Last Updated Date: August 7, 2021
Writable is an educational, teacher-guided program that is intended for use by Teachers and their Students.
Please read these Terms of Service (the “Terms of Service”) carefully. These Terms of Service apply to the use of our website at www.writable.com (including all subdomains thereof, the “Site”) and the instructional writing and formative assessment service provided by Writable, Inc. (“Writable” or “we”) through a web-based application at app.writable.com that you can access on your computer, mobile device, or tablet (the “Application”). The Site and the Application are collectively referred to herein as the “Writable Service.”
By registering for and/or using the Writable Services in any manner, including but not limited to visiting or browsing the Site or Application, you agree to these Terms of Service. If you do not agree, or do not have all requisite authority and consent to be bound by these Terms of Service (as further described below), you may not access or use Writable Services in any way.
You represent and warrant that you are of legal age to form a binding contract, or if you are not of legal age to form a binding contract (in many jurisdictions, this age is 18), you may only use the Writable Services with the express consent of and agreement to these Terms of Service by your parent, guardian, Teacher, school or school district. If you are under age 18, you may only register for and use the Writable Services under the supervision of an adult, in which case the adult shall be responsible for any and all activities conducted under such Student’s account to use the Writable Services (an “Account”).
If you’re agreeing to these Terms of Service on behalf of an organization or entity (for example, if you’re a Teacher agreeing to these Terms of Service on behalf of a school or an administrator agreeing to these Terms of Service on behalf of your district), you represent and warrant that you are authorized to agree to these Terms of Service on that organization or entity’s behalf and bind them to these Terms of Service. In such cases, the term “you” as used herein shall also refer to such school or district. Your school or district will also be responsible for any activities, including any violation of these Terms of Service by any Student, that occur under your Account and any Accounts created using your Account.
Since we are constantly trying to improve our Writable Services, these Terms of Service may need to change along with the Writable Services. We reserve the right to change these Terms of Service at any time, but if we do, we will bring it to your attention at least 30 days before those changes take effect, by placing a notice on the Site, and/or by sending you an email and/or by some other means. We do reserve the right to effect important changes more quickly as needed, as in the case of a requirement for legal compliance, a security threat or other emergency situation, or if we are granting you more rights than you had under the previous version of these Terms of Service. Those important changes will be effective immediately. Please note that if you’ve opted not to receive legal notice emails from us (or you haven’t provided us with your email address), those legal notices will still govern your use of the Services, and you are still responsible for reading and understanding them. Please regularly check the Site to view the most current version of these Terms of Service.
“Content” means text, graphics, images, music, software, audio, video, information or other materials.
“De-identified Data” means Student Data with all direct and indirect personal identifiers removed such as name, school ID numbers, date of birth, class roster, demographic information and location information, to the extent any is collected.
“Member” means a Student or a Teacher who accesses the Writable Service.
“Member Content” means Content that a Member posts, uploads, publishes, submits or transmits to be made available through the Writable Service, except for Student Data.
“Minor Student” means a Student under the age of 13 who has been provided access to the Writable Service by a Teacher or a parent (or legal guardian) of such Student.
“Site Content” means Writable Content and Member Content.
“Student” means a user in a Teacher’s class who completes Writable’s account registration process using a Teacher-provided code or joins a teacher’s Writable class through the launch of a school-enabled learning management system such as Google Classroom, Schoology, Canvas or HMH Ed, as described under “Account Registration” below.
“Student Data” means all data that personally identifies a Student, such as name, address, username, and password, or any other non-public information about a Student, such as a Student’s educational records and performance, but does not include De-Identified Data.
“Teacher” means a teacher or other educational administrator accessing the Writable Service on behalf of a school or district, who has been designated by Writable as a “Teacher,” whose Member Content submissions will be treated as Teacher Content under these Terms of Service.
“Teacher Content” means any Member Content that a Teacher submits to the Writable Service, such as teacher-created assignments or prompts.
