ARBITRTATION NOTICE. Except for certain kinds of disputes described in Section 8, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND SCALE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.
Your Use of the Portal. Subject to your compliance with these Terms, we grant you limited, non-exclusive, revocable permission to make personal use of the Portal and its content in furtherance of your role as an employee of your respective employer.
Training Materials and Marketing Materials. During the Term, Scale may provide Partner certain Training Materials and Marketing Materials. Partner may distribute such Training Materials and Marketing Materials to its End User Customers exactly in the form provided by Scale. Partner shall not reproduce the Training Materials or Marketing Materials for any other purpose without Scale’s prior written consent, or otherwise modify the Training Materials and Marketing Materials. All rights in Training Materials and Marketing Materials not expressly granted herein are reserved. ALL TRAINING MATERIALS AND MARKETING MATERIALS ARE PROVIDED, AS-IS, EXCLUDING ANY IMPLIED WARRANTIES, SUCH AS THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Restrictions. Partner shall not remove, alter, or cover any copyright notice, trademark, or other proprietary rights notice placed by or on behalf of Scale on the Training Materials, Marketing Materials, Products or any portion thereof.
Representations. Partner represents and warrants that it will (a) conduct business in a professional manner; (b) avoid deceptive, misleading, or unethical practices that are or might be detrimental to Scale or its Products; and (c) make no false or misleading representations with respect to Scale or the Products.
Limitation of Liability. IN NO EVENT WILL SCALE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS ARISING FROM OR RELATING TO THESE TERMS, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE AND WHETHER OR NOT SCALE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SCALE’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR IN CONNECTION WITH THESE TERMS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL IN NO EVENT EXCEED $500, EXCEPT AS SET FORTH IN SECTION 8.
Trademarks and Trade Names.
6.1. During the Term, Scale grants to Partner the right to use Scale’s trademarks, trade names, and logos (the “Scale Marks”) solely to promote Products to End User Customers. Notwithstanding the foregoing, Scale reserves the right to, upon notice to Partner, require that Partner, on a going-forward basis, obtain Scale’s prior written consent to any use of the Scale Marks for each instance of use. Nothing herein will grant to either party any right, title, or interest in the other party’s trademarks. At no time during or after the term of this Agreement will either party challenge or assist others in challenging the other party’s trademarks or the registration thereof.
6.2. All displays of Scale Marks that Partner intends to use will conform to reasonable guidelines provided from time to time by Scale. Partner will not use any of Scale’s Marks in conjunction with another trademark without Scale’s prior written approval.
6.3. Upon reasonable notice, Partner agrees to allow Scale to inspect all marketing and other materials which Partner produces, and which display any Scale Mark to ensure compliance with the terms of these Terms and any guidelines provided by Scale from time to time. Partner further agrees to make any reasonable modifications to such material that may be requested by Scale. Such reviews and modification requests shall not be construed to make Scale responsible for the contents of such materials, and Partner remains solely responsible for all such content.
6.4. Partner agrees to notify Scale of any use of the Scale Marks by End User Customers or others promptly as it comes to Partner’s attention.
6.5. At Scale’s request and expense, Partner shall perform any act reasonably necessary for Scale to secure or maintain any or all rights in the Scale Marks in any country where Partner is marketing the Products, including but not limited to providing any materials and executing all applications for trademark registrations, assignments, or other applicable documents.
6.6. Partner agrees not to register the Scale Marks or any trademark similar thereto in any country for any product or service without Scale’s prior written consent, and Partner agrees not to raise or cause to be raised any questions concerning or objections to the validity of the Scale Marks or to the respective rights of Scale. All goodwill resulting from Partner’s use of the Scale Marks shall inure to Scale.
7. Term and Termination.
7.1. The initial term shall be one (1) year from the date you enter into these Terms and shall automatically renew for successive one (1) year periods unless either party notifies the other in writing at least 30 days prior to expiration of the then-current term (“Term”). Either party may terminate this Agreement for any reason upon thirty (30) days prior written notice to the other party. Each party may terminate this Agreement for cause immediately upon notice in the event of the other party’s material breach of this Agreement. If you cease to be employed by the employer whose email address you signed up with, these Terms and your rights under these Terms automatically terminate and you must cease all use of the materials provided under these Terms.
