Terms of Service
Chunker Terms of Service
10 March 2020
Welcome, and thank you for your interest in Chunker, Inc. ("Chunker," "we," "Our," or "us") and our website at www.chunker.com along with our related websites, networks, applications, and other services provided by us (collectively, the "Service"). These Terms of Service are a legally binding contract between you and Chunker regarding your use of the Service.
READ THE FOLLOWING TERMS CAREFULLY.
You understand and agree that, as further described below:
- THE SERVICE IS LICENSED, NOT SOLD TO YOU;
- CHUNKER IS NOT A PARTY TO ANY STORAGE AGREEMENTS (AS DEFINED BELOW);
- CHUNKER IS NOT A PROVIDER OF STORAGE SPACE, A CONTRACTING AGENT, REAL ESTATE BROKER, OR AN INSURER;
- CHUNKER HAS NO CONTROL OVER ANY SPACE OR THE CONDUCT OF LICENSEES, LICENSORS, LICENSEE REPRESENTATIVE, LICENSOR REPRESENTATIVE, OR ANY USERS OF THE SERVICE, AND DISCLAIMS ALL LIABILITY WITH RESPECT TO THE ACTIONS THEREOF TO THE MAXIMUM EXTENT PERMITTED BY LAW; and
- REGISTERED USERS ARE SOLELY RESPONSIBLE FOR COMPLYING WITH ANY LAWS OR REGULATIONS ASSOCIATED WITH ADVERTISING NEGOTIATING, AND ARRANGING FOR THE LICENSE OF THE SPACE, AND ARE SOLELY RESPONSIBLE FOR UNDERSTANDING THE LAWS THAT APPLY TO THEM IN THEIR RESPECTIVE CITIES, STATES AND COUNTRIES.
Arbitration NOTICE. Except for certain kinds of disputes described in Section 18, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND CHUNKER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 18)
Chunker Service Overview. Chunker is a platform that allows you
to advertise, find, and transact for short-term licenses of commercial
For purposes of these Terms:
- "Goods" means any type of items that are stored in a Space;
- "Licensee" means an individual or entity that is the licensee or potential licensee of a Space;
- "Licensee Representative" means the Registered User that is using, or has used the Service in its representation of Licensee;
- "Licensor" means an individual entity that is licensor or potential licensor of a Space;
- "Licensor Representative" means a Registered User who is using, or has used the Service in its representation of Licensor;
- "Listing" means a post on the Service created by the Licensor or the Licensor Representative advertising the Space;
- "Registered User" means any party who has registered for an account on the Service;
- "Space" means the commercial warehouse space that a Licensor or Licensor Representative lists in a Listing as available for the purpose of storing Goods, or for which a Storage Agreement has been transacted as a result of using the Service; and
- "Storage Agreement" means an agreement for the license of a Space between Licensor and Licensee who may or may not be represented by the Licensor Representative and the Licensee Representative as a result of Licensee Representative’s and Licensor Representative’s use of the Service.
- For purposes of these Terms:
- Eligibility. To be eligible for the Service, you must be a licensed real estate broker, landlord, tenant, or any other entity with the legal right to license property or collect a fee based on your role in the License process. If you are a Broker, by agreeing to these Terms, you represent and warrant to us that: (a) you are a licensed real estate broker; (b) you have been invited to use the Service and have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
- Accounts and Registration. To access most features of the Service, including creating or viewing Listings and entering into a Storage Agreement, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, other contact information, or broker licensing information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at [email protected].
- Contact with other Chunker Users. In order to help Licensors and Licensees, or Licensor Representatives or Licensee Representatives more easily facilitate a Storage Agreement, Chunker has made it possible to communicate directly with each other, including the ability to meet in person in order to physically see the warehouse. By using the Service you: a) agree to allow Chunker to monitor all such communication done using the features provided on the platform; b) agree to not engage in any prohibited behavior as defined below; and c) to not use any communication, whether on the platform or otherwise to try to circumvent Chunker in any way.
