These terms of service constitute a legally binding agreement (the “Agreement”) between you and Onward Development, LLC. (“Enrollstar,” “we,” “us” or “our”) governing your use of the Enrollstar application, website, and technology platform (collectively, the “Enrollstar Platform”).
PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS YOU AND ENROLLSTAR HAVE AGAINST EACH OTHER CAN BE BROUGHT (SEE SECTION 17 BELOW). THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST ENROLLSTAR TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING. AS an organizer, YOU HAVE AN OPPORTUNITY TO OPT OUT OF ARBITRATION WITH RESPECT TO CERTAIN CLAIMS AS PROVIDED IN SECTION 17.
By entering into to this Agreement, you expressly acknowledge that you understand this Agreement (including the dispute resolution and arbitration provisions Section 17) and accept all of its terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE ENROLLSTAR PLATFORM.
The Enrollstar Platform
The Enrollstar Platform provides a marketplace where persons who seek to buy memberships to support certain causes (“Members”) can be matched with organizations (“Organizers”). Organizers and Members are collectively referred to herein as “Users,” and each User shall create a User account that enables access to the Enrollstar Platform. For purposes of this Agreement, the membership services provided by Organizers to Members that are matched through the Platform shall be referred to collectively as the “Services”. Any decision by a User to offer or accept Services is a decision made in such User’s sole discretion. Each membership Service provided by an Organizer to a Member shall constitute a separate agreement between such persons.
Modification to the Agreement
In the event Enrollstar modifies the terms and conditions of this Agreement, such modifications shall be binding on you only upon your acceptance of the modified Agreement. Enrollstar reserves the right to modify any information referenced in the hyperlinks from this Agreement from time to time, and such modifications shall become effective upon posting. Continued use of the Enrollstar Platform or Services after any such changes shall constitute your consent to such changes. Unless material changes are made to the arbitration provisions herein, you agree that modification of this Agreement does not create a renewed opportunity to opt out of arbitration (if applicable).
The Enrollstar Platform may only be used by individuals who can form legally binding contracts under applicable law. The Enrollstar Platform is not available to children (persons under the age of 18) or Users who have had their User account temporarily or permanently deactivated. By becoming a User, you represent and warrant that you are at least 18 years old and that you have the right, authority and capacity to enter into and abide by the terms and conditions of this Agreement. You may not allow other persons to use your User account, and you agree that you are the sole authorized user of your account.
As a Member, you agree to pay the amounts charged for your use of the Enrollstar Platform and Services (“Charges”). Charges include Subsciptions and other applicable fees, surcharges, and taxes as set forth on your market’s Enrollstar Cities page (www.enrollstar.com/cities). Enrollstar has the authority and reserves the right to determine and modify pricing by posting applicable pricing terms to your market’s Enrollstar Cities page. You are responsible for reviewing the applicable Enrollstar Cities page and shall be responsible for all Charges incurred under your User account regardless of your awareness of such Charges or the amounts thereof.
Fees and Other Charges.
- Service Fee. Enrollstar may assess a per-transaction “Service Fee” to support the Enrollstar Platform and related services provided to you by Enrollstar. The amount of the Service Fee may vary but shall be retained by Enrollstar in its entirety.
- Other Charges. Other fee and surcharges may apply to your transaction, including: actual or anticipated credit card fees, state or local fees, event fees as determined by Enrollstar or its marketing partners, and processing fees for split payments. In addition, where required by law Enrollstar will collect applicable taxes. These other charges are not shared with your Organizer unless expressly stated otherwise. See your market’s Enrollstar Cities page for details on other Charges that may apply to your ride.
- Facilitation of Charges. All Charges are facilitated through a third-party payment processing service (e.g., Stripe, Inc., or Braintree, a division of PayPal, Inc.). Enrollstar may replace its third-party payment processing services without notice to you. Charges shall only be made through the Enrollstar Platform.
- Credits and Membership Discounts. You may receive credits (“Enrollstar Credits”) or Membership discounts (“Membership Discounts”) that you can apply toward payment of certain Charges upon completion of a Membership. Enrollstar Credits and Membership Discounts are only valid for use on the Enrollstar Platform, and are not transferable or redeemable for cash except as required by law. Enrollstar Credits and Membership Discounts cannot be combined, and if the cost of your membership exceeds the applicable credit or discount value we will charge your payment method on file for the outstanding cost of the Membership. Membership Discounts only apply to the Plan, not the Service Fee or other charges. If you split payment for a Membership with another User, your Enrollstar Credits or Membership Discount will only apply to your portion of the Charges. Additional restrictions on Enrollstar Credits and Membership Discounts may apply as communicated to you in a relevant promotion or by clicking on the relevant Enrollstar Credit or Membership Discount within the Payments section of the Enrollstar App.