“Writable Content” means Content that Writable makes available through the Site or Writable Service, including any Content licensed to Writable from a third party, but excluding Member Content and Student Data. This may include, but is not limited to, writings/prompts to be assigned by Teachers or otherwise created by Writable or its licensors, such as curricular collections, assignments, videos or prompts.
Use by Minor Students
Writable collects limited personal information from Minor Students, but only where such Minor Student’s Teacher or school administrator has elected to make the Writable Service available to such Minor Student for the use and benefit of the learning environment. If you are a Minor Student, please do not send any personal information about yourself to Writable, other than what we request from you when you sign up for the Writable Service. In the event that we learn that we have collected personal information from a Minor Student without consent from his or her Teacher, school administrator or parent (or legal guardian), or if we learn a Minor Student has provided us personal information beyond what we request when he or she signs up for the Writable Service, we will delete that information as quickly as possible. If you believe that a Minor Student may have provided us personal information beyond what is requested when signing up for the Writable Service, please contact us at firstname.lastname@example.org.
For Teachers and/or School Administrators
Changes in Eligibility
In the event that you are a Teacher who is no longer (a) employed by your school (or another school through which you receive Writable Service) or (b) otherwise authorized to view or use Student Data, you (i) must notify us immediately of such change and (ii) are not permitted to continue to view or use the Writable Service or such Student Data.
The Writable Service is a paid/premium service with a limited free trial period. In the event you choose to use paid aspects of the Writable Service, you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted in the Writable Service. Teachers may purchase access to the Writable Service in the “Manage Subscriptions” area of their account using a credit card, or a school or district can purchase access to the Writable Service for use by its Teachers and Students using a purchase order, check, direct deposit or credit card. If a Teacher recommends use of Writable but sets their class to “self-pay”, a parent or responsible adult may be asked to pay for the Writable Service on behalf of the applicable Student using a credit card. All fees are non-refundable and non-transferable except as expressly provided in these Terms of Service. All fees and applicable taxes, if any, are payable in United States dollars.
License granted by Writable
Subject to your compliance with the terms and conditions of these Terms of Service, Writable grants you a limited, non-exclusive, non-transferable license, (i) to access, view, download and print any Writable Content solely for your personal and non-commercial purposes; and (ii) to access and view any Member Content that Writable makes available to you solely for your personal and non-commercial purposes and for no other purposes.
Subject to your compliance with these Terms of Service, Writable grants you a limited non-exclusive, non-transferable right to access and use the Application on a single mobile device or computer that you own or control and run such copy of the Application solely for your own personal use. You have no right to sublicense the license rights granted in this Section; provided, however, a Teacher, school or district who purchases access to the Writable Service on behalf of a Student solely for the purpose of granting such Student access to the Writable Service subject to these Terms of Service.
In addition, you agree not to use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Writable Service (including any Site Content), except as expressly permitted in these Terms of Service. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Writable or its licensors, except for the licenses and rights expressly granted in these Terms of Service.
License granted by a Member
Members may post, upload, publish, submit or transmit Member Content to be made available through the Writable Service. By making available any Member Content through the Writable Service, and unless you have agreed otherwise with Writable in writing, you hereby grant to Writable a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, access, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such Member Content on, through or by means of the Writable Service; provided that (x) Writable will not charge money, apart from the fees applicable to access the Writable Service generally, to access Teacher Content unless it first receives written consent from the Teacher who authored such Teacher Content, (y) the parent or guardian who is supervising a Student’s use of the Writable Service or the Teacher, school or district who enters into these Terms of Service for the purpose of providing a Student with access to the Writable Service, grants the foregoing license in respect of Student Content to Writable on such Student’s behalf to the extent such Student has not agreed to these Terms of Service or such Terms of Service are not otherwise enforceable against such Student. The applicable parent, guardian, Teacher, school or district granting the foregoing license represents and warrants that they have all necessary rights and permissions to grant such license in the Student Content to Writable. Writable does not claim any ownership rights in any such Member Content and nothing in these Terms of Service will be deemed to restrict any rights that you may have to use and exploit any such Member Content.
