Terms of Service
Last Updated Date: August 1, 2023
WELCOME! PLEASE READ THIS TERMS OF SERVICE AGREEMENT (THE “TERMS OF SERVICE”) CAREFULLY.
THIS WEBSITE AND ANY OTHER WEBSITES WHICH CONTAIN THESE TERMS OF SERVICE (COLLECTIVELY,
THE “WEBSITE”), AND THE INFORMATION CONTAINED ON IT, ARE CONTROLLED BY TAILD SPORTS, INC.
DBA CHALKBOARD, ITS AFFILIATES OR AGENTS (“CHALKBOARD,” “CHALKBOARD,” “WE,” “US,” OR
“OUR”). THESE TERMS OF SERVICE GOVERN THE USE OF THE WEBSITE AND APPLY TO ALL USERS VISITING
THE WEBSITE OR ACCESSING THE SERVICES OR THE APPLICATION IN ANY WAY (EACH A “USER”). BY
ACCESSING OR USING THE WEBSITE IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES
AVAILABLE OR ENABLED VIA THE WEBSITE, INCLUDING USE OF THE APPLICATION (DEFINED HEREIN)
(EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”), COMPLETING THE REGISTRATION PROCESS,
AND/OR BROWSING THE WEBSITE OR DOWNLOADING CHALKBOARD’S MOBILE APPLICATION (THE
“APPLICATION”), YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND
BY THE TERMS OF SERVICE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH
CHALKBOARD, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF SERVICE PERSONALLY
OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE TERMS
OF SERVICE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED
AS THE USER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THE
TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE THIS WEBSITE, APPLICATION, OR THE SERVICES.
PLEASE BE AWARE THAT SECTION 17 OF THE AGREEMENT BELOW CONTAINS PROVISIONS
GOVERNING HOW DISPUTES THAT YOU AND CHALKBOARD HAVE AGAINST EACH OTHER WILL BE
RESOLVED, INCLUDING WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR
TO THE “LAST UPDATED DATE” AT THE TOP OF THESE TERMS. SECTION 17 CONTAINS, AMONG OTHER
THINGS, AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL
DISPUTES BETWEEN YOU AND CHALKBOARD BE RESOLVED BY BINDING AND FINAL ARBITRATION.
UNLESS YOU OPT OUT OF THE AGREEMENT IN ACCORDANCE WITH THESE TERMS: (1) YOU AND
CHALKBOARD WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST
THE OTHER PARTY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR
REPRESENTATIVE ACTION OR PROCEEDING AND EACH OF US WAIVES OUR RIGHT TO PARTICIPATE IN A
CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) EACH OF US IS WAIVING OUR RIGHT
TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
PLEASE BE AWARE THAT SECTION 2.6 (CHALKBOARD COMMUNICATIONS) OF THIS AGREEMENT,
BELOW, CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA
E-MAIL, TEXT MESSAGE, CALLS AND PUSH NOTIFICATION.
Your use of, and participation in, certain Services may be subject to additional terms
(“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Service or will
be presented to you for your acceptance when you sign up to use the supplemental Service. For example,
we may offer additional products or promotions that are subject to Supplemental Terms. If the Terms of
Service are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect
to such Service. The Terms of Service and any applicable Supplemental Terms are referred to herein as
- CHANGES TO THESE TERMS OF SERVICE. PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO
CHANGE BY CHALKBOARD IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Chalkboard
will make a new copy of the Agreement available at the Website and within the Application and any new
Supplemental Terms will be made available from within, or through, the affected Service on the Website
or within the Application. We will also update the “Last Updated” date at the top of the Agreement. If
we make any material changes, and you have registered with us to create an Account (as defined in
Section 3.1 (Registering Your Account) below) we will also send an e-mail to you at the last e-mail address
you provided to us pursuant to the Agreement. Any changes to the Agreement will be effective
immediately for new users of the Website, the Application and/ or Services and will be effective thirty
(30) days after posting notice of such changes on the Website for existing Registered Users, provided that
any material changes shall be effective for Registered Users who have an Account with us upon the earlier
of thirty (30) days after posting notice of such changes on the Website or thirty (30) days after dispatch
of an e-mail notice of such changes to Registered Users (defined in Section 3.1 (Registering Your Account)
below). Chalkboard may require you to provide consent to the updated Agreement in a specified manner
before further use of the Website, the Application and/ or the Services is permitted. If you do not agree
to any change(s) after receiving a notice of such change(s), you shall stop using the Website, the
Application and/or the Services. Otherwise, your continued use of the Website, the Application and/or
Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW
THE THEN-CURRENT TERMS.
- USE OF THE SERVICES AND CHALKBOARD PROPERTIES.
2.1 The Services. Chalkboard is a fantasy sports social messaging platform. We may make
available certain other Services from time to time, which shall be subject to the Terms of Service and may
be subject to Supplemental Terms. Any fantasy sports related game play, or any other games offered on
the Chalkboard Properties (defined herein) shall be set forth in Chalkboard’s online Supplemental Terms.
2.2 Chalkboard Properties. The Application, the Website, the Services, and the information
and content available on the Website and in the Application and the Services (as these terms are defined
herein) (each, a “Chalkboard Property” and collectively, the “Chalkboard Properties”) are protected by
copyright laws throughout the world. Subject to the Agreement, Chalkboard grants you a limited license
to reproduce portions of Chalkboard Properties for the sole purpose of using the Services for your
personal or internal business purposes. Unless otherwise specified by Chalkboard in a separate license,
your right to use any and all Chalkboard Properties is subject to the Agreement.
2.3 Application License. Subject to your compliance with the Agreement, Chalkboard grants
you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install
and use a copy of the Application on a single mobile device or computer that you own or control and to
run such copy of the Application solely for your own personal or internal business purposes. Furthermore,
with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store
Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded
product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage
Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section,
with respect to any Application accessed through or downloaded from the Google Play store (a “Google
Play Sourced Application”), you may have additional license rights with respect to use of the Application
on a shared basis within your designated family group.