- Credit Card Authorization. Upon addition of a new payment method or each membership request, Enrollstar may seek authorization of your selected payment method to verify the payment method, ensure the membership cost will be covered, and protect against unauthorized behavior. The authorization is not a charge, however, it may reduce your available credit by the authorization amount until your bank’s next processing cycle. Should the amount of our authorization exceed the total funds on deposit in your account, you may be subject to overdraft of NSF charges by the bank issuing your debit or check card. We cannot be held responsible for these charges and are unable to assist you in recovering them from your issuing bank.
If you are an Organizer, you will receive payment for your provision of Services. All Plan payments are subject to a Enrollstar Commission, discussed below. Enrollstar will process all payments due to you through its third party payments processor. You acknowledge and agree that such amounts shall not include any interest and will be net of any amounts that we are required to withhold by law.
- Commission. In exchange for permitting you to offer your Services through the Enrollstar Platform and marketplace as an Organizer, you agree to pay Enrollstar (and permit Enrollstar to retain) a fee based on each transaction in which you provide Services (the “Commission”). The amount of the applicable Commission will be communicated to you in a Commission schedule through the Organizer portal. Enrollstar reserves the right to change the Commission at any time in Enrollstar’s discretion based upon local market factors, and Enrollstar will provide you with notice in the event of such change. Continued use of the Enrollstar Platform after any such change in the Commission calculation shall constitute your consent to such change.
By becoming a User, you agree to receive communications from us, including via e-mail, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from Enrollstar, its affiliated companies and/or Organizers, may include but are not limited to: operational communications concerning your User account or use of the Enrollstar Platform or Services, updates concerning new and existing features on the Enrollstar Platform, communications concerning promotions run by us or our third- party partners, and news concerning Enrollstar and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send.
IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF.
You may be able to create or log-in to your Enrollstar User account through online accounts you may have with third party social networking sites (each such account, an “SNS Account”). By connecting to Enrollstar through an SNS Account, you understand that Enrollstar may access, store, and make available any SNS Account content according to the permission settings of your SNS Account (e.g., friends, mutual friends, contacts or following/followed lists (the “SNS Content”)). You understand that SNS Content may be available on and through the Enrollstar Platform to other Users. Unless otherwise specified in this Agreement, all SNS Content, if any, shall be considered to be your Information.
Promotions and Referral Programs
Enrollstar, at its sole discretion, may make available promotions with different features to any Users or prospective Users. These promotions, unless made to you, shall have no bearing whatsoever on your Agreement or relationship with Enrollstar. Enrollstar reserves the right to withhold or deduct credits or benefits obtained through a promotion the event that Enrollstar determines or believes that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion terms or this Agreement.
As part of your User account, Enrollstar may provide you with or allow you to create a “Enrollstar Code,” a unique alphanumeric code for you to distribute to friends, family and other persons (each a “Referred User”) to become new Enrollstar Members (“Referred Members”) or Organizers (“Referred Organizers”). Enrollstar Codes may only be distributed for promotional purposes and must be given away free of charge. You may not sell, trade, or barter your Enrollstar Code. You are prohibited from advertising Enrollstar Codes, including but not limited to: Google, Facebook, Twitter, Bing and Craigslist. Enrollstar reserves the right to deactivate or invalidate any Enrollstar Code at any time in Enrollstar’s discretion.
From time to time, Enrollstar may offer you with incentives to refer new Users to the Enrollstar community (the “Referral Program”). These incentives may come in the form of Enrollstar Credits, and Enrollstar may set or change the incentive types, amounts, terms, restrictions, and qualification requirements for any incentives in its sole discretion. Your distribution of Enrollstar Codes and participation in the Referral Program is subject to this Agreement and the additional Referral Program rules.
