Highlighter, Inc. Terms of Service
Last updated: 22 January, 2021
These Terms of Service constitute a legally binding agreement between you and Highlighter, Inc. (together with its affiliates, “Highlighter”, “we”, “our” or “us”) governing your use of our products, services and website (the “Site” and collectively with the foregoing, the “Services”).
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICES. These Terms of Service are effective as of the date you first click “I agree” (or similar button or checkbox) or use or access the Services, whichever is earlier.
Any personal data you submit to us or which we collect about you is governed by our Privacy Policy (“Privacy Policy”), available at https://highlighter.com/privacy . You acknowledge that by using the Services, you have reviewed the Privacy Policy. The Privacy Policy is incorporated by reference into these Terms of Service and together form and are hereinafter referred to as this “Agreement.”
PLEASE NOTE: THIS AGREEMENT GOVERNS HOW DISPUTES BETWEEN YOU AND HIGHLIGHTER CAN BE RESOLVED. IT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 11). PLEASE READ CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS.
1. Our Services
Highlighter is an online platform for live, participatory, published video discussions between speakers and audiences.
2. Account, Password, and Security
You must register with Highlighter and create an account to use the Services (an“Account”) and as part of that process you will be requested to provide certain information, including without limitation your name, full address, phone number, email address and age. By using the Services, you agree to provide true, accurate, current and complete information as prompted by the registration process and to maintain and promptly update the Account information to keep it accurate, current and complete. You are the sole authorized user of your Account. You are responsible for maintaining the confidentiality of any log-in, password, and Account number provided by you or given to you by Highlighter for accessing the Services. You are solely and fully responsible for all activities that occur under your password or Account, even if not authorized by you. Highlighter has no control over the use of any user’s Account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or Account, or you suspect any other breach of security, you agree to contact Highlighter immediately.
3. User Generated Content
“User Generated Content” is defined as any content, information, and materials that may be textual, audio, or visual that you provide, submit, upload, publish, or make otherwise available to the Services.
You are solely responsible for User Generated Content, and we act merely as a passive conduit for your online distribution and publication of your User Generated Content. You acknowledge and agree that Highlighter:
  • Is not involved in the creation or development of User Generated Content.
  • Disclaims any responsibility for User Generated Content.
  • Cannot be liable for claims arising out of or relating to User Generated Content.
  • Is not obligated to monitor, review, or remove User Generated Content, but reserves the right to limit or remove User Generated Content on the Services at its sole discretion.
You hereby represent and warrant to Highlighter that your User Generated Content (i) will not be false, inaccurate, incomplete or misleading; (ii) will not infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary right or rights of publicity, personality or privacy; (iii) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, false advertising, anti-spam or privacy); (iv) will not be defamatory, libelous, unlawfully threatening (including without limitation the threat of physical violence or harm), or unlawfully harassing; (v) will not be obscene or contain pornography (including but not limited to child pornography) or be harmful to minors; (vi) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (vii) will not represent you being employed or directly engaged by or affiliated with Highlighter or purport you to act as a representative or agent of Highlighter; and (viii) will not create liability for Highlighter or cause Highlighter to lose (in whole or in part) the services of its ISPs or other suppliers.
By making available any User Generated Content through the Site, you hereby grant to Highlighter 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 User Generated Content on, through or by means of the Site.
We do not claim any ownership rights in any such User Generated Content and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit any such User Generated Content. Subject to the following limitations, User Generated Content shall be owned and controlled as follows:
If you are the host of a session:
  • You shall retain the right to control, use and edit any User Generated Content that you create during any such session.
  • You shall retain the right to control, use and edit the User Generated Content of session participants, provided, however, that you agree not to edit or display any such content in any intentionally misleading manner.
If you are a participant of a session:
  • Subject to the host’s rights to such User Generated Content, you shall retain a right to use all User Generated Content that you create during any such session in which you are a participant.
4. Representations and Warranties
The Services are available only for individuals aged 16 years or older. If you are age 16 or older but under the age of 18, or the legal age of majority where you reside if that jurisdiction has an older age of majority, then you agree to review these Terms of Service with your parent or guardian to make sure that both you and your parent or guardian understand and agree to these Terms of Service. You agree to have your parent or guardian review and accept these Terms of Service on your behalf. If you are a parent or guardian agreeing to these Terms of Service for the benefit of a child over the age of 16, then you agree to and accept full responsibility for that child’s use of the Service, including all financial charges and legal liability that he or she may incur. We may, in our sole discretion, refuse to offer the Services to any person or entity and change the eligibility criteria for using the Service at any time.