2.4 Updates. You understand that Chalkboard Properties are evolving. As a result,
Chalkboard may require you to accept updates to Chalkboard Properties that you have installed on your
mobile device. You acknowledge and agree that Chalkboard may update Chalkboard Properties with or
without notifying you. You may need to update third-party software from time to time in order to use
2.5 Certain Restrictions. The rights granted to you in the Agreement are subject to the
following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host
or otherwise commercially exploit Chalkboard Properties or any portion of Chalkboard Properties,
including the Website; (b) you shall not frame or utilize framing techniques to enclose any trademark,
logo, or other Chalkboard Properties (including images, text, page layout or form) of Chalkboard; (c) you
shall not use any metatags or other “hidden text” using Chalkboard’s name or trademarks; (d) you shall
not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile
or reverse engineer any part of Chalkboard Properties except to the extent the foregoing restrictions are
expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices
or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining
tools or the like) to “scrape” or download data from any web pages contained in the Website (except that
we grant the operators of public search engines revocable permission to use spiders to copy materials
from the Website for the sole purpose of and solely to the extent necessary for creating publicly available
searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly
stated herein, no part of Chalkboard Properties may be copied, reproduced, distributed, republished,
downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove
or destroy any copyright notices or other proprietary markings contained on or in Chalkboard Properties.
Any future release, update or other addition to Chalkboard Properties shall be subject to the Agreement.
Chalkboard, its suppliers and service providers reserve all rights not granted in the Agreement. Any
unauthorized use of any Chalkboard Property terminates the licenses granted by Chalkboard pursuant to
2.6 Chalkboard Communications. By entering into this Agreement or using the Chalkboard
Properties, you agree to receive communications from us, including via e-mail, text message, and push
notifications. You agree that texts messages may be generated by automatic telephone dialing systems.
Communications from us and our affiliated companies may include but are not limited to: operational
communications concerning your Account or the use of the Chalkboard Properties, updates concerning
new and existing features on the Chalkboard Properties, email communications concerning promotions
run by us or our third-party partners, and news concerning Chalkboard and industry developments.
Standard text messaging charges applied by your cell phone carrier will apply to text messages that we
send. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR
PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL
ITSELF. IF YOU WISH TO OPT OUT OF ALL TEXTS OR CALLS FROM US (INCLUDING OPERATIONAL OR
TRANSACTIONAL TEXTS OR CALLS), YOU CAN OPT OUT BY: EMAIL LEGAL@CHALKBOARD.IO TO PROVIDE
NOTICE. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT YOUR
USE OF THE CHALKBOARD PROPERTIES OR RELATED SERVICES.
3.1 Registering Your Account. In order to access certain features of Chalkboard Properties
you may be required to become a Registered User. For purposes of the Agreement, a “Registered User”
is a User who has registered an account on the Website (“Account”), has a valid account on the third-
party service (“Third-Party Service”) through which the User has connected to the Website (each such
account, a “Third-Party Account”), or has an account with the provider of the Application for the User’s
3.2 Access Through a Third-Party Service. If you access the Chalkboard Properties through a
Third-Party Service as part of the functionality of the Website, the Application and/or the Services, you
may link your Account with Third-Party Accounts, by allowing Chalkboard to access your Third-Party
Account, as is permitted under the applicable terms and conditions that govern your use of each ThirdParty Account. You represent that you are entitled to disclose your Third-Party Account login information
to Chalkboard and/or grant Chalkboard access to your Third-Party Account (including, but not limited to,
for use for the purposes described herein) without breach by you of any of the terms and conditions that
govern your use of the applicable Third-Party Account and without obligating Chalkboard to pay any fees
or making Chalkboard subject to any usage limitations imposed by such third-party service providers. By
granting Chalkboard access to any Third-Party Accounts, you understand that Chalkboard may access,
make available and store (if applicable) any information, data, text, software, music, sound, photographs,
graphics, video, messages, tags and/or other materials accessible through Chalkboard Properties
(collectively, “Content”) that you have provided to and stored in your Third-Party Account (“Third-Party
Account Content”) so that it is available on and through Chalkboard Properties via your Account. Unless
otherwise specified in the Agreement, all Third-Party Account Content shall be considered to be Your
Content (as defined in Section 3.1 (Types of Content)) for all purposes of the Agreement. Depending on
the Third-Party Accounts you choose and subject to the privacy settings that you have set in such ThirdParty Accounts, personally identifiable information that you post to your Third-Party Accounts may be
available on and through your Account on Chalkboard Properties. Please note that if a Third-Party Account
or associated service becomes unavailable, or Chalkboard’s access to such Third-Party Account is
terminated by the Third-Party Service provider, then Third-Party Account Content will no longer be
available on and through Chalkboard Properties. You have the ability to disable the connection between
your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the
Application. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS
ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH
SUCH THIRD-PARTY SERVICE PROVIDERS, AND CHALKBOARD DISCLAIMS ANY LIABILITY FOR PERSONALLY
IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS
IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS.
Chalkboard makes no effort to review any Third-Party Account Content for any purpose, including but not
limited to, for accuracy, legality or noninfringement, and Chalkboard is not responsible for any Third-Party
3.3 Registration Data. In registering an account on a Chalkboard Property, you agree to (a)
provide true, accurate, current and complete information about yourself as prompted by the registration
form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it
true, accurate, current and complete. You represent that you are (i) of legal age to form a binding
contract; and (ii) not a person barred from using Chalkboard Properties under the laws of the United
States, your place of residence or any other applicable jurisdiction. You may not share your Account or
password with anyone, and you agree to (y) notify Chalkboard immediately of any unauthorized use of
your password or any other breach of security; and (z) exit from your Account at the end of each session.