Listings and Storage Agreements
- Creating a Listing. As a Licensor or Licensor Representative, you may create Listings on the Service. To create a Listing, you will be required to provide certain information about the applicable Space. Such information may include, but is not limited to, the address, location, size, features, and availability of the Space as well as the pricing and rules associated with the storage of Goods in the Space. In connection with creating a Listing, you may also be required to provide us with verification of certain information about you and the Space, such as documentation verifying the right of Licensor to license the Space or that you have sufficient rights to advertise, transact, and arrange for the license of the Space. Licensor Representative acknowledges that Chunker may, in its sole discretion, confirm the information in Listings through any lawful means, including but not limited to visiting the applicable Space. Listings will be made publicly available via the Service. Listings may also be shared with other services or partners, at Chunker’s sole discretion.
- Listing Representations and Warranties. As a Licensor or Licensor Representative, you acknowledge and agree that you alone are responsible for any and all Listings you post to the Service. Accordingly, if you are a Licensor or Licensor Representative, you represent and warrant that: (a) any information contained in a Listing or that you provide to Chunker is and will be kept complete, true, and accurate; (b) you have all rights, licenses, consents and permissions necessary to advertise, negotiate, arrange, or act as broker, on behalf of the Lessor, for the License of the Space in any Listing you post; (c) Lessor has all right and title necessary for licensing the Space; and (d) that licensing the Space and storing Goods in the Space: (i) does not and will not conflict with the rights of any third parties or breach any agreements you or the Lessor of the Space have entered into with any third parties, including, without limitation: current leases for the Space, associations, licenses, brokerage, or rental agreements; and (ii) is and will be in compliance with all applicable laws (such as zoning laws and laws governing licensing of storage properties), tax requirements, rules, and regulations. Chunker assumes no responsibility for compliance with any agreements with or obligations to third parties, applicable laws, rules, or regulations by a Licensor, Licensor Representative or a Licensor Representative’s clients.
- Listing Disclaimer. CHUNKER CANNOT, AND DOES NOT, CONTROL THE CONTENT CONTAINED IN ANY LISTINGS OR THE CONDITION, LEGALITY, OR SUITABILITY OF ANY LISTING. CHUNKER IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL LISTINGS. Chunker reserves the right, at any time and without prior notice, to remove or disable access to any Listing for any reason.
- Licensee Representative. If you are a Licensee Representative, you represent and warrant that you have all rights, licenses, consents and permissions necessary to negotiate, arrange, and act as representative, on behalf of Licensee for the license of a Space.
- Storage Agreements. Chunker is not a party to, and does not partake in the negotiation, arrangement, or transaction of any Storage Agreement. You acknowledge and agree that Chunker will not be responsible for performing the obligations of any Storage Agreement you or your clients enter into, and that Chunker disclaims all liability arising from or related to any Storage Agreements. You understand and agree that Chunker does not act as an insurer, real estate broker, or your contracting agent.
General Payment Terms. Certain features of the Service may
require you to pay fees. All fees are in U.S. Dollars and are
- Service Fees. In consideration of your use of the Service to create Listings and advertise Space on the Service, you are required to pay a fee for each Storage Agreement that is executed for a Space you advertised in a Listing and that results in any way from your use of the Service (the "Service Fee"). The amount of the Service Fee owed for any Storage Agreement will be as set forth on the Service on the date that the Storage Agreement is entered into or as modified by an Enterprise Partnership Agreement. You also hereby agree to pay Chunker the service fee for any type of Storage Agreement entered into with any Licensee or Licensor who was provided to you by the platform, whether or not the transaction is completed and executed on the Service. The fee is expressly limited to any Licensee or Licensor provided by the platform and does not include any other customers obtained by you in the normal course of your business.
- Payment. As part of using the Service you agree to use Chunker’s electronic payment processing system, which is powered by Stripe. This means that all fees due and all payments received will be collected and paid electronically. Payments may be made via credit card or ACH. In both cases, you agree to provide Stripe all information needed to process such payments using the Chunker platform.