You represent and warrant that: (i) you are 16 years of age or older or are at least of the legally required age in the jurisdiction in which you reside, and are otherwise capable of entering into binding contracts, and (ii) you have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that you will so abide.
You further represent and warrant that (i) you have read, understand, and agree to be bound by these Terms of Service and the Privacy Policy in order to access and use the Services, (ii) you will act professionally and responsibly in your interactions with other users, and (iii) when using or accessing the Services, you will act in accordance with any applicable local, state, or federal law or custom and in good faith.
You agree not to engage in any of the following prohibited activities, among others: (i) copying, distributing, or disclosing any part of the Services in any medium other than as allowed by the Services and these Terms of Service; (ii) using any automated system (other than any functionalities of the Services), including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services; (iii) transmitting spam, chain letters, or other unsolicited email or attempting to phish, pharm, pretext, spider, crawl, or scrape; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (v) violating any international, federal, provincial or state regulations, rules, laws, or local ordinances; (vi) conducting any unlawful purposes or soliciting others to perform or participate in any unlawful acts; (vii) uploading invalid data, viruses, worms, or other software agents through the Services; (viii) infringing upon or violating our intellectual property rights or the intellectual property rights of others; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) harassing, insulting, harming, abusing, defaming, abusing, harassing, stalking, threatening, intimidating or otherwise violating the legal rights (such as of privacy and publicity) of any other users or visitors of the Services or staff member of Highlighter; (xi) interfering with or any activity that threatens the performance, security or proper functioning of the Services; (xii) uploading or transmitting viruses or any other type of malicious code; (xiii) attempting to decipher, decompile, disassemble or reverse engineer any of the software or algorithms used to provide the Services; (xiv) bypassing the security features or measures we may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein; (xv) attempting to access unauthorized Accounts or to collect or track the personal information of others; (xvi) using the Services for any purpose or in any manner that infringes the rights of any third party; (xvii) encouraging or enabling any other individual to do any of the foregoing; (xviii) misleadingly editing the content of a video or other media object; (xix) plagiarizing or claiming ownership of the content of a video or other media object; (xx) downloading or copying any site information, including video or other media objects, or summaries for third-party or commercial use; or (xxi) impersonating any other user of the Services.
You hereby warrant and represent that, other than as fully and promptly disclosed to Highlighter as set forth below, you do not have any motivation, status, or interest which Highlighter may reasonably wish to know about in connection with the Services, including without limitation, if you are using or will or intend to use the Services for any journalistic, investigative, or unlawful purpose. You hereby warrant and represent that you will promptly disclose to Highlighter in writing any such motivation, status or interest, whether existing prior to registration or as arises during your use of the Services.
5. Termination and Suspension
Unless otherwise agreed to in writing between you and Highlighter, either party may terminate these Terms of Service for any or no cause, at any time. You may cancel and delete your Account at any time by either using the features on the Services to do so (if applicable and available) or by written notice to support@highlighter.com . After cancellation, you will no longer have access to your Account, your profile or any other information through the Services. The provisions of these Terms of Service which by their intent or meaning intended to survive such termination, including without limitation the provisions relating to disclaimer of warranties, limitations of liability, and indemnification, shall survive the any termination of these Terms of Service and any termination of your use of or subscription to the Services and shall continue to apply indefinitely.
We reserve the right to refuse the Services to anyone for any reason at any time. Highlighter may terminate or limit your right to use the Services in the event that we are investigating or believe that you have breached any provision of this Agreement, by providing you with written or email notice. Such termination or limitation will be effective immediately upon delivery of such notice. If Highlighter terminates or limits your right to use the Services pursuant to this section, you are prohibited from registering and creating a new Account under your name, a fake or borrowed name, or the name of any third party.
Even after your right to use the Services is terminated or limited, this Agreement will remain enforceable against you. Highlighter reserves the right to take appropriate legal action, including but not limited to pursuing arbitration in accordance with Section 11 of these Terms of Service.
Highlighter reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the Services at its sole discretion. Highlighter is not liable to you for any modification or discontinuance of all or any portion of the Services. Highlighter has the right to restrict anyone from completing registration as a user if Highlighter believes such person may threaten the safety and integrity of the Services, or if, in Highlighter’s discretion, such restriction is necessary to address any other reasonable business concern.