If you provide any information that is untrue, inaccurate, not current or incomplete, or Chalkboard has
reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or
incomplete, Chalkboard has the right to suspend or terminate your Account and refuse any and all current
or future use of Chalkboard Properties (or any portion thereof). You agree not to create an Account using
a false identity or false information, or on behalf of someone other than yourself. You agree that you shall
not have more than one Account per platform or Third-Party Service at any given time. Chalkboard
reserves the right to remove or reclaim any usernames at any time and for any reason, including but not
limited to, claims by a third party that a username violates the third party’s rights. You agree not to create
an Account or use Chalkboard Properties if you have been previously removed by Chalkboard, or if you
have been previously banned from any of Chalkboard Properties.
3.4 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and
agree that you shall have no ownership or other property interest in your Account, and you further
acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure
to the benefit of Chalkboard.
3.5 Necessary Equipment and Software. You must provide all equipment and software
necessary to connect to Chalkboard Properties, including but not limited to a mobile device that is suitable
to connect with and use Chalkboard Properties in cases where the Services offer a mobile component.
You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when
accessing Chalkboard Properties.
- RESPONSIBILITY FOR CONTENT.
4.1 Types of Content. You acknowledge that all Content, including Chalkboard Properties, is
the sole responsibility of the party from whom such Content originated. This means that you, and not
Chalkboard, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise
make available (“Make Available”) through Chalkboard Properties (“Your Content”), and that you and
other Registered Users of Chalkboard Properties, and not Chalkboard, are similarly responsible for all
Content that you and they Make Available through Chalkboard Properties (“User Content”).
4.2 No Obligation to Pre-Screen Content. You acknowledge that Chalkboard has no
obligation to pre-screen Content (including, but not limited to, User Content), although Chalkboard
reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the
Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree
that you have no expectation of privacy concerning the transmission of Your Content, including without
limitation chat, text, or voice communications. In the event that Chalkboard pre-screens, refuses or
removes any Content, you acknowledge that Chalkboard will do so for Chalkboard’s benefit, not yours.
Without limiting the foregoing, Chalkboard shall have the right to remove any Content that violates the
Agreement or is otherwise objectionable.
4.3 Storage. Unless expressly agreed to by Chalkboard in writing elsewhere, Chalkboard has
no obligation to store any of Your Content that you Make Available on Chalkboard Properties. Chalkboard
has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the
failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or
transmission of other communications originating with or involving use of Chalkboard Properties. Certain
Services may enable you to specify the level at which such Services restrict access to Your Content. You
are solely responsible for applying the appropriate level of access to Your Content. If you do not choose,
the system may default to its most permissive setting. You agree that Chalkboard retains the right to
create reasonable limits on Chalkboard’s use and storage of the Content, including Your Content, such as
limits on file size, storage space, processing capacity, and similar limits described on the Website and as
otherwise determined by Chalkboard in its sole discretion.
5.1 Chalkboard Properties. Except with respect to Your Content and User Content, you agree
that Chalkboard and its suppliers own all rights, title and interest in Chalkboard Properties. You will not
remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices
incorporated in or accompanying any Chalkboard Properties.
5.2 Trademarks. and all related graphics, logos, service marks and trade names
used on or in connection with any Chalkboard Properties or in connection with the Services are the
trademarks of Chalkboard and may not be used without Chalkboard’s permission in connection with your,
or any third-party, products or services. Other trademarks, service marks and trade names that may
appear on or in Chalkboard Properties are the property of their respective owners.
5.3 Your Content. Chalkboard does not claim ownership of Your Content. However, when
you as a Registered User post or publish Your Content on or in Chalkboard Properties, you represent that
you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any
moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative
works from, distribute, derive revenue or other remuneration from, and communicate to the public,
perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works
in any form, media or technology now known or later developed, for the full term of any worldwide
intellectual property right that may exist in Your Content.
5.4 License to Your Content. Subject to any applicable account settings that you select, you
grant Chalkboard a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive
and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce,
modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes
of operating and providing Chalkboard Properties to you and to our other Registered Users. Please
remember that other Registered Users may search for, see, use, modify and reproduce any of Your
Content that you submit to any “public” area of Chalkboard Properties. You warrant that the holder of
any worldwide intellectual property right, including moral rights, in Your Content, has completely and
effectively waived all such rights and validly and irrevocably granted to you the right to grant the license
stated above. You agree that you, not Chalkboard, are responsible for all of Your Content that you Make
Available on or in Chalkboard Properties. Any Content posted by you in your profile may not contain
nudity, violence, sexually explicit, or offensive subject matter as determined by Chalkboard in its sole
discretion. You may not post or submit for print services a photograph of another person without that
5.5 Username. Notwithstanding anything contained herein to the contrary, by submitting
Your Content to any forums, comments, or any other area on Chalkboard Properties, you hereby expressly
permit Chalkboard to identify you by your username (which may be a pseudonym) as the contributor of
Your Content in any publication in any form, media or technology now known or later developed in
connection with Your Content.
5.6 Feedback. You agree that submission of any ideas, suggestions, documents, and/or
proposals to Chalkboard through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at
your own risk and that Chalkboard has no obligations (including without limitation obligations of
confidentiality) with respect to such Feedback. You represent and warrant that you have all rights
necessary to submit the Feedback. You hereby grant to Chalkboard all right, title, or interest in or to any
intellectual property rights in or relating to any Feedback thereof derived from your use of the Chalkboard
Properties. All right, title, and interest in and to the Feedback are and will remain with Chalkboard.
