Agreement between Classpop! and client for use of professional services and technology platform


(Last revised on August 11th, 2020)


This Agreement (the “Agreement”) is an agreement by and between Cozymeal, Inc., d/b/a Classpop! with its principal office located at 350 Rhode Island, Suite 240, San Francisco, CA 94103 (“Classpop!”), and you (“Client”). You represent to us that you are lawfully able to enter into contracts and that you have legal authority to bind Client to this Agreement. This Agreement is effective between Client and Classpop! as of the date you indicate acceptance of this Agreement by on the “Agree & Submit” button or completing the registration process on the Platform as a Vendor, whichever comes first (the “Effective Date”). If you do not accept and agree to the following terms and conditions, you may not use the Classpop! Platform as a Vendor.


IMPORTANT: PLEASE BE AWARE THAT SECTION 22 OF THIS AGREEMENT CONTAINS PROVISIONS GOVERNING HOW DISPUTES, CONTROVERSIES OR CLAIMS (A “DISPUTE”) BETWEEN CLIENT AND CLASSPOP! WILL BE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH SHOULD BE REVIEWED CAREFULLY, AS IT WILL REQUIRE, WITH LIMITED EXCEPTIONS, CLIENT TO RESOLVE DISPUTES WITH CLASSPOP! ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION UNLESS CLIENT CHOOSES TO OPT OUT OF THE ARBITRATION PROVISION.

UNLESS CLIENT OPTS OUT OF THE ARBITRATION AGREEMENT: (1) CLIENT WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST CLASSPOP! ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) CLIENT IS WAIVING ITS RIGHTS TO SEEK RELIEF IN A COURT OF LAW AND TRIAL BY JURY. IF CLIENT DOES NOT WISH TO BE SUBJECT TO ARBITRATION, CLIENT MAY OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN SECTION 22 BELOW.

BY VIRTUE OF CLIENT’S ELECTRONIC EXECUTION OF THIS AGREEMENT, CLIENT WILL BE ACKNOWLEDGING THAT CLIENT HAS READ AND UNDERSTOOD ALL OF THE TERMS OF THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO SECTION 22 ) AND HAS TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT BUSINESS DECISION.

 

1.OVERVIEW.

Classpop! has developed a technology platform (“Platform”) that connects professional chefs, florists, artists, computer experts, etc. (each, a “ Vendor”) with users who wish to participate in cooking classes, flower workshops, art classes, computer programming classes (each, a “Guest”). Classpop! does not provide cooking classes, flower workshops, art classes or computer programming classes, does not employ any such professionals, and does not hold itself out as a provider of such professional services, as such services are exclusively rendered by Vendors. Client maintains an independent business as a Vendor and wishes register as a Vendor on the Platform to create Events (as defined below) so that Client can concentrate on practicing Client’s profession instead of spending valuable time and money creating Client’s own website, marketing tools, client-base, and payment processing system.

 

2. PLATFORM SERVICES.

 

Classpop! will provide the following services to Client (the “Platform Services”):

2.1 Site Listing . Classpop! will list Client on the website at www.classpop.com (the “Website”) and Client will be able to create an online profile that may feature Client’s biography, photo, professional experience, skills, dates and details for their upcoming events and photos of previous and planned events. Classpop! may provide additional marketing services to assist Client with Client’s profile.

2.2 Booking Service . Classpop! will provide an online booking system on the Platform, by which Guests can make appointments with Guests and other Clients for Client’s social and educational events (“Events”) through Website.

2.3 Recordkeeping Service : Classpop! shall maintain general appointment and billing records of services provided by Client to Guests who book Events.

2.4 Administrative, Management, & Technology Services . Classpop! will provide miscellaneous administrative and management services to facilitate Client’s business, including the technology and operations necessary to communicate with Client and Guests.

2.5 Billing Service . Classpop! will provide an online, secure billing and payment system through its third party payment processor, to facilitate payment for Client’s Events.

2.6 Customer Service . Classpop! will provide operators to file Guests’ complaints and refund requests. Classpop!’s refund policy is further discussed in Section 8 of this Agreement.

2.7 Venue Scheduling . Classpop! will provide an online scheduling system on the Platform, by which Client can connect with Classpop!’s venue partners (each, a “Venue”).