With respect to your use of the Enrollstar Platform and your participation in the Services, you agree that you will not:
- impersonate any person or entity;
- stalk, threaten, or otherwise harass any person;
- violate any law, statute, rule, permit, ordinance or regulation;
- interfere with or disrupt the Services or the Enrollstar Platform or the servers or networks connected to the Enrollstar Platform;
- post Information or interact on the Enrollstar Platform or Services in a manner which is false, inaccurate, misleading (directly or by omission or failure to update information), defamatory, libelous, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, or illegal;
- use the Enrollstar Platform in any way that infringes any third party’s rights, including but not limited to: intellectual property rights, copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
- post, email or otherwise transmit any malicious code, files or programs designed to interrupt, damage, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or surreptitiously intercept or expropriate any system, data or personal information;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Enrollstar Platform;
- “frame” or “mirror” any part of the Enrollstar Platform, without our prior written authorization or use meta tags or code or other devices containing any reference to us in order to direct any person to any other web site for any purpose; or
- modify, adapt, translate, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Enrollstar Platform or any software used on or for the Enrollstar Platform;
- rent, lease, lend, sell, redistribute, license or sublicense the Enrollstar Platform or access to any portion of the Enrollstar Platform;
- use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, scrape, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Enrollstar Platform or its contents;
- link directly or indirectly to any other web sites;
- transfer or sell your User account, password and/or identification to any other party
- discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or
- cause any third party to engage in the restricted activities above.
Organizer Representations, Warranties and Agreements
By providing Services as an Organizer on the Enrollstar Platform, you represent, warrant, and agree that:
- You possess all approvals and authority to provide memberships on behalf of the organization you register to Members in all jurisdictions in which you provide Services.
- You will not make any misrepresentation regarding Enrollstar, the Enrollstar Platform, the Services or your status as an Organizer.
- You will not attempt to defraud Enrollstar or Members on the Enrollstar Platform or in connection with your provision of Services. If we suspect that you have engaged in fraudulent activity we may withhold applicable Plans or other payments for the plan(s) in question.
- You agree that we may obtain information about you, including your criminal records, and you agree to provide any further necessary authorizations to facilitate our access to such records during the term of the Agreement.
- You will pay all applicable federal, state and local taxes based on your provision of Services and any payments received by you.
All intellectual property rights in the Enrollstar Platform shall be owned by Enrollstar absolutely and in their entirety. These rights include and are not limited to database rights, copyright, design rights (whether registered or unregistered), trademarks (whether registered or unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same. All other trademarks, logos, service marks, company or product names set forth in the Enrollstar Platform are the property of their respective owners. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information (“Submissions”) provided by you to us are non-confidential and shall become the sole property of Enrollstar. Enrollstar shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
ENROLLSTAR and other Enrollstar logos, designs, graphics, icons, scripts and service names are registered trademarks, trademarks or trade dress of Enrollstar in the United States and/or other countries (collectively, the “Enrollstar Marks”). If you provide Services as an Organizer, Enrollstar grants to you, during the term of this Agreement, and subject to your compliance with the terms and conditions of this Agreement, a limited, revocable, non-exclusive license to display and use the Enrollstar Marks solely in connection with providing the Services through the Enrollstar Platform (“License”). The License is non-transferable and non-assignable, and you shall not grant to any third party any right, permission, license or sublicense with respect to any of the rights granted hereunder without Enrollstar’s prior written permission, which it may withhold in its sole discretion. The Enrollstar Marks may not be used in any manner that is likely to cause confusion.
You acknowledge that Enrollstar is the owner and licensor of the Enrollstar Marks, including all goodwill associated therewith, and that your use of the Enrollstar Marks will confer no additional interest in or ownership of the Enrollstar Marks in you but rather inures to the benefit of Enrollstar. You agree to use the Enrollstar Marks strictly in accordance with Enrollstar’s Trademark Usage Guidelines, as may be provided to you and revised from time to time, and to immediately cease any use that Enrollstar determines to nonconforming or otherwise unacceptable.
You agree that you will not: (1) create any materials that incorporate the Enrollstar Marks or any derivatives of the Enrollstar Marks other than as expressly approved by Enrollstar in writing; (2) use the Enrollstar Marks in any way that tends to impair their validity as proprietary trademarks, service marks, trade names or trade dress, or use the Enrollstar Marks other than in accordance with the terms, conditions and restrictions herein; (3) take any other action that would jeopardize or impair Enrollstar’s rights as owner of the Enrollstar Marks or the legality and/or enforceability of the Enrollstar Marks, including, without limitation, challenging or opposing Enrollstar’s ownership in the Enrollstar Marks; (4) apply for trademark registration or renewal of trademark registration of any of the Enrollstar Marks, any derivative of the Enrollstar Marks, any combination of the Enrollstar Marks and any other name, or any trademark, service mark, trade name, symbol or word which is similar to the Enrollstar Marks; (5) use the Enrollstar Marks on or in connection with any product, service or activity that is in violation of any law, statute, government regulation or standard.