Following the termination or cancellation of your Account (as defined below), we reserve the right to delete all your data, including any User Generated Content, in the normal course of operation. Except as otherwise set forth in this Section 5, your data cannot be recovered once your Account is terminated or cancelled.
6. Links to Third-Party Websites
The Services may contain links (such as hyperlinks) to third-party websites. Such links do not constitute endorsement by Highlighter or association with those websites, their content or their operators. Such links (including without limitation external websites that are framed by the Services) are provided as an information service, for reference and convenience only. Highlighter does not control any such websites, and is not responsible for their (i) availability or accuracy, or (ii) content, products, or services. It is your responsibility to evaluate the content and usefulness of the information obtained from other websites. You acknowledge and agree that Highlighter is not involved in the creation or development of third-party websites and disclaims any responsibility for third-party websites, and cannot be liable for claims arising out of or relating to third-party websites. Further, you acknowledge and agree that Highlighter has no obligation to monitor, review, or remove links to third-party websites, but reserves the right to limit or remove links to third-party websites on the Services at its sole discretion.
The use of any website controlled, owned or operated by third parties is governed by the terms and conditions of use and privacy policies for those websites. You access such third-party websites at your own risk. Highlighter expressly disclaims any liability arising in connection with your use and/or viewing of any websites or other material associated with links that may appear on the Services. You hereby agree to hold Highlighter harmless from any liability that may result from the use of links that may appear on the Services.
As part of the functionality of the Services, you may link your Account with online accounts you may have with third-party service providers, such as streaming destination sites or payment providers (each such account, a “Third-Party Account”) by either: (i) providing your Third-Party Account login information through the Services; or (ii) allowing Highlighter to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Highlighter and/or grant Highlighter 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 Highlighter to pay any fees or making Highlighter subject to any usage limitations imposed by such third-party service providers. By granting Highlighter access to any Third-Party Accounts, you understand that (1) Highlighter may access, make available and store (if applicable) any content that you have provided to and stored in your Third-Party Account (the “SNS Content”) so that it is available on and through the Services via your Account, including without limitation any friend lists, and (2) Highlighter may submit and receive additional information to your Third-Party Account to the extent you are notified of this when you link your Account with the Third-Party Account. Unless otherwise specified in these Terms of Service, all SNS Content, if any, shall be considered to be User Generated Content. Depending on the Third-Party Accounts you choose, and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the Services. Please note that if a Third-Party Account or associated service becomes unavailable or Highlighter’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content may no longer be available on and through the Services. You will have the ability to disable the connection between your Account on the Services and your Third-Party Accounts at any time, as set forth below. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY PROVIDERS. Highlighter makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality, or non-infringement, and Highlighter is not responsible for any SNS Content.
7. Intellectual Property Rights
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, trademarks, logos, typefaces and other content (collectively “Proprietary Material”) that users see or read through the Services is owned by Highlighter, excluding User Generated Content, which users hereby grant Highlighter a license to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Highlighter owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws governing copyright, patents, and other proprietary rights. You may not copy, download, use, redesign, reconfigure, or retransmit anything from the Services without Highlighter’s express prior written consent and, if applicable, the holder of the rights to the User Generated Content.
Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of Highlighter and, if applicable, the holder of the rights to the User Generated Content.
The service marks and trademarks of Highlighter, including without limitation Highlighter and Highlighter logos, are service marks owned by Highlighter. Any other trademarks, service marks, logos and/or trade names appearing via the Services are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
Additionally, you may choose to or we may invite you to submit comments, ideas, or feedback about the Services, including without limitation about how to improve our services or our products (“Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited, and without restriction and will not place Highlighter under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Highlighter does not waive any rights to use similar or related Feedback previously known to Highlighter, developed by its employees, or obtained from sources other than you. You acknowledge that all email and other correspondence that you submit to us shall become our sole and exclusive property.
Subject to the terms and conditions hereof, you are hereby granted a limited, nonexclusive, nontransferable, freely revocable, license to access and use the Services. We may terminate this license at any time for any reason or no reason. The Services and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, reports generated by the Services, and copyrights (the “Highlighter Content”), and all Intellectual Property Rights (as defined below) related thereto, are the exclusive property of Highlighter or, as applicable, its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, publicly distribute, publicly transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Services. Use of the Highlighter Content or materials on the Services for any purpose not expressly permitted by this Agreement is strictly prohibited. For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
Your use of the Services and the relating licenses granted hereunder are also conditioned upon your strict adherence to the letter and spirit of the various applicable guidelines and any end user licenses associated with your use of the Site. Highlighter may modify such guidelines in its sole discretion at any time. Highlighter reserves the right to terminate your Account and access to the Services if it determines that you have violated any such applicable guidelines.