 

3. EXCLUSIONS FROM PLATFORM SERVICES.



The Platform Services only relate to the business services set forth above. The Platform Services do not include anything related to culinary services. Except as purchased from Classpop!, Client is solely responsible for all of Client’s own tools, equipment, training, automobiles, office space, licensing, and other materials or requirements needed, desired or related to Client’s business. Client is also solely responsible for the payment of insurance premiums, licensing fees, certifications, professional dues or other costs or expenses connected with Client’s business, and acknowledges that Classpop! will not reimburse Client for any such expenses. Classpop! is not, and shall not be, responsible for any liability arising out of the Client Services, including, but not limited to, injuries to the Platform Users from the Client Services. Client is not permitted to represent to Platform Users or others that Client is an employee, contractor, or agent of Classpop!.

 

4. FEES FOR PLATFORM SERVICES

 

Joining the Platform, creating a user profile, and creating Events is free. Classpop! may charge service and payment processing fees in connection with Events that you host as described in your Member Account profile page.

 

5. PLATFORM CONTROL.



As an independent business and Client of Classpop!, Client maintains complete control over Client’s use of the Platform, including:

5.1 Client decides whether to create Events and determines the time and location of Events – Classpop! is not involved;

5.2 Client is permitted to select Client’s attire at Events – no uniforms or other specific clothes are required;

5.3 Client is permitted to maintain Client’s independent business and other clients without using the Platform;

5.4 Client is not restricted from using competitive services or technology platforms;

5.5 Client’s opportunity for profit or loss is dependent on his or her own managerial skill;

5.6 Client is responsible for losses directly or indirectly caused by Client or Client’s agents with respect to Guests and Venues;

5.7 Client solely controls the amount of Client’s investment in Client’s business, including expenses on training and tools; and

5.8 Client exclusively controls Client’s performance at Events, including, but not limited to, possessing the requisite skills, credentials and training to provide the Events that Client creates on the Platform.

 

6. VENUES.



Client and Venues are responsible for coordinating the logistics of Events. As between Classpop! and Client, Client is solely responsible for the personal safety and security of Guests at the Events, inspecting and setting up the Event at the Venue to ensure the Venue is clean, in suitable condition, and has adequate facilities to host the Event, and for cleaning up the Venue after the Event.

 

7. DEFAULT SITE TERMS.

In addition to the Classpop! Terms of Use set forth at https://www.classpop.com/legal/terms-of-use (“Terms of Use”), which Client agreed to when engaging Classpop!, Classpop! maintains the policies stated in this Section 7 (the “Default Site Terms”) for clients as a default on the Platform. Client is permitted to negotiate the Default Site Terms.Notwithstanding, unless other terms are set forth in a writing signed by Client and Classpop!, the Classpop! Default Site Terms to which Client agrees are:

7.1 PAYMENT . As a default, Classpop! will remit to you the amount of commission as initially described in your Member Account profile page, unless otherwise set forth in a writing signed by Client and Classpop!. Classpop!’s third party payment processor will hold funds in escrow until at least 24 hours after the scheduled end time for each Event.

7.2 REFUNDS. As a default, Classpop! maintains a refund and cancellation policy to which Client agrees unless otherwise set forth in a writing signed by Client and Classpop!. Click [here ] to see current cancellation policy . Classpop! may withhold commission payments in the event of a Guest complaint, pending resolution between the Guest and Vendor.

 

8. CLIENT’S BUSINESS AND RESPONSIBILITIES.

Client represents and warrants that Client is self-employed, maintains and operates a culinary business that is separate and independent from Classpop! , holds himself or herself out to the public as independently competent and available to provide the applicable services, and has obtained and/or expects to obtain clients for whom Client performs culinary services through other means other than Classpop! and prior to entering into this Agreement. Client agrees to supply Classpop! with a copy of current insurance any relevant professional certifications or diplomas, and a history of malpractice claims and disciplinary investigations. Client agrees to submit to a background screening conducted by Classpop! for the sole purpose of confirming Client’s credentials and/or references. Client represents that all information provided by Client is accurate and complies with relevant law, and will immediately notify Classpop! of any change in contact, or relevant professional information. Client assumes complete responsibility for all services to and treatment of each Guest and for compliance with all laws, regulations, and professional ethical guidelines and standards pertaining to Client’s services. Client represents that Client is free to enter into this Agreement and perform each of its terms, is not restricted (contractually or otherwise) from entering into and performing this Agreement, and is not subject to any suit, action, claim, arbitration or legal, administrative or other proceeding, or government or professional investigation, pending or threatened or affecting Client’s ability to perform services hereunder. Client will immediately inform Classpop! of any such action.