- USER CONDUCT. As a condition of use, you agree not to use Chalkboard Properties for any
purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any
third party) either (a) take any action or (b) Make Available any Content on or through Chalkboard
Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right
of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive,
fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes
unauthorized or unsolicited advertising; (iv) is violent or threatening, or promotes violence or actions that
are threatening to any other person; (v) impersonates any person or entity, including any employee or
representative of Chalkboard; (vi) promotes discrimination, bigotry, racism, hatred, harassment or harm
against any individual or group; (vii) promotes illegal or harmful activities; (viii) interferes with or attempt
to interfere with the proper functioning of Chalkboard Properties or uses Chalkboard Properties in any
way not expressly permitted by this Agreement; or (ix) attempts to engage in or engage in, any potentially
harmful acts that are directed against Chalkboard Properties, including but not limited to violating or
attempting to violate any security features of Chalkboard Properties, using manual or automated software
or other means to access, “scrape,” “crawl” or “spider” any pages contained in Chalkboard Properties,
introducing viruses, worms, or similar harmful code into Chalkboard Properties, or interfering or
attempting to interfere with use of Chalkboard Properties by any other user, host or network, including
by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” Chalkboard Properties.
- INVESTIGATIONS. Chalkboard may, but is not obligated to, monitor or review Chalkboard
Properties and Content at any time. Without limiting the foregoing, Chalkboard shall have the right, in its
sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content
violates the Agreement or any applicable law. Although Chalkboard does not generally monitor user
activity occurring in connection with Chalkboard Properties or Content, if Chalkboard becomes aware of
any possible violations by you of any provision of the Agreement, Chalkboard reserves the right to
investigate such violations, and Chalkboard may, at its sole discretion, immediately terminate your license
to use Chalkboard Properties, or change, alter or remove Your Content, in whole or in part, without prior
notice to you.
- INTERACTIONS WITH OTHER USERS.
8.1 User Responsibility. You are solely responsible for your interactions with other
Registered Users and any other parties with whom you interact; provided, however, that Chalkboard
reserves the right, but has no obligation, to intercede in such disputes. You agree that Chalkboard will
not be responsible for any liability incurred as the result of such interactions. At all times, you must
conduct yourself in accordance with the Chalkboard Community Guidelines, provided at Chalkboard
8.2 Content Provided by Other Users. Chalkboard Properties may contain User Content
provided by other Registered Users. Chalkboard is not responsible for and does not control User Content.
Chalkboard has no obligation to review or monitor, and does not approve, endorse or make any
representations or warranties with respect to, User Content. You use all User Content and interact with
other Registered Users at your own risk.
- FEES AND PURCHASE TERMS. Chalkboard does not currently charge any fees for the Chalkboard
Properties (including for access to the Services or the Application), but Chalkboard reserves the right to
do so in the future, including but not limited to the right to establish, remove, and / or revise prices, fees,
taxes, or surcharges for any or all services or goods obtained through the Chalkboard Properties at any
time. In the event that we introduce any fees for accessing the Services or Application, we will do so in
any applicable Supplemental Terms or shall update this Agreement in accordance with the procedure
- INDEMNIFICATION. You agree to indemnify and hold Chalkboard, its parents, subsidiaries,
affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Chalkboard Party” and
collectively, the “Chalkboard Parties”) harmless from any losses, costs, liabilities and expenses (including
reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b)
your use of, or inability to use, any Chalkboard Property; (c) your violation of the Agreement; (d) your
violation of any rights of another party, including any Registered Users; or (e) your violation of any
applicable laws, rules or regulations. Chalkboard reserves the right, at its own cost, to assume the
exclusive defense and control of any matter otherwise subject to indemnification by you, in which event
you will fully cooperate with Chalkboard in asserting any available defenses. This provision does not
require you to indemnify any of the Chalkboard Parties for any unconscionable commercial practice by
such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or
suppression or omission of any material fact in connection with the Website or any Services provided
hereunder. You agree that the provisions in this section will survive any termination of your Account, the
Agreement and/or your access to Chalkboard Properties.
- DISCLAIMER OF WARRANTIES AND CONDITIONS.
11.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY
APPLICABLE LAW, YOUR USE OF CHALKBOARD PROPERTIES IS AT YOUR SOLE RISK, AND CHALKBOARD
PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. CHALKBOARD
PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND,
WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR
CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT
ARISING FROM USE OF THE WEBSITE.
(a) CHALKBOARD PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION
THAT: (1) CHALKBOARD PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF CHALKBOARD
PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY
BE OBTAINED FROM USE OF CHALKBOARD PROPERTIES WILL BE ACCURATE OR RELIABLE.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH
CHALKBOARD PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE
FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM
AND ANY DEVICE YOU USE TO ACCESS CHALKBOARD PROPERTIES, OR ANY OTHER LOSS THAT RESULTS
FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER
DISRUPTIONS. CHALKBOARD MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT
TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER
CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM
CHALKBOARD OR THROUGH CHALKBOARD PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY
(e) FROM TIME TO TIME, CHALKBOARD MAY OFFER NEW “BETA” FEATURES OR
TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR
EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR
DISCONTINUED AT CHALKBOARD’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH
FULL FORCE TO SUCH FEATURES OR TOOLS.
11.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT
CHALKBOARD PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD CHALKBOARD PARTIES
LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT
THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
11.3 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR
COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF CHALKBOARD PROPERTIES. YOU
UNDERSTAND THAT CHALKBOARD DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS
OF CHALKBOARD PROPERTIES. CHALKBOARD MAKES NO WARRANTY THAT THE GOODS OR SERVICES
PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN
UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
11.4 Third-Party Materials. As a part of Chalkboard Properties, you may have access to
materials that are hosted by another party. For example, we may incorporate Third-Party Services into
the Services or the Application, including without limitation sports scores and results that are provided by
a third party. YOU AGREE THAT IT IS IMPOSSIBLE FOR CHALKBOARD TO MONITOR SUCH MATERIALS AND
THAT YOU ACCESS THESE MATERIALS AT YOUR OWN RISK AND DO NOT RELY ON CHALKBOARD TO VERIFY
THE ACCURACY OF SUCH MATERIALS.
