Site (including any element of a Site) or its servers will be error-free, uninterrupted, free from viruses and/or unauthorized access, or otherwise meet your requirements.
YOUR USE OF A SITE (INCLUDING ANY ELEMENT OF A SITE) AND OF ANY USER CONTENT, IS AT YOUR OWN RISK. THE INFORMATION, MATERIALS, PRODUCTS AND SERVICES PROVIDED ON OR IN CONNECTION WITH THE SITES ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. NEITHER AYS, NOR ANY OF ITS AFFILIATES, SERVICE PROVIDERS OR SUPPLIERS, WARRANT THE ACCURACY OR COMPLETENESS OF THE INFORMATION, MATERIALS, PRODUCTS OR SERVICES PROVIDED ON OR THROUGH THE SITES. THE INFORMATION, MATERIALS, PRODUCTS AND SERVICES PROVIDED ON OR THROUGH THE SITES MAY BE OUT-OF-DATE, AND NEITHER AYS NOR ANY OF ITS AFFILIATES, SERVICE PROVIDERS OR SUPPLIERS MAKE ANY COMMITMENT OR ASSUME ANY DUTY TO UPDATE SUCH INFORMATION, MATERIALS OR SERVICES. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, AYS HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES WITH RESPECT TO THE PRODUCTS AND SERVICES LISTED OR PURCHASED ON OR THROUGH THE SITES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AYS HEREBY EXPRESSLY DISCLAIMS ALL LIABILITY FOR PRODUCT OR SERVICE DEFECTS OR FAILURES, CLAIMS THAT ARE DUE TO PRODUCT OR SERVICE MISUSE, ABUSE, PRODUCT OR SERVICE MODIFICATION, NON-COMPLIANCE WITH ANY CODES, OR MISAPPROPRIATION (INCLUDING UNAUTHORIZED ACCESS OR MISAPPROPRIATION OF YOUR PERSONAL INFORMATION). AYS MAKES NO WARRANTIES TO THOSE DEFINED AS “CONSUMERS” IN THE MAGNUSON-MOSS WARRANTY-FEDERAL TRADE COMMISSION IMPROVEMENTS ACT.
THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
AYS is not responsible for typographical errors or omissions relating to pricing, text or photography. AYS cannot and does not represent or warrant that the site or its server(s) are free of viruses or other harmful components, including content that is posted by third parties. You should use industry-recognized software to detect and disinfect viruses from any download.
- Limitations of Liability. AYS does not assume any responsibility, and shall not be liable for any damages to, or viruses or other harmful or malicious code that may infect or affect, your computer, device, telecommunication equipment, or other property caused by or arising from your access to, use of, or browsing of a Site, linking to a third party site, or your downloading of any materials or information from a Site and will not be liable for any loss or damage arising from the unlawful, malicious, negligent or wrongful conduct of third parties.
IN NO EVENT WILL AYS OR ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, SUCCESSORS, ASSIGNS, PARTNERS, VENDORS NOR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION OR TRANSMISSION OF THE SITES (OR ANY PART OF THE SITES) BE LIABLE TO ANY PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, ACCESS, OR THE RESULTS OF USE OF A SITE, ANY SITES LINKED TO A SITE, OR THE INFORMATION OR MATERIALS CONTAINED IN ANY OR ALL SUCH SITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING OUR NEGLIGENCE) OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN THE EVENT OF ANY PROBLEM WITH THE SITES, OR ANY MATERIAL OR CONTENT ON THE SITES, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THE SITES. AYS’ AGGREGATE LIABILITY FOR ANY ACTUAL AND DIRECT DAMAGES HEREUNDER SHALL NOT EXCEED THE AMOUNTS YOU PAID TO AYS DURING THE PRIOR 12 MONTH PERIOD. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN YOU AND AYS.