 

9. Expenses.

Except as otherwise specifically provided herein, Classpop! and Client shall each bear his, her or its own expenses relating to this Agreement and performance thereunder.

10. No Employment Relationship; No Legal or Other Advice.

Neither this Agreement nor Client’s performance under this Agreement shall create an association, partnership, joint venture, or relationship of principal and agent, master and servant, or employer and employee, between Classpop! and Client, or between Classpop! and Client’s employees and agents. Classpop! and Client agree that Client and its employees and agents will receive no Company-sponsored benefits from the Company where benefits include, but are not limited to, paid vacation, sick leave, medical insurance and 401k participation. If Client, its employees, or agents, are reclassified by a state or federal agency or court as Classpop!’s employee, Client, its employees, or agents, as applicable, will become a reclassified employee and will receive no benefits from Classpop! , except those mandated by state or federal law, even if by the terms of Classpop!’s benefit plans or programs of Classpop! in effect at the time of such reclassification, Client, its employees or agents, as applicable, would otherwise be eligible for such benefits. Client acknowledges Client’s sole responsibility for complying with all federal, state and local tax filing and payment obligations that pertain to any remuneration received from Platform Users or as processed by Classpop! in connection with this Agreement, including Client’s sole responsibility for all tax withholding, Social Security, Worker’s Compensation Insurance, FICA, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pensions, and other obligations or benefits. Client acknowledges that Classpop! is not rendering legal, tax, or investment advice, nor is Classpop! a fiduciary of Client. Accordingly, Client acknowledges that Client may seek advice from an appropriate professional to comply with any and all applicable federal, state, and local laws or ordinances.

 

11. Disclaimer of Warranties; Limitation of Liability.


Classpop! provides the Platform on an “as is” and “as available basis” and hereby disclaims all warranties, both express and implied, including any warranty of non-infringement, fitness for a particular purpose or merchantability; and Classpop!’s and its representatives’ collective maximum liability hereunder, regardless of the cause of action (whether in contract, tort, breach of warranty, or otherwise), shall be limited to the aggregate fees paid to Classpop! by Client during the prior calendar year. Classpop! reserves complete and sole discretion with respect to the operation of the Platform, and may, among other things withdraw, suspend or discontinue any functionality or feature. Further, neither party shall be liable for lost profits, lost revenues, lost business, interruption of business, or any indirect, special, incidental, punitive or consequential damages of any kind, regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, even if advised of the possibility of such damages.

 

12. Marks.

The domain name and other names for the Platform and Website, all page headers, graphics, and button icons are service marks, trademarks (whether registered or unregistered), logos, and/or trade dress of Classpop! (collectively, “Classpop! Marks”). Client will not use any of the Classpop! Marks without prior written authorization; except that Client has a revocable and non-transferable license during the term of this Agreement for the sole purpose of identifying and promoting Classpop!’s services under the terms of this Agreement.

 

13. Publicity; media rights.


Classpop! may reference and publicize the fact that Client is a member of the Platform. By using the Website, Client hereby grants Classpop! and its designees a worldwide, non-exclusive, royalty-free, fully paid-up, perpetual right and license to use Client’s name, image, and likeness solely in connection with the Website (including without limitation for the purposes of promoting the Website). Client further acknowledges and agrees that Classpop! has the right to photograph, film and record Events (which may include recordings of Client and food prepared by, flowers arranged by or other professional activities performed by Client), and to broadcast, exhibit and otherwise exploit the photographs, film and recordings of the Events. Without in any way limiting the foregoing, all rights of every kind in and to all photographs, film and recordings made at the Events (including, without limitation, all copyrights) shall be and remain vested in Classpop!, including, without limitation, the right to use and reuse all such photographs, film and recordings in connection with subsequent related and unrelated productions of any kind, as well as in connection with advertisements, promotions, publicity, clips, and other materials, etc.