- Price. Chunker reserves the right to determine pricing for the Service or the Service Fee. The current Chunker fees for any given License are shown on the Payment Details tab of the Chunker License Wizard. As a Licensor you agree to the fees as shown at the time you send the License for signature and sign it. In addition, as part of using the Service you agree to allow Chunker to take their fees out prior to remitting the remaining amounts to any parties as shown. Both the Licensee and Licensor agree that as part of the electronic payment process to allow Chunker to pay any party listed on the Payment Details tab, including but not limited to: Brokers, Brokerages, Finders, Partners or Contracting Agents. Chunker may charge a fee or change the fees for any feature of the Service, including additional fees or charges.
- Delinquent Accounts. Chunker may suspend or terminate access to the Service for any account for which any amount is due but unpaid.
- Limited License. Subject to your complete and ongoing compliance with these Terms, Chunker grants you, solely for your internal use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service solely in connection with transacting for the License of Spaces.
- License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
- Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service ("Feedback"), then you hereby grant Chunker an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
- Ownership; Proprietary Rights. The Service is owned and operated by Chunker, Inc. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), software, services, and all other elements of the Service ("Materials") provided by Chunker are protected by intellectual property and other laws. All Materials included in the Service are the property of Chunker or its third-party licensors. Except as expressly authorized by Chunker, you may not make use of the Materials. Chunker reserves all rights to the Materials not granted expressly in these Terms.
Third Party Terms
- Third Party Services and Linked Websites. Chunker may provide tools through the Service that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on Chunker with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as "like" or "share" buttons). By using one of these tools, you agree that Chunker may transfer that information to the applicable third-party service. Third-party services are not under Chunker’s control, and, to the fullest extent permitted by law, Chunker is not responsible for any third-party service’s use of your exported information. The Service may also contain links to third party websites. Linked websites are not under Chunker’s control, and Chunker is not responsible for their content or any part of their service.
- Third Party Software. The Service may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components ("Third Party Components"). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third-party licenses or to limit your use of Third Party Components under those third party licenses.
- User Content Generally. Certain features of the Service may permit users to upload content to the Service, including messages, photos, video, images, data, text, and other types of works ("User Content") and to publish User Content on the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service.
- Limited License Grant to Chunker. By providing User Content to or via the Service, you grant Chunker a worldwide, non-exclusive, royalty-free, and fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
- Limited License Grant to Other Users. By providing User Content, or making your user content available via the Service to other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
User Content Representations and Warranties. Chunker
disclaims any and all liability in connection with User Content.
You are solely responsible for your User Content and the
consequences of providing User Content via the Service. By
providing User Content via the Service, you affirm, represent, and
- you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Chunker and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Chunker, the Service, and these Terms;
- your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Chunker to violate any law or regulation; and
- your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
- User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish and will not be in any way responsible or liable for User Content. Chunker may, however, at any time and without prior notice, monitor, record, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Chunker with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Chunker does not permit copyright-infringing activities on the Service.
- Service Providers. By using the Service you acknowledge that Chunker, in its sole discretion, uses and may use additional third-party software providers for functionality such as, but not limited to, email and chat. You hereby acknowledge and agree that Chunker has no control over them, their employees, or their contractors, and as such has no liability over any breaches that may occur to their services. You also hereby agree to hold Chunker harmless for any action of any third-party provider.
Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
- use the Service or advertise or transact for the License of a Space for any illegal purpose or in violation of any order of a court, or any local, state, national, or international law or regulation including, without limitation, any brokerage laws, zoning restriction, or tax regulation;
- harass, threaten, demean, embarrass, or otherwise harm any other user of the Service;
- violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right, privacy right, right of publicity or contractual right;
- interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
- interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
- perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying information submitted to Chunker or posted to the Service;
- use the Service in connection with the distribution of unsolicited commercial email ("spam"), or forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Service or any Materials or User Content to send altered, deceptive or false source-identifying information;
- contact a Registered User using the Service for any purpose other than to communicate in relation to a Listing, Space, or Storage Agreement;
- transact for a Space independent of the Service;
- sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 7) or any right or ability to view, access, or use any Materials; or
- attempt to do any of the acts described in this Section 10 or assist or permit any person in engaging in any of the acts described in this Section 10.