Violation of any provision of this License may result in immediate termination of the License, in Enrollstar’s sole discretion. If you create any materials bearing the Enrollstar Marks (in violation of this Agreement or otherwise), you agree that upon their creation Enrollstar exclusively owns all right, title and interest in and to such materials, including without limitation any modifications to the Enrollstar Marks or derivative works based on the Enrollstar Marks. You further agree to assign any interest or right you may have in such materials to Enrollstar, and to provide information and execute any documents as reasonably requested by Enrollstar to enable Enrollstar to formalize such assignment.
Enrollstar respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials on the Enrollstar Platform or Services infringe upon your copyrights, please visit refer to the information below on how to make a copyright complaint.
Notice of Copyright Infringement
Enrollstar respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials on the Enrollstar’s Platform infringe upon your copyrights, please send the following information to Enrollstar’s Copyright Agent at Onward Developement, Llc., 726 NW 8th Ave Suite F, Gainesville, FL 32601: (1) a description of the copyrighted work that you claim has been infringed, including specific location on the Enrollstar Platform where the material you claim is infringed is located. Include enough information to allow Enrollstar to locate the material, and explain why you think an infringement has taken place; (2) a description of the location where the original or an authorized copy of the copyrighted work exists – for example, the URL (Internet address) where it is posted or the name of the book in which it has been published; (3) your address, telephone number, and e-mail address; (4) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (5) a statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (6) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
The following disclaimers are made on behalf of Enrollstar, our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, and shareholders.
Enrollstar does not provide membership services, and Enrollstar is not a civic, professional, or non-profit organization. It is up to the Organizer to decide whether or not to offer a membership to a Member contacted through the Enrollstar Platform, and it is up to the Member to decide whether or not to accept a membership from any Organizer contacted through the Enrollstar Platform. We cannot ensure that an Organizer or Member will complete an arranged membership service. We have no control over the quality or safety of the membership that occurs as a result of the Services.
The Enrollstar Platform is provided on an “as is” basis and without any warranty or condition, express, implied or statutory. We do not guarantee and do not promise any specific results from use of the Enrollstar Platform and/or the Services, including the ability to provide or receive Services at any given location or time. We specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.
We do not warrant that your use of the Enrollstar Platform or Services will be accurate, complete, reliable, current, secure, uninterrupted, always available, or error- free, or will meet your requirements, that any defects in the Enrollstar Platform will be corrected, or that the Enrollstar Platform is free of viruses or other harmful components. We disclaim liability for, and no warranty is made with respect to, connectivity and availability of the Enrollstar Platform or Services.
We cannot guarantee that each Member is who he or she claims to be. Please use common sense when using the Enrollstar Platform and Services, including calling the Member or Organizer you to make sure you are buying a membership for the correct organization. Please note that there are also risks of dealing with underage persons or people acting under false pretense, and we do not accept responsibility or liability for any content, communication or other use or access of the Enrollstar Platform by persons under the age of 18 in violation of this Agreement. We encourage you to communicate directly with each potential Organizer or Member prior to engaging in a membership service.
Enrollstar is not responsible for the conduct, whether online or offline, of any User of the Enrollstar Platform or Services. You are solely responsible for your interactions with other Users. We do not procure insurance for, nor are we responsible for, misrepresentations by Organizers or Members. By using the Enrollstar Platform and participating in the Services, you agree to accept such risks and agree that Enrollstar is not responsible for the acts or omissions of Users on the Enrollstar Platform or participating in the Services.
Enrollstar expressly disclaims any liability arising from the unauthorized use of your User account. Should you suspect that any unauthorized party may be using your User account or you suspect any other breach of security, you agree to notify us immediately.
It is possible for others to obtain information about you that you provide, publish or post to or through the Enrollstar Platform (including any profile information you provide), send to other Users, or share during the Services, and to use such information to harass or harm you. We are not responsible for the use of any personal information that you disclose to other Users on the Enrollstar Platform or through the Services. Please carefully select the type of information that you post on the Enrollstar Platform or through the Services or release to others. We disclaim all liability, regardless of the form of action, for the acts or omissions of other Users (including unauthorized users, or “hackers”).