 

14. Feedback.

Client may from time to time deliver feedback regarding the Platform and/or Platform Services, including without limitation, any ideas, suggestions, documents, and/or proposals for the Platform and/or Platform Services (the “Feedback”). Client hereby assigns to Classpop! all rights, title, and interest in the Feedback and agrees that Classpop! will have the right to use the Feedback and related information in any manner it deems appropriate.

 

15. Confidentiality.


“Confidential Information ” means any non-public information, technical data, or know-how disclosed by Classpop! to Client that is identified at the time of disclosure, in writing or orally, as confidential or that should reasonably be considered confidential. Confidential Information includes information regarding the Platform, processes, designs, services, customers, markets, or pricing. Client will not disclose the Confidential Information to any third parties and will protect the Confidential Information with at least the level of care it takes to protect its own confidential information of similar value, but in no event with less than reasonable care. Client will use the Confidential Information solely for the purpose of fulfilling Client’s obligations under this Agreement and will not use the Confidential Information for Client’s own benefit or the benefit of any third party. Client may share the Confidential Information with its employees, consultants, attorneys, accountants and professional advisors, provided that Client shall be liable for any acts or omissions of all such persons. In the event any law or government entity compels the disclosure of any Confidential Information, Client may disclose such Confidential Information only if Client gives Classpop! prompt notice of Client’s intent to disclose the Confidential Information and reasonably to assist Classpop! to eliminate or minimize such disclosure.

 

16. RELEASE AND ASSUMPTION OF RISK.

Client understands and agrees that by hosting Events, Client will be interacting with members of the general public. Client understands that Classpop! does not, and has no duty or obligation to, conduct any pre-screening or background checks on any members of the Website. Client understands and agrees that the Website merely acts as a platform to permit Website members to connect with each other and organize and attend certain social events, and as such, Client agrees that Classpop! exercises no control and has no authority over Events, or the actions, events and occurrences that take place therein. Client hereby releases Classpop! and its successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from this Agreement, including but not limited to, any interactions with Venues or Guests arising in connection with or as a result of the Agreement. If Client is a California resident, Client hereby waives California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions for any unconscionable commercial practice by Classpop! or for Classpop!’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Platform. CLIENT IS AWARE THAT THERE ARE INHERENT RISKS, HAZARDS AND DANGERS ASSOCIATED WITH AN EVENT AND CLIENT VOLUNTARILY ASSUMES ALL RISK OF LOSS, DAMAGE OR INJURY TO PERSON OR PROPERTY, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, SERIOUS BODILY HARM OR DEATH, WHICH MAY ARISE FROM OR IS RELATED TO CLIENT’S PARTICIPATION IN THE EVENT, WHETHER SUCH RISK IS KNOWN OR UNKNOWN TO CLIENT. CLIENT HAS CAREFULLY READ THIS AGREEMENT AND FULLY UNDERSTANDS ITS CONTENTS. CLIENT UNDERSTANDS THAT CLIENT CANNOT ORGANIZE THE EVENT VIA THE WEBSITE AND USE THE PLATFORM SERVICES UNLESS CLIENT ENTERS INTO THIS AGREEMENT, WHICH CLIENT IS DOING VOLUNTARILY AND OF CLIENT’S OWN FREE WILL.

 

17. INDEMNIFICATION.

Client agrees to indemnify and hold Classpop!, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Classpop! Party” and collectively, the “Classpop! Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Client’s negligence, intentional wrongdoing, or a breach of this Agreement, or alleged negligence, intentional wrongdoing, or breach of this Agreement, of the Client or of persons under Client’s control, (b) any liability of Client or Classpop! for the payment or non-payment of federal, state, or local taxes, or other withholdings, involving Client, (c) your Events, including any violation of any applicable laws, rules, regulations and local ordinances, including without limitation, necessary permits, alcohol licenses, fire codes, and health and safety inspections, (d) Client’s violation of any rights of another party, including any Guests or Venues, or (e) Client’s use of, or inability to use, the Website or Platform. Classpop! shall be entitled to the rights of indemnification provided if, by reason of Client’s providing services under this Agreement, Classpop! is, or is threatened to be made, a party to or participant in any proceeding, including any actual or threatened administrative or civil action or lawsuit, arbitration, or criminal indictment or case. Classpop! reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Client, in which event Client will fully cooperate with Classpop! in asserting any available defenses. This provision does not require Client to indemnify any of the Classpop! Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Platform.

