Terms of Service
Read Our Terms and Service
BY ACCESSING OR USING THE WEBSITE, YOU ARE ACCEPTING THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). YOU MAY NOT ACCESS OR USE THE WEBSITE OR ACCEPT THE TERMS IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS AND/OR USE THE WEBSITE.
THESE TERMS REQUIRE THE USE OF ARBITRATION (SECTION 10.2) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
We may amend the Terms related to the Services from time to time. Amendments will be effective upon our posting of such updated Terms at this location or the amended policies or supplemental terms on the applicable Service. Your continued access or use of the Services after such posting constitutes your consent to be bound by the Terms, as amended.
1.1 Account Creation. In order to use certain features of the Services, you must register for an account on the Website (“Account“) and provide certain information about yourself as prompted by the account registration form. You represent and warrant that: (a) you are above the age of 18; (b) all required registration information you submit is truthful and accurate; and (c) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Website. Real Grader may suspend or terminate your Account in accordance with Section 8.
1.2 Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to accept responsibility for any and all activities or actions that occur under your Account and/or password, whether your password is with our Service or a third-party service. You agree to immediately notify Real Grader of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Real Grader cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
1.3 Account Types. We currently offer a free Account with limited functionality (“Free Account“), and various fee-bearing Accounts offering feature enhancements (“Paid Account“). The Accounts’ details and pricing are available at https://www.realgrader.com/pricing. You may use a Free Account to try out our services and may upgrade any time to any of our Paid Accounts. You will be automatically enrolled into a Free Account anytime that you fill out an online form on the Website or provide your information during a Real Grader seminar, presentation or similar event. As the holder of a Free Account, you acknowledge and agree that the Services are provided ‘as-is’ without any warranty or guarantee of any kind.
2. ACCESS TO THE SERVICES
2.1 License. Subject to these Terms, Real Grader grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Services solely for your own personal or internal business purposes, in accordance with the Account type you are currently subscribing to.
2.2 Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not attempt to reverse engineer, de-compile, hack, disable, interfere with, disassemble, copy, or disrupt the integrity or the performance of the Services, any third-party use of the Services, or any third-party data contained therein (except to the extent such restrictions are prohibited by applicable law; and (b) you shall not access the Services in order to build a competitive product or service or copy any ideas, features, functions, or graphics of the Services. Unless otherwise indicated, any future release, update, or other addition to functionality of the Services shall be subject to these Terms.
2.3 Modification. Real Grader reserves the right, at any time, to modify, suspend, or discontinue the Services (in whole or in part) with or without notice to you. You agree that Real Grader will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Services or any part thereof.
2.4 No Support or Maintenance. You acknowledge and agree that Real Grader will have no obligation to provide you with any support or maintenance in connection with the Services.
2.5 Ownership. Excluding any Customer Content that you may provide (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Services and its content are owned by Real Grader or its suppliers. Neither these Terms (nor your access to the Services) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 2.1. Real Grader and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.
3. CUSTOMER CONTENT
3.1 Customer Content. “Customer Content” means any and all information and content (including text, images, photos, videos, audio, and documents) that a Customer provides or makes available to Real Grader in connection with the use of the Services. You are solely responsible for your Customer Content. You assume all risks associated with use of your Customer Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your Customer Content that personally identifies you or any third party. You hereby represent and warrant that your Customer Content does not violate our Acceptable Use Policy (defined in Section 3.3). You may not represent or imply to others that your Customer Content is in any way provided, sponsored or endorsed by Real Grader. Because you alone are responsible for your Customer Content, you may expose yourself to liability if, for example, your Customer Content violates the Acceptable Use Policy. Real Grader is not obligated to backup any Customer Content, and your Customer Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your Customer Content if you desire.
3.2 License. You hereby grant (and you represent and warrant that you have the right to grant) to Real Grader an irrevocable, perpetual, nonexclusive, royalty-free and fully paid, worldwide license (with the right to sublicense) to access, use, reproduce, electronically distribute, transmit, perform, format, display, store, archive, and index the Customer Content for the purpose of supporting your use of the Services and providing Services to you. We may also use Customer Content for the purpose of supporting and developing the Services, provided that when doing so, we shall only use Customer Content in an anonymized and aggregated way. Subject only to the limited license expressly granted herein, Customer shall retain all right, title and interest in and to the Customer Content and all intellectual property rights therein. Nothing in this Agreement will confer on Real Grader any right of ownership or interest in the Customer Content or the intellectual property rights there.
3.3 Acceptable Use Policy. The following terms constitute our “Acceptable Use Policy“:
- You agree not to use the Services to collect, upload, transmit, display, or distribute any Customer Content (i) that violates 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) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
- In addition, you agree not to: (i) upload, transmit, or distribute to or through the Services any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Services unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Services to harvest, collect, gather or assemble information or data regarding other Customers, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Services, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Services (or to other computer systems or networks connected to or used together with the Services); or (vi) harass or interfere with any other Customer’s use and enjoyment of the Services; or (vi) use software or automated agents or scripts to produce multiple accounts on the Services, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Website (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
3.4 Enforcement. We reserve the right (but have no obligation) to review any Customer Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include removing or modifying your Customer Content, terminating your Account in accordance with Section 8, and/or reporting you to law enforcement authorities.