You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Writable Service. Accordingly, you represent and warrant that you either are the sole and exclusive owner of all Member Content that you make available through the Writable Service or you have all rights, licenses, consents and releases that are necessary to grant to Writable the rights in such Member Content, as contemplated under these Terms of Service.
Teachers and school administrators using the Writable Service are solely responsible for ensuring that you and your school are compliant with all applicable laws and regulations related to your disclosure of Student Data and other Student information (“Student Records”) to Writable in connection with the Writable Service, including, but not limited to the Family Educational Rights and Privacy Act (“FERPA”). Without limiting the generality of the foregoing, for all Student Records disclosed to Writable, you represent and warrant, to the extent required by applicable law such as FERPA, that your school has (a) notified such Students’ parents or legal guardians of your use of third party services, including Writable, and the potential disclosure of Student Records in connection with such use and (b) obtained the appropriate consent(s) from the parents or legal guardians of such Students. If such Student is 18 years old or older, the notice and consent requirements of (a) and (b) shall apply to the Student instead of such Student’s parent or legal guardian. For the purposes of FERPA, Writable shall be considered a School Official, under the control and direction of the Teachers and school administrators with regard to Student Records.
By making available any Student Data to Writable, including on or through the Writable Service, you grant to Writable a nonexclusive license to view, download, reproduce, modify, create derivative works of, distribute and display Student Data solely for the purposes of (a) providing the Writable Service and (b) creating, using, and disclosing De-Identified Data about Students for product development, research, or other purposes. Notwithstanding the foregoing, Writable may make Student Data available (i) upon a verified request by the school, Teacher, parent or school administrator who provided such Student Data or who would otherwise have verified authority to receive such Student Data, and (ii) Writable’s subcontractors used to perform the Writable Service. Upon request, Writable agrees to share with you the names of subcontractors that have direct access to Student Data made available by you. All subcontractors and successor entities of Writable will be subject to the protections for Student Data that are substantially consistent with those set forth in these Terms of Service.
Writable will store and process all Student Data in accordance with industry standard practices. This includes appropriate administrative, physical and technical safeguards to secure Student Data from unauthorized access, disclosure and use. Writable shall conduct periodic risk assessments and use commercially reasonable efforts to remediate identified security vulnerabilities. Writable will also have an incident response plan and will promptly notify the relevant school in the event of a security or privacy incident or breach of personal information involving such school’s Members.
Writable will not (a) sell or trade Student Data; (b) use any Student Data to advertise or market to Students or their parents or legal guardians; or (c) use Student Data except as expressly stated herein. From time to time, Writable may direct advertising or marketing to schools but shall de-identify any Student Data used in connection with such marketing efforts.
When Student Data is no longer needed for the provision of the Writable Service, at the request of the school, Student or Student’s parent or legal guardian, as applicable, Writable will destroy all Student Data in its possession, and in the possession of any subcontractors or agents to which Writable transferred Student Data, or securely transfer such Student Data to the requesting school, if legally permitted.
The Writable Service and Site Content are protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in these Terms of Service, Writable and its licensors exclusively own all right, title and interest in and to the Writable Service and Site Content, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Writable Service or Site Content.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Writable Service (“Feedback”). You may submit Feedback by emailing us at email@example.com or through the “Help” section of the Writable Service. You acknowledge and agree that we may use your feedback or suggestions without any obligation to compensate you for them.
You agree not to do any of the following:
Writable will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Writable may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms of Service. You acknowledge that Writable has no obligation to monitor your access to or use of the Writable Service or Site Content, or to review or edit any Member Content, but has the right to do so for the purpose of operating the Writable Service, to ensure your compliance with these Terms of Service, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Writable reserves the right, at any time and without prior notice, to remove or disable access to any Site Content, that Writable, at its sole discretion, considers to be in violation of these Terms of Service or otherwise harmful to the Writable Service.
Links to Third-Party Websites
The Writable Service may contain links to third-party websites, services, or resources that are not owned or controlled by Writable. You acknowledge and agree that Writable has no control over and is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, privacy policies, practices, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Writable of such websites or resources or the content, products, practices, privacy policies, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products, or services on or available from such websites or resources. You expressly relieve Writable from any and all liability arising from your use of any third-party website or services or third party content. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline interaction with any other person.