Digital Millennium Copyright Act
DMCA Notification. We comply with the provisions of the
Digital Millennium Copyright Act applicable to Internet service
providers (17 U.S.C. §512, as amended). If you have an
intellectual property rights-related complaint about material
posted on the Service, you may contact our Designated Agent at the
Chunker, Inc.Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must comply includes the following information:
ATTN: Legal Department (Copyright Notification)
1192 Draper Pkwy, Ste 303
Draper, Utah 84020
Email: [email protected]
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of the material that you claim is infringing and where it is located on the Service;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
- a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
- Repeat Infringers. Chunker will promptly terminate the accounts of users that are determined by Chunker to be repeat infringers.
- DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
- Modification of these Terms. We reserve the right to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you may be required to accept the modified Terms in order to continue to use the Service. Modifications requiring your acceptance are effective upon your acceptance of the modified Terms. All other modifications are effective upon publication. Except as expressly permitted in this Section 12, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
Term, Termination and Modification of the Service
- Term. These Terms are effective beginning at the earlier of when you accept the Terms or first access or use the Service, and ending when terminated as described in Section 14.2.
- Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, Chunker may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by cancelling your account or by contacting customer service at [email protected].
- Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Chunker any unpaid amount that was due or that resulted from your use of the Service prior to termination; and (d) all payment obligations accrued or that resulted from your use of the Service prior to termination and Sections 5.2, 5.3, 5.4, 5.5, 7.3, 7, 14.3, 15, 16, 17, 18 and 19 will survive.
- Modification of the Service. Chunker reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Chunker will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
- Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Chunker and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the "Chunker Entities") from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS. CHUNKER DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. CHUNKER DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND CHUNKER DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
CHUNKER MAKES NO WARRANTY AS TO THE CONDUCT OF USERS OF THE SERVICE. YOU UNDERSTAND THAT CHUNKER DOES NOT HAVE ANY OBLIGATION TO VERIFY THE STATEMENTS OF USERS OF THE SERVICE, OR TO REVIEW OR VISIT ANY SPACE. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN, AND CHUNKER WILL HAVE NO RESPONSIBILITY FOR, YOUR COMMUNICATIONS OR INTERACTIONS WITH OTHER USERS OF THE SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR CHUNKER ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE CHUNKER ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE OR YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE EVERY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Chunker does not disclaim any warranty or other right that Chunker is prohibited from disclaiming under applicable law.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE CHUNKER ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY CHUNKER ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 18.4 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE CHUNKER ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO CHUNKER FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Dispute Resolution and Arbitration
- Generally. In the interest of resolving disputes between you and Chunker in the most expedient and cost effective manner, and except as described in Section 18.2, you and Chunker agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND CHUNKER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Exceptions. Despite the provisions of Section 18.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- Arbitrator. Any arbitration between you and Chunker will be settled under the Federal Arbitration Act and administered by the American Arbitration Association ("AAA") under its Consumer Arbitration Rules (collectively, "AAA Rules") as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Chunker. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
- Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail ("Notice of Arbitration"). Chunker’s address for Notice of Arbitration is: Chunker, Inc., 1192 Draper Pkwy, Ste 303 Draper, Utah 84020. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Chunker may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Chunker must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Chunker in settlement of the dispute prior to the award, Chunker will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
- Fees. If you commence arbitration in accordance with these Terms, Chunker will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Salt Lake County, Utah but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Chunker for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions. YOU AND CHUNKER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Chunker agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications to this Arbitration Provision. If Chunker makes any future change to this arbitration provision, other than a change to Chunker’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Chunker’s address for Notice of Arbitration, in which case your account with Chunker will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
- Enforceability If Section 18.6 is found to be unenforceable or if the entirety of this Section 18 is found to be unenforceable, then the entirety of this Section 18 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 19.2 will govern any action arising out of or related to these Terms.
- Governing Law. These Terms are governed by the laws of the State of Utah without regard to conflict of law principles. You and Chunker submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Salt Lake County, Utah for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in Utah, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
- Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the "Additional Terms"). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
- Contact Information. The Service is offered by Chunker, Inc., located at 1192 Draper Pkwy, Ste 303 Draper, Utah 84020. You may contact us by sending correspondence to that address or by emailing us at [email protected].
- Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
- No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
- International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.