- LIMITATION OF LIABILITY.
12.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST
EXTENT PROVIDED BY LAW, IN NO EVENT SHALL CHALKBOARD PARTIES BE LIABLE FOR ANY LOSS OF
PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR
DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR
PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT CHALKBOARD
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH
THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF
CHALKBOARD PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY
TO USE CHALKBOARD PROPERTIES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES
RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED; OR
MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH CHALKBOARD PROPERTIES; (c)
UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR
CONDUCT OF ANY THIRD PARTY ON CHALKBOARD PROPERTIES; (e) ANY MATERIALS POSTED OR SHARED
BY A THIRD PARTY ON CHALKBOARD PROPERTIES; OR (f) ANY OTHER MATTER RELATED TO CHALKBOARD
PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE),
PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT
APPLY TO LIABILITY OF A CHALKBOARD PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A
CHALKBOARD PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A CHALKBOARD PARTY’S FRAUD
OR FRAUDULENT MISREPRESENTATION.
12.2 Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, CHALKBOARD PARTIES WILL
NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO CHALKBOARD
BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE
TO SUCH LIABILITY; (b) $100;OR (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH
SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A
CHALKBOARD PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A CHALKBOARD PARTY’S
NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A CHALKBOARD PARTY’S FRAUD OR FRAUDULENT
12.3 User Content. EXCEPT FOR CHALKBOARD’S OBLIGATIONS TO PROTECT YOUR PERSONAL
FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT
NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION
12.4 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR
LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE
EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
12.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE
FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CHALKBOARD AND YOU.
- PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. It is Chalkboard’s policy to
terminate membership privileges of any Registered User who repeatedly infringes copyright upon prompt
notification to Chalkboard by the copyright owner or the copyright owner’s legal agent. Without limiting
the foregoing, if you believe that your work has been copied and posted on Chalkboard Properties in a
way that constitutes copyright infringement, please provide our Copyright Agent with the following
information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner
of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c)
a description of the location on Chalkboard Properties of the material that you claim is infringing; (d) your
address, telephone number and e-mail address; (e) a written 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; and (f) a
statement by you, made under penalty of perjury, that the above information in your notice is accurate
and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact
information for Chalkboard’s Copyright Agent for notice of claims of copyright infringement is as follows:
Copyright Manager, 379 W Broadway, Floor 2, New York NY 10012.
- MONITORING AND ENFORCEMENT. Chalkboard reserves the right to: (a) remove or refuse to
post any of your Content for any or no reason in our sole discretion; (b) take any action with respect to
any of your Content that we deem necessary or appropriate in our sole discretion, including if we believe
that such Content violates this Agreement, infringes any intellectual property right or other right of any
person or entity, threatens the personal safety of users of the Chalkboard Properties or the public, or
could create liability for the Chalkboard; (c) disclose your identity or other information about you to any
third party who claims that material posted by you violates their rights, including their intellectual
property rights or their right to privacy; (d) take appropriate legal action, including without limitation,
referral to law enforcement, for any illegal or unauthorized use of the Chalkboard Properties; and/or (e)
terminate or suspend your access to all or part of the Chalkboard Properties for any or no reason, including
without limitation, any violation of this Agreement.
If Chalkboard becomes aware of any possible violations by you of the Agreement, Chalkboard reserves
the right to investigate such violations. If, as a result of the investigation, Chalkboard believes that criminal
activity has occurred, Chalkboard reserves the right to refer the matter to, and to cooperate with, any and
all applicable legal authorities. Chalkboard is entitled, except to the extent prohibited by applicable law,
to disclose any information or materials on or in Chalkboard Properties, including Your Content, in
Chalkboard’s possession in connection with your use of Chalkboard Properties, to (i) comply with
applicable laws, legal process or governmental request; (ii) enforce the Agreement, (iii) respond to any
claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer
service, or (v) protect the rights, property or personal safety of Chalkboard, its Registered Users or the
public, and all enforcement or other government officials, as Chalkboard in its sole discretion believes to
be necessary or appropriate.
- TERM AND TERMINATION.
15.1 Term. The Agreement commences on the date when you accept them (as described in
the preamble above) and remains in full force and effect while you use Chalkboard Properties, unless
terminated earlier in accordance with the Agreement.
15.2 Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the
Agreement commenced on the earlier to occur of (a) the date you first used Chalkboard Properties or (b)
the date you accepted the Agreement, and will remain in full force and effect while you use any
Chalkboard Properties, unless earlier terminated in accordance with the Agreement.
15.3 Termination of Services by Chalkboard. If you have materially breached any provision of
the Agreement, or if Chalkboard is required to do so by law (e.g., where the provision of the Website, the
Application, or the Services is, or becomes, unlawful), Chalkboard has the right to, immediately and
without notice, suspend or terminate any Services provided to you. You agree that all terminations for
cause shall be made in Chalkboard’s sole discretion and that Chalkboard shall not be liable to you or any
third party for any termination of your Account.
15.4 Termination of Services by You. If you want to terminate the Services provided by
Chalkboard, you may do so by (a) notifying Chalkboard at any time and (b) closing your Account for all of
the Services that you use. Your notice should be sent, in writing, to Chalkboard’s address set forth below.