3.5 Feedback. If you provide Real Grader with any feedback or suggestions regarding the Services (“Feedback“), you hereby assign to Real Grader all rights in such Feedback and agree that Real Grader shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Real Grader will treat any Feedback you provide to Real Grader as non-confidential and non-proprietary. You agree that you will not submit to Real Grader any information or ideas that you consider to be confidential or proprietary.
4. THIRD-PARTY PRODUCTS AND SERVICES; OTHER CUSTOMERS
4.1 Third-Party Services. You may connect the Services to your accounts on third party services such as Google, Facebook, LinkedIn, Realtor.com, Zillow and Trulia (collectively, “Third-Party Services”) for the purpose of managing your social media presence through the Service. Such Third-Party Services are not under the control of Real Grader, Real Grader does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services and is not responsible for any Third-Party Services. You use all Third-Party Services at your own risk, and should apply a suitable level of caution and discretion in doing so. Any use of Third-Party Services is governed solely by the terms and conditions of such Third-Party Services and any contract entered into, or any transaction completed via any Third-Party Services, is between you and the relevant third party, and not with Real Grader. You shall comply in all respects with all applicable terms of the Third-Party Services that you access or subscribe to in connection with the Services. If at any time any Third-Party Services cease to make their programs available to us on reasonable terms, we may cease to provide such features to you without entitling you to refund, credit, or other compensation.
4.2 Authorization to Access Social Media Information. You acknowledge that the Service can access your account and profile data (the “Social Media Information“) on the Third-Party Services and make changes to your profile data in our sole discretion. You acknowledge and agree that no backup copies of the profile data are kept by Real Grader and that no functionalities may exist to revert the profile data to a prior version other than changing again the profile data to reflect the prior information. You acknowledge and agree that when accessing the Social Media Information, we act as your authorized agent. You may withdraw your authorization at any time by writing us an email at email@example.com. For security reasons, once you have notified us in writing that you wish to withdraw your consent, we strongly suggest that you also change your login information to each Third-Party Service. You understand that the process of creating, updating and troubleshooting the profile data may be lengthy and that the profile data may undergo a transition period when information is not fully filled in or completed. In certain cases, profiles duplication and merging process, profiles removal or data synchronization as well as other technical details will involve communication with the applicable Third-Party Service.
4.3 Other Customers. We make no guarantees regarding the accuracy, currency, suitability, or quality of any Customer Content. Your interactions with other Customers are solely between you and such Customers. You agree that Real Grader will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Customer, we are under no obligation to become involved.
4.4 Release. You hereby release and forever discharge Real Grader (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Services (including any interactions with, or act or omission of, other Customers or any Third-Party Products and Services). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND REAL GRADER (AND OUR SUPPLIERS) EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE. REAL GRADER DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO THE CONTENT MADE AVAILABLE THROUGH THE SERVICES, INCLUDING THE CUSTOMER CONTENT, OR ANY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES. REAL GRADER DOES NOT CONTROL OR VET CUSTOMER CONTENT AND IS NOT RESPONSIBLE FOR WHAT USERS POST, TRANSMIT, OR SHARE ON OR THROUGH THE SERVICES. REAL GRADER IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY THIRD-PARTY SERVICES ASSOCIATED WITH OR UTILIZED IN CONNECTION WITH THE SERVICES, INCLUDING THE FAILURE OF ANY SUCH THIRD-PARTY SERVICES OR SUPPORTED PLATFORMS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You agree to indemnify and hold Real Grader (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Services, (b) your violation of these Terms, (c) your violation of applicable laws or regulations, (d) your Customer Content or (e) Third-Party Services. Real Grader reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Real Grader. Real Grader will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
7. LIMITATION ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL REAL GRADER (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SITE, EVEN IF REAL GRADER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
8. PAYMENTS, CANCELLATIONS.
8.1 Service Fees. A Paid Account can be purchased directly from Real Grader by paying the initial set-up fee (“Initial Set Up Fee“), as applicable, and the applicable recurring subscription fee (“Subscription Fee” and, together with the Initial Set Up Fee, the “Service Fees”) corresponding to the type of Paid Account that you have selected from the page here: https://www.realgrader.com/pricing. Service Fees are billed in advance. You must provide us with a valid credit card to pay the Service Fee. You represent and warrant that: (i) you have the legal right to use any credit card(s) or other payment method(s) in connection with any purchase; and that (ii) the information you supply to us is true, correct and complete.