You acknowledge that the above limitation of liability is a reasonable allocation of risk for your use of the Service and is a fundamental element of the basis of the agreement between you and AYS. AYS would not be able to provide the Service on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of AYS’s suppliers as well. Some jurisdictions do not allow the limitation or exclusion of certain warranties, conditions, or damages, so some of the above exclusions may not apply to you.
- Indemnity. You agree to defend, indemnify and hold AYS and its respective affiliates, licensors, directors, officers, employees, agents and representatives, harmless from and against any losses, costs, expenses or damages of any nature whatsoever, including attorneys’ fees and court costs, arising from any claim, cause of action, suit or demand of any third party due to, arising out of or relating to your breach of these Terms.
- Copyrights. If you believe any User Content or any other aspect of a Site infringes your copyright, you should send written notice of the alleged copyright infringement to our designated copyright agent at this address:
Alpha Youth Sports, Inc.
1661 Worcester Rd, Suite 104
Framingham MA, 01701
or by email at firstname.lastname@example.org
Such notice must meet the requirements of the Digital Millennium Copyright Act by providing the following information:
(a) A description of the copyrighted work that you claim has been infringed;
(b) A description of where the allegedly infringing material is located on the Site(s);
(c) Your name, address, telephone number and email address;
(d) A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
(e) A statement by you, made under penalty of perjury, affirming that the above information in your notice is accurate, and that you are the owner of the copyright at issue or are authorized to act on the copyright owner’s behalf; and
(f) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright at issue.
- Counter-Notice. If you believe that your User Content was removed or disabled but is not infringing; or that you have the authorization from the copyright owner, the copyright owner’s agent or pursuant to the law, to post and use the content in your User Content; you may send a counter-notice to the Copyright Agent containing the following information:
(a) Your physical or electronic signature;
(b) Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
(c) A statement that you have a good faith belief that the content was removed or disabled as a result of a mistake or a misidentification of the content; and
(d) Your name, address, telephone number and email address;
(e) A statement that you consent to the jurisdiction of the federal court in Boston, MA, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received, AYS may send a copy of the counter-notice to the original complaining party informing that party that it may replace the removed content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at AYS’ sole discretion.
- Disputes, Choice of Law, and Jurisdiction.
(a) Initial Dispute Resolution. AYS is available by email at email@example.com to address any concerns you may have regarding your use of the Sites. Most concerns may be quickly resolved in this manner. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations, which shall be a precondition to either party initiating a lawsuit or arbitration. Any matter and/or dispute relating in any way to your visit to or interaction with a Site, including compliance with these Terms, which is not so resolved shall be submitted to binding confidential arbitration as provided in Section 19 (herein).
(b) Choice of Law and Courts for Non-Arbitrated Disputes. Unless expressly addressed in the Additional Terms, these Terms supersede any other agreement between you and AYS to the extent necessary to resolve any inconsistency or ambiguity between them. The Sites are administered by AYS from its offices in Massachusetts. Notwithstanding the arbitration provisions in Section 19, to the extent you have in any manner violated or threatened to violate our intellectual property rights, AYS may seek injunctive or other appropriate relief in the state courts of the Commonwealth of Massachusetts or the United States District Court for the District of Massachusetts, and you consent to exclusive personal jurisdiction and venue in such courts.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR THE SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
(a) If the parties don’t reach an agreed upon solution pursuant to the dispute-resolution contemplated in Section 18 (a) of these Terms, you and AYS each agree that any dispute, claim or controversy arising out of or relating to our products or services or the Sites (including, without limitation, AYS digital operations at or through our websites, our mobile/tablet sites, our social media presence, our applications, or these Terms or the breach, enforcement, interpretation or validity thereof, shall be determined by binding arbitration before one arbitrator (“Arbitration Agreement”). The arbitration shall be administered by JAMS pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. By agreeing to arbitration, the parties understand and agree that they are waiving their rights to maintain other available resolution processes, such as a court action or administrative proceeding, to settle