15.5 Effect of Termination. Termination of any Service includes removal of access to such
Service and barring of further use of the Service. Termination of all Services also includes deletion of your
password and all related information, files and Content associated with or inside your Account (or any
part thereof), including Your Content. Upon termination of any Service, your right to use such Service will
automatically terminate immediately. You understand that any termination of Services may involve
deletion of Your Content associated therewith from our live databases. Chalkboard will not have any
liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All
provisions of the Agreement which by their nature should survive, shall survive termination of Services,
including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
15.6 No Subsequent Registration. If your registration(s) with, or ability to access, Chalkboard
Properties or any other Chalkboard community, is discontinued by Chalkboard due to your violation of
any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree
that you shall not attempt to re-register with or access Chalkboard Properties or any Chalkboard
community through use of a different member name or otherwise, and you acknowledge that you will not
be entitled to receive a refund for fees related to those Chalkboard Properties to which your access has
been terminated. In the event that you violate the immediately preceding sentence, Chalkboard reserves
the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any
notice or warning to you.
- INTERNATIONAL USERS. Chalkboard Properties can be accessed from countries around the world
and may contain references to Services and Content that are not available in your country. These
references do not imply that Chalkboard intends to announce such Services or Content in your country.
Chalkboard Properties are controlled and offered by Chalkboard from its facilities in the United States of
America. Chalkboard makes no representations that Chalkboard Properties are appropriate or available
for use in other locations. Those who access or use Chalkboard Properties from other countries do so at
their own volition and are responsible for compliance with local law.
- ARBITRATION AGREEMENT.
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It
requires you to arbitrate disputes with us and limits the manner in which you can seek relief from us.
17.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration
Agreement, you and Chalkboard agree that any dispute, claim, disagreements arising out of or relating in
any way to your access to or use of the Services, or this Agreement and prior versions of this Agreement,
including claims and disputes that arose between us before the effective date of this Agreement (each, a
“Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and
Chalkboard may assert claims or seek relief in small claims court if such claims qualify and remain in small
claims court; and (2) you or Chalkboard may seek equitable relief in court for infringement or other misuse
of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights,
and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose
or involve facts occurring before the existence of this or any prior versions of this Agreement as well as
claims that may arise after the termination of this Agreement.
17.2 Informal Dispute Resolution. There might be instances when a Dispute arises between
you and Chalkboard. If that occurs, Chalkboard is committed to working with you to reach a reasonable
resolution. You and Chalkboard agree that good faith informal efforts to resolve Disputes can result in a
prompt, low-cost and mutually beneficial outcome. You and Chalkboard therefore agree that before
either party commences arbitration against the other (or initiates an action in small claims court if a party
so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort
to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution
Conference”). You and Chalkboard further agree that either party may seek urgent injunctive relief from
a court, if necessary, prior to an Informal Dispute Resolution Conference. If you are represented by
counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an
Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party
receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Chalkboard
that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to
email@example.com or certified mail to our offices located at 447 Broadway, 2nd Floor #1194
New York, NY 10013. The Notice must include: (1) your name, telephone number, mailing address, e-mail
address associated with your account (if you have one); (2) the name, telephone number, mailing address
and e-mail address of your counsel, if any; and (3) a description of your Dispute. The Informal Dispute
Resolution Conference shall be individualized such that a separate conference must be held each time
either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users
in similar cases, unless all parties agree. Multiple individuals initiating a Dispute cannot participate in the
same Informal Dispute Resolution Conference unless all parties agree. In the time between a party
receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration
Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating
party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and
requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing
fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference
process required by this section.
17.3 Waiver of Jury Trial. YOU AND CHALKBOARD HEREBY WAIVE ANY CONSTITUTIONAL AND
STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and
Chalkboard are instead electing that all Disputes shall be resolved by arbitration under this Arbitration
Agreement, except as specified in the section titled “Applicability of Arbitration Agreement” above. There
is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
17.4 Waiver of Class and Other Non-Individualized Relief. YOU AND CHALKBOARD AGREE
THAT, EXCEPT AS SPECIFIED IN THE SECTION ENTITLED “BATCH ARBITRATION,” EACH OF US MAY BRING
CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE,
OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT,
HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR
MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE
CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER
CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or
injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to
provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall
it, affect the terms and conditions under the Section entitled “Batch Arbitration.” Notwithstanding
anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not
subject to any further appeal or recourse, that the limitations of this Section are invalid or unenforceable
as to a particular claim or request for relief (such as a request for public injunctive relief), you and
Chalkboard agree that that particular claim or request for relief (and only that particular claim or request
for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located
in the State of New York. All other Disputes shall be arbitrated or litigated in small claims court in
accordance with this Section 17. This section does not prevent you or Chalkboard from participating in a
class-wide settlement of claims.
17.5 Rules and Forum. This Agreement evidences a transaction involving interstate
commerce; and notwithstanding any other provision herein with respect to the applicable substantive
law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of
this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process
described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and
Chalkboard agree that either party shall have the right to finally resolve the Dispute through binding
arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in
accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by
this section of this Arbitration Agreement. The AAA Rules are currently available at
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the
“Request”). The Request must include: (1) the name, telephone number, mailing address, e-mail address
of the party seeking arbitration and the account username (if applicable) as well as the email address
associated with any applicable account; (2) a statement of the legal claims being asserted and the factual
bases of those claims; (3) a description of the remedy sought and an accurate, good-faith calculation of
the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal
Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any
necessary filing fees in connection with such arbitration. If the party requesting arbitration is represented
by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email
address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of
counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the
circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass,
cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses
and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending,
modifying, or reversing existing law or for establishing new law; and (3) the factual and damages
contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support
after a reasonable opportunity for further investigation or discovery.
Unless you and Chalkboard otherwise agree, or the Batch Arbitration process discussed in the Section
entitled “Batch Arbitration” is triggered, the arbitration will be conducted in the county where you reside.
Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information
between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to
arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and
costs will be solely as set forth in the applicable AAA Rules.