8. Confidential Information
You acknowledge that Confidential Information (as defined below) is a valuable, special and unique asset of Highlighter and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than using the Services in accordance with these Terms of Service. You shall promptly notify Highlighter in writing of any circumstances that may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Highlighter upon termination of this Agreement for any reason whatsoever.
The term “Confidential Information” shall mean any and all of Highlighter’s trade secrets, confidential and proprietary information, and all other information and data of Highlighter that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical data, know-how, research, product plans, products, services, customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, strategic and other proprietary and confidential information relating to Highlighter or Highlighter’s business, operations or properties, including information about Highlighter’s staff, users or partners, or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
9. Disclaimer of Warranties
THE SERVICES IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. HIGHLIGHTER MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE SERVICES OR THE CONTENT OF ANY SITES LINKED TO THE SERVICES AND ASSUMES NO LIABILITY OR RESPONSIBILITY IN CONTRACT, WARRANTY OR IN TORT FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, (III) ANY ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; AND (IV) EVENTS BEYOND OUR REASONABLE CONTROL.
UNDER NO CIRCUMSTANCES WILL HIGHLIGHTER AND AFFILIATES OR THEIR CORPORATE PARTNERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, ACTUAL, CONSEQUENTIAL, ECONOMIC, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY HIGHLIGHTER, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES) ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU IN THEIR ENTIRETY.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT HIGHLIGHTER AND AFFILIATES OR THEIR CORPORATE PARTNERS ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE LOWER OF (I) THE TOTAL FEES PAID BY YOU TO HIGHLIGHTER DURING THE SIX MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE OR (II) ONE HUNDRED DOLLARS ($100), TO THE EXTENT PERMITTED BY APPLICABLE LAW.
10. Indemnification
You hereby agree to indemnify, defend, and hold harmless Highlighter and its officers, directors, employees, agents, attorneys, insurers, successors and assigns (the “Indemnified Parties”) from and against any and all Liabilities incurred in connection with (i) your use or inability to use the Services, or (ii) your breach or violation of this Agreement; (iii) your violation of any law, or the rights of any user or third party and (iv) any content submitted by you or using your Account to the Services, including, but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful. You also agree to indemnify the Indemnified Parties for any Liabilities resulting from your use of software robots, spiders, crawlers, or similar data gathering and extraction tools, or any other action you take that imposes an unreasonable burden or loan on our infrastructure. Highlighter reserves the right, in its own sole discretion, to assume the exclusive defense and control at its own expense of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the prior written consent of Highlighter.
11. Dispute Resolution – Arbitration & Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY — IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND HIGHLIGHTER CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND HIGHLIGHTER TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS.
You agree that, in the event any dispute or claim arises out of or relating to your use of the Services, you will contact us at support@highlighter.com and you and Highlighter will attempt in good faith to negotiate a written resolution of the matter directly. You agree that if the matter remains unresolved for 30 days after notification (via certified mail or personal delivery), such matter will be deemed a ‘Dispute’ as defined below. Except for the right to seek injunctive or other equitable relief described under the ‘Binding Arbitration’ section below, should you file any arbitration claims, or any administrative or legal actions without first having attempted to resolve the matter by mediation, then you agree that you will not be entitled to recover attorneys' fees, even if you may have been entitled to them otherwise.
Binding Arbitration. You and Highlighter agree that any dispute, claim or controversy arising out of or relating to this Agreement or to your use of the Services (collectively ‘Disputes’) will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.This means that you and Highlighter both agree to waive the right to a trial by jury.Notwithstanding the foregoing, you may bring a claim against Highlighter in ‘small claims’ court, instead of by arbitration, but only if the claim is eligible under the rules of the small claims court and is brought in an individual, non-class, and non-representative basis, and only for so long as it remains in the small claims court and in an individual, non-class, and non-representative basis.
Class Action Waiver. You and Highlighter agree that any proceedings to resolve Disputes will be conducted on an individual basis and not in a class, consolidated, or representative action. This means that you and Highlighter both agree to waive the right to participate as a plaintiff as a class member in any class action proceeding. Further, unless you and Highlighter agree otherwise in writing, the arbitrator in any Dispute may not consolidate more than one person’s claims and may not preside over any form of class action proceeding.