 

18. Disclaimer of Warranties.

Classpop!’s Website acts solely as a Platform to allow people who are interested various fields and industries to connect and meet. Classpop! makes no representation relating to and does not offer any opinion, recommendation, or advice regarding the legality of, tax implications and liabilities of, or any licenses, permits or other consents that may be necessary to host and otherwise provide, any Event. Should Client have any questions related to the legality of or consents necessary to host any Event, Client should consult Client’s own legal counsel.

 

19. Limitation of Liability.

IN NO EVENT WILL CLASSPOP! PARTIES BE LIABLE TO CLIENT FOR ANY FAILURE TO MEET ANY OBJECTIVES OF THIS AGREEMENT OR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE DAMAGES OR INDIRECT DAMAGES OF ANY KIND (INCLUDING DAMAGES FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS, LOST DATA, LOST PROFITS, OR THE LIKE) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF CLASSPOP! HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL CLASSPOP! PARTIES’ AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED $100. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT SERVE TO ENLARGE THIS LIMIT. THIS LIMITATION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY SET FORTH HEREIN. THIS LIMITATION OF LIABILITY IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.

 

20. Termination.

The initial term of this Agreement is for one (1) year from the effective date written above. The Agreement shall automatically renew for successive one (1) year terms if not terminated within 30 days prior to the end of the existing term. Either party may terminate this Agreement by giving ten (10) business days prior written notice thereof. All licenses granted by Classpop! under this Agreement shall be revoked as of the termination of this Agreement; notwithstanding the foregoing, Sections 10-23, and any liabilities or payment obligations that have accrued prior to termination shall survive such termination. Classpop! may also terminate this Agreement immediately with written notice to Client if Client has breached any material term (a “Material Breach”) of the Agreement. A Material Breach of this Agreement shall include, but is not limited to, the Client’s failure to abide by the Terms of Use and violation by Client of applicable state law and/or possession of deficient and/or misrepresented credentials, or Classpop!’s reasonable belief that any of the aforementioned has occurred.

 

21. Governing Law and Venue.

21.1 This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to the choice or conflicts of law provisions of any jurisdiction.


21.2 Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or against Classpop! that are not subject to arbitration as provided in Section 22 shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California.

 

22. Dispute Resolution -- Arbitration.Please read the following arbitration agreement in this section (“Arbitration Provision”) carefully. It requires Client to arbitrate disputes with Classpop! and limits the manner in which Client can seek relief from Classpop!.


22.1 Agreement to Arbitrate . Except as otherwise stated in this Arbitration Provision, any dispute, controversy or claim arising out of or relating to this Agreement, including any question regarding its breach, termination, enforcement, interpretation or validity, or Client’s services shall be finally settled by arbitration. This Arbitration Provision shall apply, without limitation, to all claims that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.

Except as otherwise provided, this Arbitration Provision also applies without limitation to all disputes between Client and Classpop!’s fiduciaries, administrators, affiliates, subsidiaries, parents, and all successors and assigns of any of them, including but not limited to any dispute, controversy or claim arising out of relating to this Agreement or Client’s relationship with Classpop!, including termination of the relationship.

Except as it otherwise provided or required by law, this Arbitration Provision also applies without limitation, and to the fullest extent permitted by law, to disputes regarding any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, termination, harassment and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Classpop! and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), Genetic Information Non-Discrimination Act, and state statutes, if any, addressing the same or similar subject matters, and all other similar federal and state statutory and common law claims.


22.2 Arbitration Rules and Place of Arbitration . The arbitration shall be administered by JAMS (Judicial Arbitration & Mediation Services) pursuant to its Comprehensive Arbitration Rules and Procedures in effect on the date of the arbitration (available at http://jamsadr.com/rules-comprehensive-arbitration/), except as modified herein. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ Streamlined Arbitration Rules and Procedures in effect on the date of arbitration (available at http://www.jamsadr.com/rules-streamlined-arbitration/), except as modified herein. JAMS’ rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. The location of the arbitration proceeding shall be no more than 45 miles from the place where Client last provided Client Services under this Agreement, unless each party to the arbitration agrees in writing otherwise. Client and Classpop! acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding Section 13 with respect to the applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1 – 16).