You and Chalkboard agree that all materials and documents exchanged during the arbitration proceedings
shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants,
or business advisors, and then subject to the condition that they agree to keep all materials and
documents exchanged during the arbitration proceedings confidential.
17.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice
law in the state of New York and will be selected by the parties from the AAA’s roster of consumer dispute
arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of
the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if
the Batch Arbitration process under the Section entitled “Batch Arbitration” is triggered, the AAA will
appoint the arbitrator for each batch.
17.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any
Dispute, including, without limitation, disputes arising out of or related to the interpretation or application
of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the
Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all
Disputes arising out of or relating to the Section entitled “Waiver of Class and Other Non-Individualized
Relief,” including any claim that all or part of the Section entitled “Waiver of Class and Other NonIndividualized Relief” is unenforceable, illegal, void or voidable, or that such Section entitled “Waiver of
Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent
jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the Section entitled “Batch
Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of
competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied
any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not
by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be
decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will
not be consolidated with any other matters or joined with any other cases or parties, except as expressly
provided in the Section entitled “Batch Arbitration.” The arbitrator shall have the authority to grant
motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement
of decision describing the essential findings and conclusions on which the award is based, including the
calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us.
Judgment on the arbitration award may be entered in any court having jurisdiction.
17.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in
arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the
Request was frivolous or was brought for an improper purpose (as measured by the standards set forth
in Federal Rule of Civil Procedure 11(b)). If you or Chalkboard need to invoke the authority of a court of
competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration
in such action shall have the right to collect from the other party its reasonable costs, necessary
disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The
prevailing party in any court action relating to whether either party has satisfied any condition precedent
to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable
costs, necessary disbursements, and reasonable attorneys’ fees and costs.
17.9 Batch Arbitration. To increase the efficiency of administration and resolution of
arbitrations, you and Chalkboard agree that in the event that there are one hundred (100) or more
individual Requests of a substantially similar nature filed against Chalkboard by or with the assistance of
the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as
possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per
batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a
final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3)
provide for the resolution of each batch as a single consolidated arbitration with one set of filing and
administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be
determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the
same event or factual scenario and raise the same or similar legal issues and seek the same or similar
relief. To the extent the parties disagree on the application of the Batch Arbitration process, the
disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine
the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite
resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative
Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The
Administrative Arbitrator’s fees shall be paid by Chalkboard.
You and Chalkboard agree to cooperate in good faith with the AAA to implement the Batch Arbitration
process including the payment of single filing and administrative fees for batches of Requests, as well as
any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a
discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the
adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or
mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any
circumstances, except as expressly set forth in this provision.
17.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration
Agreement by sending written notice of your decision to out to: 447 Broadway, 2nd Floor #1194
New York, NY 10013, and via e-mail to: firstname.lastname@example.org within thirty (30) days after first becoming
subject to this Arbitration Agreement. Your notice must include your name and address, the email address
you used to set up your Account (if you have one), and an unequivocal statement that you want to opt
out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this
Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any
other arbitration agreements that you may currently have, or may enter in the future, with us.
17.11 Invalidity, Expiration. Except as provided in the Section entitled “Waiver of Class or Other
Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to
be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be
severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further
agree that any Dispute that you have with Chalkboard as detailed in this Arbitration Agreement must be
initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will
be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such
arbitration in the same manner as those statutes of limitation would apply in the applicable court of
17.12 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree
that if Chalkboard makes any future material change to this Arbitration Agreement, we will notify you.
Unless you reject the change within thirty (30) days of such change becoming effective by writing to
Chalkboard at 447 Broadway, 2nd Floor #1194, New York NY 10013 and e-mailing email@example.com,
your continued use of the Chalkboard Services, including the acceptance of products and services offered
on the Services following the posting of changes to this Arbitration Agreement constitutes your
acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new
opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this
Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration
Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating
in any way to your access to or use of the Services or of the Chalkboard Services, or this Agreement, the
provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted
any subsequent changes to this Agreement) remain in full force and effect. Chalkboard will continue to
honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
17.13 Governing Law and Jurisdiction. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the conflict of laws provisions
thereof, and the United States of America, including the Federal Arbitration Act. Further, for any action
arising out of or related to this Agreement and to the extent the provisions in this Section 17 do not apply,
you consent to the exclusive jurisdiction and venue of the state and federal courts located in New York
County, New York.
- THIRD-PARTY SERVICES.
18.1 Third-Party Websites, Applications and Ads. Chalkboard Properties may contain links to
third-party websites (“Third-Party Websites”), applications (“Third-Party Applications”) and
advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website,
Third-Party Application or Third-Party Ad, we will not warn you that you have left Chalkboard Properties
and you are subject to the terms and conditions (including privacy policies) of another website or
destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the
control of Chalkboard. Chalkboard is not responsible for any Third-Party Websites, Third-Party
Applications or Third-Party Ads. Chalkboard provides these Third-Party Websites, Third-Party Applications
and Third-Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or
make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party
Ads, or any product or service provided in connection therewith. You use all links in Third-Party Websites,
Third-Party Applications and Third-Party Ads at your own risk. When you leave our Website, this
Agreement and our policies no longer govern. You should review applicable terms and policies, including
privacy and data gathering practices, of any Third-Party Websites, Third-Party Applications, or Third-Party
Ads, and make whatever investigation you feel necessary or appropriate before proceeding with any
transaction with any third party.
18.2 App Stores. You acknowledge and agree that the availability of the Application and the
Services is dependent on the third party from whom you received the Application license, e.g., the Apple
App Store or Google Play (each, an “App Store”). You acknowledge that the Agreement is between you
and Chalkboard and not with the App Store. Chalkboard, not the App Store, is solely responsible for
Chalkboard Properties, including the Application, the content thereof, maintenance, support services, and
warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or
intellectual property infringement). In order to use the Application, you must have access to a wireless
network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any)
charged by the App Store in connection with Chalkboard Properties, including the Application. You agree
to comply with, and your license to use the Application is conditioned upon your compliance with all terms
of agreement imposed by the applicable App Store when using any Chalkboard Property, including the
Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the
Agreement and will have the right to enforce it.