Opinions, advice, statements, offers, or other information or content concerning Enrollstar or made available through the Enrollstar Platform, but not directly by us, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. Under no circumstances will we be responsible for any loss or damage resulting from your reliance on information or other content posted by third parties, whether on the Enrollstar Platform or otherwise. We reserve the right, but we have no obligation, to monitor the materials posted on the Enrollstar Platform and remove any such material that in our sole opinion violates, or is alleged to violate, the law or this agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Users or others.
Location data provided by the Enrollstar Platform is for basic location purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither Enrollstar, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data tracked or displayed by the Enrollstar Platform. Any of your Information, including geolocational data, you upload, provide, or post on the Enrollstar Platform may be accessible to Enrollstar and certain Users of the Enrollstar Platform.
Enrollstar advises you to use the Enrollstar Platform with a data plan with unlimited or very high data usage limits, and Enrollstar shall not responsible or liable for any fees, costs, or overage charges associated with any data plan you use to access the Enrollstar Platform.
This paragraph applies to any version of the Enrollstar Platform that you acquire from the Apple App Store. This Agreement is entered into between you and Enrollstar. Apple, Inc. (“Apple”) is not a party to this Agreement and shall have no obligations with respect to the Enrollstar Platform. Enrollstar, not Apple, is solely responsible for the Enrollstar Platform and the content thereof as set forth hereunder. However, Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement. Upon your acceptance of this Agreement, Apple shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof. This Agreement incorporates by reference Apple’s Licensed Application End User License Agreement, for purposes of which, you are “the end-user.” In the event of a conflict in the terms of the Licensed Application End User License Agreement and this Agreement, the terms of this Agreement shall control.
State and Local Disclosures
Certain jurisdictions require additional disclosures to you. You can view any disclosures required by your local jurisdiction at www.enrollstar.com/terms/disclosures. We will update the disclosures page as jurisdictions add, remove or amend these required disclosures, so please check in regularly for updates.
You will defend, indemnify, and hold Enrollstar including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your use of the Enrollstar Platform and participation in the Services, including: (1) your breach of this Agreement or the documents it incorporates by reference; (2) your violation of any law or the rights of a third party, including, without limitation, Organizers, Members, other motorists, and pedestrians, as a result of your own interaction with such third party; (3) any allegation that any materials that you submit to us or transmit through the Enrollstar Platform or to us infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; (4) your ownership, use or operation of a motor vehicle or passenger vehicle, including your provision of Services as a Organizer; and/or (5) any other activities in connection with the Services. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.
Limitation of Liability
IN NO EVENT WILL ENROLLSTAR, INCLUDING OUR AFFILIATES, SUBSIDIARIES, PARENTS, SUCCESSORS AND ASSIGNS, AND EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SHAREHOLDERS (COLLECTIVELY “ENROLLSTAR” FOR PURPOSES OF THIS SECTION), BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE ENROLLSTAR PLATFORM, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE ENROLLSTAR PLATFORM, THE SERVICES, OR THIS AGREEMENT, HOWEVER ARISING INCLUDING NEGLIGENCE, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE ENROLLSTAR PLATFORM MAY BE USED BY YOU TO REQUEST GOODS, OR OTHER SERVICES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT ENROLLSTAR HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY GOODS OR OTHER SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THERE TERMS. CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
Term and Termination
This Agreement is effective upon your creation of a User account. This Agreement may be terminated: a) by User, without cause, upon seven (7) days’ prior written notice to Enrollstar; or b) by either Party immediately, without notice, upon the other Party’s material breach of this Agreement, including but not limited to any breach of Section 9 or breach of Section 10(a) through (i) of this Agreement. In addition, Enrollstar may terminate this Agreement or deactivate your User account immediately in the event: (1) you no longer qualify to provide Services under applicable law, rule, permit, ordinance or regulation; (2) you fall below Enrollstar’s star rating or cancellation threshold; (3) Enrollstar has the good faith belief that such action is necessary to protect the safety of the Enrollstar community or third parties, provided that in the event of a deactivation pursuant to (1)-(3) above, you will be given notice of the potential or actual deactivation and an opportunity to attempt to cure the issue to Enrollstar’s reasonable satisfaction prior to Enrollstar permanently terminating the Agreement. For all other breaches of this Agreement, you will be provided notice and an opportunity to cure the breach. If the breach is cured in a timely manner and to Enrollstar’s satisfaction, this Agreement will not be permanently terminated. Sections 2, 6, 7 (with respect to the license), 11-12, 14-19, and 21 shall survive any termination or expiration of this Agreement.