their disputes. AYS strives to offer a fundamentally fair arbitration hearing process. For small claims (i.e., up to $10,000), in addition to your right to bring small claims court actions as noted below, AYS believe this can often be satisfied when hearings are conducted via electronic or telephonic means or by a submission of documents in lieu of a personal appearance by the parties. However, the arbitrator shall have discretionary authority to require a face-to-face meeting, if it determines that such face to face meeting is necessary for a fundamentally fair hearing. Notwithstanding AYS right to modify these Terms, AYS agrees that AYS may not modify these arbitration provisions without notice to you and your agreement to such changes. Further, any such modification to the dispute and/or arbitration requirements in Section 18 or to this Section 19 shall not apply to claims arising prior to the date of such modification and any such changes shall not affect your prior election to opt out of arbitration as provided below. In connection with these arbitration provisions, the parties agree as follows:
- This arbitration agreement is reciprocally binding on all parties such that both you and AYS are required to arbitrate claims;
- Remedies that would otherwise be available to the parties under applicable federal, state or local laws, including the recovery of attorney’s fees, remain available under this arbitration clause;
- The arbitrator must be neutral, and the parties will each have a reasonable opportunity to participate in the process of choosing the arbitrator;
- You have the right to the use of counsel of your choosing at your own expense if you so elect, and to recover attorneys’ fees and expenses of arbitration to the extent provided by law;
- The parties are permitted the discovery or exchange of non-privileged information relevant to the dispute in accordance with JAMS procedures; and
- The arbitrator’s award will consist of a written statement stating the disposition of each claim. The award will also provide a concise written statement of the essential findings and conclusions on which the award is based.
(b) Arbitration Fees. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the alternative dispute resolution provider.
(c) Waiver of Certain Rights from Court. The parties understand that, absent this mandatory provision, they would have the right to sue in court. Court proceedings generally provide greater discovery rights, a judge or jury trial, and could provide greater opportunity for appellate review. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation.
(d) Class Action Waiver. THE PARTIES FURTHER AGREE THAT ANY ARBITRATION SHALL BE CONDUCTED IN THEIR INDIVIDUAL CAPACITIES ONLY AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION, AND THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS.
(e) Exception – Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction. Any appeal of the decision in such small claims court shall be subject to these arbitration provisions.
(f) YOU AGREE THAT BY ENTERING INTO THESE TERMS, IN PARTICULAR THE AGREEMENT TO ARBITRATE, YOU ARE WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT YOU MAY BRING CLAIMS AGAINST AYS ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION OR OTHER ACTION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. YOU ACKNOWLEDGE THAT BY ENTERING INTO THESE TERMS, YOU INTEND TO BE LEGALLY BOUND AND, IN ADDITION TO OTHER GOOD AND VALUABLE CONSIDERATION, YOU AGREE THAT AYS’ AGREEMENT TO ARBITRATE CLAIMS CONSTITUTES CONSIDERATION FOR SUCH WAIVER. THE CLASS ACTION WAIVER IS AN ESSENTIAL ELEMENT OF THIS AGREEMENT TO ARBITRATE AND CAN NOT BE SEVERED FROM THIS AGREEMENT TO ARBITRATE DISPUTES.
(g) All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The Parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(h) If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable with regards to any particular subject matter by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect with regard to such specific subject matter and shall be severed, and the remainder of the Agreement shall continue in full force and effect.
(i) Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
(j) This Arbitration Agreement will survive the termination of your relationship with AYS.
(k) Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
(l) Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secrets shall not be subject to this Arbitration Agreement.
(m) In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Middlesex County, Massachusetts for such purpose.
- Admissibility. A printed version of these Terms shall be admissible in judicial and administrative proceedings and in arbitration proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
- Waiver and Severability. No waiver by either party of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of a party to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.
- Termination. You or AYS may suspend or terminate your account or your use/access of a Site at any time, for any reason or for no reason. You are personally liable for any activity prior to such termination, including any orders that you place or charges that you incur prior to termination. AYS reserves the right to change, suspend, or discontinue all or any aspect of the Sites at any time without notice except as provided in these Terms.