7.2. Effective upon the termination or expiration of this Agreement, Reseller will promptly discontinue all marketing-related activities with respect to the Products and immediately cease use of all Scale Marks.
7.3. In the event of termination by either party in accordance with the provisions of this Agreement, neither party will be liable to the other because of such termination, for compensation, reimbursement, or damages on account of the loss of prospective profits or anticipated licenses or on account of expenditures, investments, leases, or commitments in connection with the business or goodwill of Scale or Reseller. Termination will not, however, relieve either party of obligations incurred prior to the termination.
7.4. We may make changes to these Terms from time to time by notifying you of such changes by any reasonable means. Your use of the Portal will constitute acceptance of such changes on a go-forward basis. If you do not agree to the updated terms then please notify us to terminate your account.
8.1. Generally. Except as described in Sections 8.2 and 8.3, you and Scale agree that every dispute arising in connection with these Terms, will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims 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. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND SCALE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
8.2. Exceptions. Although we are agreeing to arbitrate most disputes between us, 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.
8.3. Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 8 within 30 days after the date that you agree to these Terms by sending a letter to Scale, Attention: Legal Department – Arbitration Opt-Out, 525 S Meridian St., Indianapolis, IN 46225, United States, that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Scale receives your Opt-Out Notice, this Section 8 will be void and any action arising out of these Terms will be resolved as set forth in Section 9.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
8.4. Arbitrator. This arbitration agreement, and any arbitration between us, is subject the Federal Arbitration Act and will be 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 Scale.
8.5. Commencing Arbitration. Before initiating arbitration, a party 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”). Scale’s address for Notice is: Scale 525 S Meridian St., Indianapolis, IN 46225, United States. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) 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 Scale may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, Scale will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if Scale has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the AAA Rules. If the arbitrator finds that either the substance of the 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 and the other party may seek reimbursement for any fees paid to AAA.
8.6. Arbitration Proceedings. Any arbitration hearing will take place in the county and state of your billing address unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. During the arbitration, the amount of any settlement offer made by you or Scale must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. 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.
8.7. Arbitration Relief. Except as provided in Section 8.8, the arbitrator can award any relief that would be available if the claims had been brough in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by Scale before an arbitrator was selected, Scale will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator’s award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator's award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator's application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.
8.8. No Class Actions. YOU AND SCALE 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 Scale 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.
8.9. Modifications to this Arbitration Provision. If Scale makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to Scale’s address for Notice of Arbitration, in which case your account with Scale will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
8.10. Enforceability. If Section 8.8 or the entirety of this Section 8 is found to be unenforceable, or if Scale receives an Opt-Out Notice from you, then the entirety of this Section 8 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 9.2 will govern any action arising out of or related to these Terms.
9.1. Assignment; Binding Effect. Except as otherwise expressly provided in these Terms, neither party may assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of the other party; provided, however, that Scale may assign these Terms, in whole or in part, to any entity that, directly or indirectly, owns or controls, is owned or controlled by or is under common control with Scale or pursuant to merger, sale of assets, sale of stock or similar transaction. Any attempted assignment or delegation without the required consent shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties, their respective heirs, legal representatives, beneficiaries, successors, and permitted assigns.
9.2. Governing Law and Venue. These Terms are governed by the laws of the State of Indiana without regard to conflict of law principles. You and Scale submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Marion County, Indiana for resolution of any lawsuit or court proceeding permitted under these Terms.
9.4. Further Acts. Each party to this Agreement agrees to perform such further acts and execute and deliver such further agreements or instruments as the other party may reasonably request, to consummate, evidence or confirm the agreements contained in this Agreement.
Severability. If any provision of this Agreement is unenforceable such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.