DISPUTE RESOLUTION AND ARBITRATION AGREEMENT
- Agreement to Binding Arbitration Between You and Enrollstar.
YOU AND ENROLLSTAR MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, as set forth below. This agreement to arbitrate (“Arbitration Agreement”) is governed by the Federal Arbitration Act and survives after the Agreement terminates or your relationship with Enrollstar ends. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Except as expressly provided below, this Arbitration Agreement applies to all Claims (defined below) between you and Enrollstar, including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders.
Except as expressly provided below, ALL DISPUTES AND CLAIMS BETWEEN US (EACH A “CLAIM” AND COLLECTIVELY, “CLAIMS”) SHALL BE EXCLUSIVELY RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN YOU AND ENROLLSTAR. These Claims include, but are not limited to, any dispute, claim or controversy, whether based on past, present, or future events, arising out of or relating to: this Agreement and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof), the Enrollstar Platform, the Services, any other goods or services made available through the Enrollstar Platform, your relationship with Enrollstar, the threatened or actual suspension, deactivation or termination of your User Account or this Agreement, payments made by you or any payments made or allegedly owed to you, any promotions or offers made by Enrollstar, any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, emotional distress, breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection 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 Enrollstar and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU AND ENROLLSTAR ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT. This Arbitration Agreement is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except for those claims and disputes which by the terms of this Arbitration Agreement are expressly excluded from the requirement to arbitrate.
- Prohibition of Class Actions and Non-Individualized Relief.
YOU UNDERSTAND AND AGREE THAT YOU AND ENROLLSTAR MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS (“CLASS ACTION WAIVER”). YOU UNDERSTAND AND AGREE THAT YOU AND ENROLLSTAR BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. NOTWITHSTANDING THE FOREGOING, THIS SUBSECTION (B) SHALL NOT APPLY TO REPRESENTATIVE PRIVATE ATTORNEYS GENERAL ACT CLAIMS BROUGHT AGAINST ENROLLSTAR, WHICH ARE ADDRESSED SEPARATELY IN SECTION 17(C).
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.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, the class, collective, and/or representative action on such Claims must be litigated in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
- Representative PAGA Waiver.
Notwithstanding any other provision of this Agreement or the Arbitration Agreement, to the fullest extent permitted by law: (1) you and Enrollstar agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under the California PAGA, both you and Enrollstar agree that any such dispute shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “representative PAGA Waiver”). Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement; and (iii) any such representative PAGA or other representative private attorneys general act claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the Parties agree that litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.
- Rules Governing the Arbitration.
Any arbitration conducted pursuant to this Arbitration Agreement shall be administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules that are in effect at the time the arbitration is initiated, as modified by the terms set forth in this Agreement. Copies of these rules can be obtained at the AAA’s website (www.adr.org) (the “AAA Rules”) or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding.
As part of the arbitration, both you and Enrollstar will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim. The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Members or Organizers, but is bound by rulings in prior arbitrations involving the same Member or Organizer to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction.
- Arbitration Fees and Awards.
The payment of filing and arbitration fees will be governed by the relevant AAA Rules subject to the following modifications:
- If you initiate arbitration under this Arbitration Agreement after participating in the optional Negotiation process described in subsection (j) below and are otherwise required to pay a filing fee under the relevant AAA Rules, Enrollstar agrees that, unless your claim is for $5,000 or more, your share of the filing and arbitration fees is limited to $50, and that, after you submit proof of payment of the filing fee to Enrollstar, Enrollstar will promptly reimburse you for all but $50 of the filing fee. If, however, the arbitrator finds that either the substance of your 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 AAA Rules.
- If Enrollstar initiates arbitration under this Arbitration Agreement, Enrollstar will pay all AAA filing and arbitration fees.