18.3 Accessing and Downloading the Application from the Apple App Store. The following
applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) the Agreement is concluded between you and
Chalkboard only, and not Apple, and (ii) Chalkboard, not Apple, is solely responsible for the App Store
Sourced Application and content thereof. Your use of the App Store Sourced Application must comply
with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any
maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any
applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store
Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no
other warranty obligation whatsoever with respect to the App Store Sourced Application. As between
Chalkboard and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any
failure to conform to any warranty will be the sole responsibility of Chalkboard.
(d) You and Chalkboard acknowledge that, as between Chalkboard and Apple, Apple
is not responsible for addressing any claims you have or any claims of any third party relating to the App
Store Sourced Application or your possession and use of the App Store Sourced Application, including, but
not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to
conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer
protection or similar legislation.
(e) You and Chalkboard acknowledge that, in the event of any third-party claim that
the App Store Sourced Application or your possession and use of that App Store Sourced Application
infringes that third party’s intellectual property rights, as between Chalkboard and Apple, Chalkboard, not
Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such
intellectual property infringement claim to the extent required by the Agreement.
(f) You and Chalkboard acknowledge and agree that Apple, and Apple’s subsidiaries,
are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced
Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will
have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to
your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of the Agreement, you must comply with all
applicable third-party terms of agreement when using the App Store Sourced Application.
- GENERAL PROVISIONS.
19.1 Electronic Communications. The communications between you and Chalkboard may
take place via electronic means, whether you visit Chalkboard Properties or send Chalkboard e-mails, or
whether Chalkboard posts notices on Chalkboard Properties or communicates with you via e-mail. For
contractual purposes, you (a) consent to receive communications from Chalkboard in an electronic form;
and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications
that Chalkboard provides to you electronically satisfy any legal requirement that such communications
would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but
not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.
19.2 Release. You hereby release Chalkboard Parties and their successors from claims,
demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death,
and property damage, that is either directly or indirectly related to or arises from your use of Chalkboard
Properties, including but not limited to, any interactions with or conduct of other Registered Users or
third-party websites of any kind arising in connection with or as a result of the Agreement or your use of
Chalkboard Properties. If you are a California resident, you hereby waive California Civil Code Section
1542, which states, “A general release does not extend to claims that the creditor or releasing party does
not know or suspect to exist in his or her favor at the time of executing the release and that, if known by
him or her, would have materially affected his or her settlement with the debtor or released party.” The
foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of
any kind, including personal injuries, death or property damage for any unconscionable commercial
practice by a Chalkboard Party or for such party’s fraud, deception, false promise, misrepresentation or
concealment, suppression or omission of any material fact in connection with the Chalkboard Properties.
19.3 Assignment. The Agreement, and your rights and obligations hereunder, may not be
assigned, subcontracted, delegated or otherwise transferred by you without Chalkboard’s prior written
consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing
will be null and void.
19.4 Force Majeure. Chalkboard shall not be liable for any delay or failure to perform resulting
from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots,
embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation
facilities, fuel, energy, labor or materials.
19.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with
respect to Chalkboard Properties, please contact us at: firstname.lastname@example.org. We will do our best to
address your concerns. If you feel that your concerns have been addressed incompletely, we invite you
to let us know for further investigation.
19.6 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate
litigation in a court, both you and Chalkboard agree that all claims and disputes arising out of or relating
to the Agreement will be litigated exclusively in the state or federal courts located in New York, New York.
19.7 Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED
AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE
UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT
APPLY TO THE AGREEMENT.
19.8 Notice. Where Chalkboard requires that you provide an e-mail address, you are
responsible for providing Chalkboard with your most current e-mail address. In the event that the last email address you provided to Chalkboard is not valid, or for any reason is not capable of delivering to you
any notices required/ permitted by the Agreement, Chalkboard’s dispatch of the e-mail containing such
notice will nonetheless constitute effective notice. You may give notice to Chalkboard at the following
address: 447 Broadway, 2nd Floor #1194, New York NY 10013. Such notice shall be deemed given when
received by Chalkboard by letter delivered by nationally recognized overnight delivery service or first class
postage prepaid mail at the above address.
19.9 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion
will not be deemed a waiver of any other provision or of such provision on any other occasion.
19.10 Severability. If any portion of this Agreement is held invalid or unenforceable, that
portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties,
and the remaining portions shall remain in full force and effect.
19.11 Export Control. You may not use, export, import, or transfer Chalkboard Properties
except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Chalkboard Properties,
and any other applicable laws. In particular, but without limitation, Chalkboard Properties may not be
exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S.
Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s
Denied Person’s List or Entity List. By using Chalkboard Properties, you represent and warrant that (i) you
are not located in a country that is subject to a U.S. Government embargo, or that has been designated
by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S.
Government list of prohibited or restricted parties. You also will not use Chalkboard Properties for any
purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles,
nuclear, chemical or biological weapons. You acknowledge and agree that products, services or
technology provided by Chalkboard are subject to the export control laws and regulations of the United
States. You shall comply with these laws and regulations and shall not, without prior U.S. government
authorization, export, re-export, or transfer Chalkboard products, services or technology, either directly
or indirectly, to any country in violation of such laws and regulations.
19.12 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report
complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California
Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112,
Sacramento, CA 95834, or by telephone at (800) 952-5210.
19.13 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the
parties with respect to the subject matter hereof and supersedes and merges all prior discussions between
the parties with respect to such subject matter.