8.2 Auto-renewal and Cancellation. Your payment to Real Grader of the Subscription Fee will automatically renew at the end of the subscription period for a new subscription period, unless you cancel your Paid Account by sending a written notice to firstname.lastname@example.org at least 30 days before the end of the current subscription period. The cancellation will take effect the day after the last day of the current subscription period, and you will be downgraded to a Free Account. You may cancel your Paid Account at any time. You agree that we may process your credit card or other valid payment method on each renewal term, on the calendar day corresponding to the first day you subscribed to the Paid Account.
8.3 Reactivation of Cancelled Accounts. To reactivate a cancelled Real Grader Account, a $195 reactivation fee will be charged to your account. This includes a 60 minute call with a Digital Identity Expert. To reactivate a cancelled Instacard only, you will be charged a $95 reactivation fee, which includes a review and update of the Instacard by a Digital Identity Expert.
8.4 Changes to Subscription Terms. We may change the price for Paid Accounts from time to time, and will communicate any price changes to you in advance and, if applicable, how to accept those changes. Price changes for Paid Accounts will take effect at the start of the next subscription period following the date of the price change. As permitted by local law, you accept the new price by continuing to use the Services after the price change takes effect. If you do not agree with the price changes, you have the right to reject the change by unsubscribing from the Services prior to the price change going into effect. Please therefore make sure you read any such notification of price changes carefully.
8.5 Refunds and Credits. We will offer to fully refund the Service Fees paid if you cancel the Services and request a refund within 72 hours from your purchase. We will offer to refund 50% of your paid Service Fees if you cancel the Services and request a refund within 60 days from your purchase. No refunds will be granted thereafter, although you may be issued a credit in our sole discretion which must be applied to an eligible Paid Account renewal or upgrade. No refunds will be issued to you if, in our judgment, you have derived a benefit from the Services. To be eligible for a refund or credit, you must provide written notice to email@example.com. This notice must (a) identify your account, (b) request cancellation of the applicable Subscription and (c) request a refund or credit as applicable in accordance with this Section 8.4. The refund will be issued within 15 days from our determination that you are authorized to such refund.
9. TERM AND TERMINATION.
9.1 The Agreements will continue to apply to you until terminated by either you or Real Grader. However, you acknowledge and agree that the perpetual license granted by you in relation to Customer Content, including Feedback, is irrevocable and will therefore continue after expiry or termination of any of the Agreements for any reason.
9.2 We may terminate the Agreements or suspend your access to the Services at any time, including in the event of your actual or suspected unauthorized use of the Services and/or Content, or non-compliance with the Agreements. If you or Real Grader terminate the Agreements, or if we suspend your access to the Services, you agree that we shall have no liability or responsibility to you and we will not refund any amounts that you have already paid, to the fullest extent permitted under applicable law. To learn how to terminate your Account, please contact us through the Customer Service contact form which is available on our Help & Support page. This section will be enforced to the extent permissible by applicable law. Any provision of this Agreement which, either by its terms or to give effect to its meaning, must survive, and such other provisions which expressly, or by their nature, are intended to survive termination shall survive the expiration or termination of this Agreement.
10. COPYRIGHT POLICY.
We respect the intellectual property of others and ask that our Customers do the same. We have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of Customers who are repeat infringers of intellectual property rights, including copyrights. If you believe that any of the copyrighted material, which is directly available via the Services is unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
- your physical or electronic signature;
- identification of the copyrighted work(s) that you claim to have been infringed;
- identification of the material on our services that you claim is infringing and that you request us to remove;
- sufficient information to permit us to locate such material;
- your address, telephone number, and e-mail address;
- a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
Real Grader Inc.
Attn: Copyright Agent
1010 Washington Blvd, 2nd Floor
Stamford CT 06901
11.1 Dispute Resolution. Please read this Arbitration Agreement carefully. It is part of your contract with Real Grader and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
- Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by Real Grader that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and Real Grader, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized Customers or beneficiaries of services or goods provided under the Terms.
- Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Real Grader should be sent to: Real Grader Inc., 1010 Washington Blvd, 2nd Floor, Stamford CT 06901. After the Notice is received, you and Real Grader may attempt to resolve the claim or dispute informally. If you and Real Grader do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
- Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that Real Grader made to you prior to the initiation of arbitration, Real Grader will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
- Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
- Time Limits. If you or Real Grader pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
- Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Real Grader, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Real Grader.
- Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Real Grader in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND REAL GRADER WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
- Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
- Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
- Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Real Grader.
- Small Claims Court. Notwithstanding the foregoing, either you or Real Grader may bring an individual action in small claims court.
- Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
- Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
- Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within New York County, New York, for such purpose.
11.2 Applicable Law. The laws of the State of New York, excluding its choice of law provisions, will govern these Terms and any dispute that arises between you and Real Grader.
11.3 Export. The Website may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Real Grader, or any products utilizing such data, in violation of the United States export laws or regulations.
11.4 Disclosures. Real Grader is located at the address in Section 10. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
11.5 Electronic Communications. The communications between you and Real Grader use electronic means, whether you use the Website or send us emails, or whether Real Grader posts notices on the Website or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Real Grader in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Real Grader provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
Effective Date: July 17, 2019