Third Party Accounts
Writable may, now or in the future, incorporate certain functions that allow you to interact with the Writable Service through your accounts on certain supported third-party services (“Linked Accounts”), such as learning management systems (Schoology, Canvas, Google Classroom, or HMH Ed), other third party, single sign-on accounts such Google or Microsoft, and social networks where users can like or share non-student Member Content assignment links, or other similar features. If you choose to use such features, you grant Company permission to access and use your Linked Account for the purpose of processing your requests. Your use of Linked Accounts is subject to the terms and conditions with the providers of such Linked Accounts.
Termination and Account Cancellation
Writable will have the right to suspend or disable the Writable Service or terminate these Terms of Service with respect to any Member Account that is in breach of these Terms of Service, as determined by Writable in its sole discretion and without prior notice to the Member. If you are Member that is not using any paid features of the Writable Service, Writable reserves the right to revoke your access to and use of the Writable Service and Site Content at any time, with or without cause. In the event Writable terminates these Terms of Service for your breach, you will remain liable for all amounts due hereunder. You may cancel your Account at any time by sending an email to firstname.lastname@example.org.
If you do cancel your Account, any Content you have submitted on the Writable Service will remain stored with Writable and viewable through the Writable Service, unless you contact us and specifically request deletion of your Content.
In addition, unless a legal request has been made for a user’s personally identifiable information, we do not retain and will delete or anonymize personally identifiable information in a Member’s Account within a reasonable period after we are informed the Account will no longer be used or that these Terms of Service have been terminated by you, or if an Account becomes inactive and we are unable to contact the relevant user, their school or school district. We may use aggregated and anonymized information derived from your personally identifiable information after you update or delete it, but not in a manner that would identify you personally.
THE WRITABLE SERVICES AND SITE CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, WRITABLE EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WRITABLE MAKES NO WARRANTY THAT THE WRITABLE SERVICES OR SITE CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WRITABLE MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, WRITABLE SERVICES OR SITE CONTENT PURCHASED OR OBTAINED THROUGH THE WRITABLE SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE WRITABLE SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM WRITABLE OR THROUGH THE WRITABLE SERVICES OR CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE WRITABLE SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE WRITABLE SERVICE. YOU UNDERSTAND THAT WRITABLE DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF THE WRITABLE SERVICE, NOR DOES WRITABLE MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE WRITABLE SERVICE.
You agree to defend, indemnify, and hold Writable, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Writable Service or Site Content, or your violation of these Terms of Service, including breach of any representations or warranties herein.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE WRITABLE SERVICES AND SITE CONTENT REMAINS WITH YOU. NEITHER WRITABLE NOR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE WRITABLE SERVICE OR SITE CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, WRITABLE SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR WRITABLE SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF WRITABLE SERVICE OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR SITE CONTENT, OR FROM ANY COMMUNICATIONS OR INTERACTIONS WITH OTHER USERS OF THE WRITABLE SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE WRITABLE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WRITABLE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL WRITABLE’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE, ANY ANCILLARY AGREEMENT ENTERED INTO WITH RESPECT TO THE WRITABLE SERVCIE (INCLUDING ANY STUDENT DATA PRIVACY AGREEMENT OR OTHER SIMILAR AGREEMENT), OR FROM THE USE OF OR INABILITY TO USE THE WRITABLE SERVICES OR SITE CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO WRITABLE FOR USE OF THE WRITABLE SERVICES OR CONTENT IN THE PRIOR TWELVE (12) MONTHS, OR FIFTY DOLLARS ($50) IF YOU HAVE NOT PAID ANY SUCH AMOUNTS, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WRITABLE AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You may not use, export, re-export, import, or transfer the Application except as authorized by United States law, the laws of the jurisdiction in which you obtained the Application, and any other applicable laws. In particular, but without limitation, the Application may not be exported or re-exported directly or indirectly, to any countries that are subject to U.S. export restrictions.