Arbitration Administration and Rules. The arbitration will be administered by the American Arbitration Association (“AAA’) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the“AAA Rules’) then in effect, except as modified by this “Dispute Resolution’ section. (The AAA Rules are available at http://www.adr.org or by calling the AAA at 1-800-778-7879).
Arbitration Process. A party who desires to initiate the arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of arbitrators with relevant experience. If the parties are unable to agree upon an arbitrator within seven days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with AAA Rules.
Arbitration Location and Procedure. Unless you and Highlighter agree otherwise, the seat of the arbitration shall be in San Francisco, California. If your claim does not exceed USD$10,000, then the arbitration will be conducted solely on the basis of documents you and Highlighter submit to the arbitrator, unless you request a hearing and the arbitrator then determines that a hearing is necessary. If your claim exceeds USD$10,000, your right to a hearing will be determined by AAA Rules. Subject to AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. Hearings may be conducted by telephone or video conference, if requested and agreed to by the parties.
Arbitrator’s Decision and Governing Law. The arbitrator shall apply California law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized by law. The arbitrator will render an award within the timeframe specified in the AAA Rules. Judgment on the arbitration may be entered in any court having jurisdiction thereof. Any award of damages by an arbitrator must be consistent with the “Disclaimers and Limitations of Liability” section above. The arbitrator may award declaratory or injunctive relief in favor of the claimant only to the extent necessary to provide relief warranted by the claimant’s individual claim.
Fees. Each party’s responsibility to pay the arbitration filing, administrative and arbitrator fees will depend on the circumstances of the arbitration and are set forth in the AAA Rules.
12. Governing Law
Except as provided in Section 11 or expressly provided in writing otherwise, this Agreement and your use of the Services will be governed by, and will be construed under, the laws of the State of California, without regard to choice of law principles. This choice of law provision is only intended to specify the use of California law to interpret this Agreement.
13. No Agency; No Employment
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
14. General Provisions
Failure by Highlighter to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the complete and exclusive agreement between you and Highlighter with respect to its subject matter, and supersedes and governs any and all prior agreements or communications. The provisions of this Agreement are intended to be interpreted in a manner which makes them valid, legal, and enforceable. Except for the “Class Action Waiver” in Section 11, in the event any provision is found to be partially or wholly invalid, illegal or unenforceable, (i) such provision shall be modified or restructured to the extent and in the manner necessary to render it valid, legal, and enforceable or, (ii) if such provision cannot be so modified or restructured, it shall be excised from the Agreement without affecting the validity, legality or enforceability of any of the remaining provisions. This Agreement may not be assigned or transferred by you without our prior written approval. We may assign or transfer this Agreement without your consent, including but not limited to assignments: (1) to a parent or subsidiary, (2) to an acquirer of assets, or (3) to any other successor or acquirer. Any assignment in violation of this section shall be null and void. This Agreement will inure to the benefit of Highlighter, its successors and assigns.
15. Changes to this Agreement and the Services
Highlighter reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement, suspend, discontinue, or delete any of the terms and conditions of this Agreement (including these Terms of Service and Privacy Policy) and review, improve, modify or discontinue, temporarily or permanently, the Services or any content or information through the Services at any time, effective with or without prior notice and without any liability to Highlighter. Highlighter will endeavor to notify you of material changes by email, but will not be liable for any failure to do so. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must terminate, and immediately stop using, the Services. Your continued use of the Services following any revision to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes. Highlighter may also impose limits on certain features or restrict your access to part or all of the Services without notice or liability.
16. No Rights of Third Parties
None of the terms of this Agreement are enforceable by any persons who are not a party to this Agreement.
17. Notices and Consent to Receive Notices Electronically
You consent to receive any agreements, notices, disclosures and other communications (collectively, “Notices”) to which this Agreement refers electronically including without limitation by e-mail or by posting Notices on this Site. You agree that all Notices that we provide to you electronically satisfy any legal requirement that such communications be in writing. Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day after it is sent, if sent for next day delivery by a recognized overnight delivery service.
18. Contacting Us
If you have any questions about these Terms of Service or about the Services, please contact us by email at support@highlighter.com or by mail to Highlighter, Inc., 726b Liggett Avenue, San Francisco, California, 94129.