22.3 Selection of the Arbitrator . There shall be one arbitrator.The Arbitrator shall be selected by mutual agreement of Client and Classpop!. Unless Client and Classpop! mutually agree otherwise, the Arbitrator shall be an attorney licensed to practice in the location where the arbitration proceeding will be conducted or a retired federal or state judicial officer who presided in the jurisdiction where the arbitration will be conducted. If the Parties cannot agree on an Arbitrator within 30 days after the commencement of the arbitration, then the arbitrator shall be selected using the alternate strike method from a list of five (5) neutral arbitrators provided by JAMS. Client will have the option of making the first strike.


22.4 Authority of Arbitrator . Except as otherwise provided herein, all issues shall be decided by an arbitrator and not by a court or judge. The arbitrator shall have the exclusive authority to (a) determine the scope, applicability, enforceability, revocability or validity of this Arbitration Provision or any portion of the Arbitration Provision; and (b) resolve any dispute related to the interpretation, scope, applicability, enforceability, revocability or validity of this Arbitration Provision, including but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator shall not have the authority to consolidate this arbitration with any other arbitration proceeding, to join it with any other cases or parties or to conduct a class-wide arbitration. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. 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 arbitral rules and the Agreement (including the Arbitration Provision). The arbitrator shall issue a written award and statement of decision stating the disposition of each claim and a concise written statement describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is binding on Client and Classpop!, and judgment on any award rendered by the arbitrator may be entered in any court of competent jurisdiction.

This Arbitration Provision applies without limitation to such disputes arising out of, relating to, or in connection with the interpretation or application of this Arbitration Provision, including the enforceability, revocability or validity of the Arbitration Provision or any portion of the Arbitration Provision.


22.5 WAIVER OF CLASS OR CONSOLIDATED ACTIONS (“CLASS ACTION WAIVER”) IMPORTANT –EXCEPT AS PROVIDED IN SECTION 22.7 , CLIENT AND Classpop! AGREE THAT ALL CLAIMS AND DISPUTES WITHIN THIS ARBITRATION PROVISION MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CLIENT CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CLIENT OR USER OF THE PLATFORM . Only individual relief is available. The arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any claim or issue any relief on a class, collective or representative basis. Except as required by applicable law, this subsection also precludes Client from participating in or recovering relief under any current or future class, collective, or representative action brought against Classpop! by someone else.

In any case in which (1) a dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable for a given claim for relief, then the claim shall be severed from the arbitration, and the class, collective, and/or representative action shall be litigated in the State or Federal Courts located in the State of California. All other claims shall be arbitrated and the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration.


22.6 30-Day Right To Opt Out of Arbitration . Arbitration is not a mandatory condition of Client’s contractual relationship with Classpop!. Client has the right to opt of this Arbitration Provision by sending written notice of its decision to legal@classpop.com within 30 days after first becoming subject to this Arbitration Provision. Client notice must include Client’s name and address, the email address in Client’s Member Account profile page, and an unequivocal statement that Client desires to opt out of this Arbitration Provision. If Client opts of this Arbitration Provision, all other parts of the Agreement will continue to apply to Client. Opting out of this Arbitration Provision has no effect on any other arbitration agreements that Client may currently have, or may enter in the future, with Classpop!. If Client does not opt out of this Arbitration Provision within the 30-day period, Client and Classpop! shall be bound by the terms of this Arbitration Provision.

WHETHER TO AGREE TO ARBITRATION IS AN IMPORTANT BUSINESS DECISION. IT IS CLIENT’S DECISION TO MAKE, AND CLIENT SHOULD NOT RELY SOLELY UPON THE INFORMATION PROVIDED IN THIS AGREEMENT AS IT IS NOT INTENDED TO CONTAIN A COMPLETE EXPLANATION OF THE CONSEQUENCES OF ARBITRATION. CLIENT SHOULD TAKE REASONABLE STEPS TO CONDUCT FURTHER RESEARCH AND TO CONSULT WITH OTHERS — INCLUDING BUT NOT LIMITED TO AN ATTORNEY — REGARDING THE CONSEQUENCES OF CLIENT’S DECISION, JUST AS CLIENT WOULD WHEN MAKING ANY OTHER IMPORTANT BUSINESS OR LIFE DECISION. Client understands that Client will not be subject to retaliation if Client exercises Client’s right to assert claims or opt-out of coverage under this Arbitration Provision.