Procedure for Making Claims of Copyright Infringement
It is Writable’s policy to terminate membership privileges of any Member who repeatedly infringes copyright upon prompt notification to Writable 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 the Writable Service in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Writable Service of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) 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; (6) 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 our Copyright Agent for notice of claims of copyright infringement is as follows: email@example.com.
DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER
Please read this carefully. It affects your rights.
Most customer concerns can be resolved quickly and to a customer’s satisfaction by contacting us at firstname.lastname@example.org. This Dispute Resolution and Arbitration Provision facilitates the prompt and efficient resolution of any disputes that may arise between you and us. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Dispute Resolution and Arbitration Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.
Please read this Dispute Resolution and Arbitration Provision carefully. It provides that all Disputes between you and us shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees).
For the purpose of this Dispute Resolution and Arbitration Provision, “we” or “us” means Writable, Inc., and our parents, subsidiaries, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and us regarding any aspect of your relationship with us, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Dispute Resolution and Arbitration Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties (such as our licensors, suppliers, dealers or third party vendors) relating to the Website whenever you also assert claims against us in the same proceeding.
WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution. For all Disputes, whether pursued in court or arbitration, you must first give us an opportunity to resolve the Dispute. You must commence this process by mailing written notification to Writable, Inc., Attn: Legal Department, 2625 Middlefield Road, Ste 470, Palo Alto, CA 94306. That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If we do not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out. Notwithstanding the above, you or we may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Dispute Resolution and Arbitration Provision by mailing written notification to Writable, Inc., Attn: Legal Department, 2625 Middlefield Road, Ste 470, Palo Alto, CA 94306. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with us through arbitration. Your decision to opt-out of this Dispute Resolution and Arbitration Provision will have no adverse effect on your relationship with us. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
Arbitration Procedures. If this Dispute Resolution and Arbitration Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or we may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Dispute Resolution and Arbitration Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Dispute Resolution and Arbitration Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because the Service, the App and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award. The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration. You or we may initiate arbitration in either San Francisco, California or the in the Northern District of California.
Payment of Arbitration Fees and Costs. We will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with us as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver. Except as otherwise provided in this Dispute Resolution and Arbitration Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and we specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Dispute Resolution and Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Website can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
Severability. If any clause within this Dispute Resolution and Arbitration Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Dispute Resolution and Arbitration Provision, and the remainder of this Dispute Resolution and Arbitration Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Dispute Resolution and Arbitration Provision will be unenforceable, and the Dispute will be decided by a court.
Continuation. This Dispute Resolution and Arbitration Provision shall survive the termination of these Terms. Notwithstanding any provision in this Agreement to the contrary, we agree that if we make any change to this Dispute Resolution and Arbitration Provision (other than a change to the Notice Address), you may reject any such change and require us to adhere to the language in this Dispute Resolution and Arbitration Provision if a dispute between us arises.
These Terms of Service constitute the entire and exclusive understanding and agreement between Writable and you regarding the Writable Service and Site Content, and these Terms of Service supersede and replace any and all prior oral or written understandings or agreements between Writable and you regarding the Writable Service and Site Content.
You may not assign or transfer these Terms of Service, by operation of law or otherwise, without Writable’s prior written consent. Any attempt by you to assign or transfer these Terms of Service, without such consent, will be null and of no effect. Writable may assign or transfer these Terms of Service, at its sole discretion, without restriction. Subject to the foregoing, these Terms of Service will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms of Service, will be in writing and given by Writable (i) via email (in each case to the address that you provide) or (ii) by posting to the Application or Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
The failure of Writable to enforce any right or provision of these Terms of Service will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Writable. Except as expressly set forth in these Terms of Service, the exercise by either party of any of its remedies under these Terms of Service will be without prejudice to its other remedies under these Terms of Service or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms of Service invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms of Service will remain in full force and effect.
If you have any questions about these Terms of Service, please contact Writable at email@example.com or 2625 Middlefield Road, Ste 470, Palo Alto, CA 94306.