22.7 Limitations on How the Arbitration Provision Applies . The disputes and claims set forth below shall not be subject to arbitration and the requirement to arbitrate set forth in Section 22 of this Agreement shall not apply to:


(a) A representative action brought on behalf of others under the Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq.;


(b) Representative actions for public injunctive relief may be arbitrated on a class basis;


(c) Claims for workers compensation, state disability insurance, and unemployment insurance benefits (provided, however, that any claims commenced by Client against Classpop! challenging worker classification that may affect workers compensation, state disability insurance, and unemployment insurance benefits are subject to mandatory arbitration);


(d) Sexual harassment claims, to the extent applicable law prohibits mandatory arbitration of sexual harassment claims. In the event you intend to bring multiple claims, including a sexual harassment claim that is prohibited from being subject to arbitration under applicable law, the sexual harassment claim may be publicly filed with a court, while any other claims are subject to mandatory arbitration, except as limited by this subsection 22.7;


(e) Regardless of any other terms of this Agreement, nothing prevents Client from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, and nothing in this Agreement or Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision. Nothing in this Arbitration Provision shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration; and


(f) Disputes that may not be subject to a pre-dispute arbitration agreement pursuant to applicable federal law or Executive Order are excluded from the coverage of this Arbitration Provision.


22.8 Starting the Arbitration .


(a) All claims in arbitration are subject to the same statutes of limitation that would apply in court. To start an arbitration, a Party shall file a written demand for arbitration with JAMS and deliver a copy of the demand for arbitration by hand or first class mail to the other Party within the applicable statute of limitations period. Any demand for arbitration made to Classpop! shall be sent to Classpop! at 350 Rhode Island, Suite 240, San Francisco, CA 94103. The demand for arbitration shall include identification of the parties, a copy of this Arbitration Provision, a statement of the legal and factual basis of the claim(s), and a statement of the remedy sought.


(b) The arbitrator shall resolve all disputes regarding the timeliness or propriety of the demand for arbitration. A party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such provisional relief.


(c) In arbitration, the parties shall have the right to conduct adequate civil discovery, bring dispositive motions, and present witnesses and evidence as needed to present their cases and defenses, and any disputes in this regard shall be resolved by the Arbitrator.


22.9 Paying For the Arbitration . If Client initiates arbitration under this Arbitration Provision and are otherwise required to pay a filing fee under the relevant JAMS rules, Classpop! agrees that, unless Client’s claim is for $5,000 or more, Client’s share of the filing and arbitration fees is limited to $50, and that, after Client submits proof of payment of the filing fee to Classpop!, Classpop! will promptly reimburse Client for all but $50 of the filing fee. If, however, the arbitrator finds that either the substance of Client’s claim or the relief sought in the claim 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 such fees will be governed by the JAMS rules. If Classpop! initiates arbitration under this Arbitration Agreement, Classpop! will pay all JAMS filing and arbitration fees. Except as provided in Federal Rule of Civil Procedure 68 or any state equivalents, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the claim(s) were litigated in a court such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.). At the end of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to Client if Client prevails, to the extent authorized by applicable law.


22.10 Full and Complete Agreement Related to Formal Resolution of Disputes; Enforcement of This Agreement . This Arbitration Provision is the full and complete agreement relating to the formal resolution of disputes arising out of this Agreement. Except as stated in Section 22.5, above, in the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable.

 

23. General ProvisionsThis Agreement, and Client’s rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by Client without Classpop!’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Where Classpop! requires that Client provides an e-mail address, Client is responsible for providing Classpop! with Client’s most current e-mail address. In the event that the last e-mail address Client provided to Classpop! is not valid, or for any reason is not capable of delivering to Client any notices required/ permitted by the Agreement, Classpop!’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. Client may give notice to Classpop! at the address listed above. Such notice shall be deemed given when received by Classpop! by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect. This Agreement and the Terms of Use are the final, complete and exclusive agreements of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. In the event of any conflict between this Agreement and the Terms of Use (including the Arbitration Provision in this Agreement), this Agreement will control. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Client and Classpop!.