- With respect to any Claims brought by Enrollstar against an Organizer, or for Claims brought by an Organizer against Enrollstar that: (A) are based on an alleged employment relationship between Enrollstar and an Organizer; (B) arise out of, or relate to, Enrollstar’s actual deactivation of a Organizer’s User account or a threat by Enrollstar to deactivate an Organizer’s User account; (C) arise out of, or relate to, Enrollstar’s actual termination of a Organizer’s Agreement with Enrollstar under the termination provisions of this Agreement, or a threat by Enrollstar to terminate an Organizer’s Agreement; or (D) arise out of, or relate to, Fares (as defined in this Agreement, including Enrollstar’s commission on the Fares), tips, or average hourly guarantees owed by Enrollstar to Organizers for Services, other than disputes relating to referral bonuses, other Enrollstar promotions, or consumer-type disputes (the subset of Claims in subsections (A)-(D) shall be collectively referred to as “Organizer Claims”), Enrollstar shall pay all costs unique to arbitration (as compared to the costs of adjudicating the same claims before a court), including the regular and customary arbitration fees and expenses (to the extent not paid by Enrollstar pursuant to the fee provisions above). However, if you are the party initiating the Organizer Claim, you shall be responsible for contributing up to an amount equal to the filing fee that would be paid to initiate the claim in the court of general jurisdiction in the state in which you provide Services to Members, unless a lower fee amount would be owed by you pursuant to the AAA Rules, applicable law, or subsection (e)(1) above. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator.
- 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 you if you prevail, to the extent authorized by applicable law.
- Although under some laws Enrollstar may have a right to an award of attorneys’ fees and non-filing fee expenses if it prevails in an arbitration, Enrollstar agrees that it will not seek such an award.
- If the arbitrator issues you an award that is greater than the value of Enrollstar’s last written settlement offer made after you participated in good faith in the optional Negotiation process described in subsection (j) below, then Enrollstar will pay you the amount of the award or U.S. $1,000, whichever is greater.
- Location and Manner of Arbitration.
Unless you and Enrollstar agree otherwise, any arbitration hearings between Enrollstar and a Member will take place in the county of your billing address, and any arbitration hearings between Enrollstar and an Organizer will take place in the county in which the Organizer provides Services. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration. If your Claim is for $10,000 or less, Enrollstar agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as determined by the AAA Rules. If your Claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules.
- Exceptions to Arbitration.
This Arbitration Agreement shall not require arbitration of the following types of claims: (1) small claims actions brought on an individual basis that are within the scope of such small claims court’s jurisdiction; (2) a representative action brought on behalf of others under PAGA or other private attorneys general acts, to the extent the representative PAGA Waiver in Section 17(c) of such action is deemed unenforceable by a court of competent jurisdiction; (3) claims for workers’ compensation, state disability insurance and unemployment insurance benefits; and (4) claims that may not be subject to arbitration as a matter of law.
Nothing in this Arbitration Agreement prevents you 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, or similar local, state or federal agency, and nothing in this Arbitration Agreement 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, however you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint and instead may seek such relief only through arbitration under this Agreement. Nothing in this Agreement or Arbitration Agreement prevents your participation in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision.
In addition to the severability provisions in subsections (c) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
- Organizer Claims in Pending Settlement.
If you are a member of a putative class in a lawsuit against Enrollstar involving Organizer Claims and a Motion for Preliminary Approval of a Settlement has been filed with the court in that lawsuit prior to this Agreement’s effective date (a “Pending Settlement Action”), then this Arbitration Agreement shall not apply to your Organizer Claims in that particular class action. Instead, your Organizer Claims in that Pending Settlement Action shall continue to be governed by the arbitration provisions contained in the applicable Agreement that you accepted prior to this Agreement’s effective date.
- Opting Out of Arbitration for Organizer Claims That Are Not In a Pending Settlement Action.
- As an Organizer, you may opt out of the requirement to arbitrate Organizer Claims defined in Section 17(e)(3) (except as limited by Section 17(i) above) pursuant to the terms of this subsection. If you do not wish to be subject to this Arbitration Agreement with respect to Organizer Claims, you may opt out of arbitration with respect to such Organizer Claims, other than those in a Pending Settlement Action, by notifying Enrollstar in writing of your desire to opt out of arbitration for such Organizer Claims, which writing must be dated, signed and delivered by: (1) electronic mail to firstname.lastname@example.org, or (2) by certified mail, postage prepaid and return receipt requested, or by any nationally recognized delivery service (e.g, UPS, Federal Express, etc.) that is addressed to:General Counsel
Onward Development, C/O Enrollstar.com
726 NW 8th Ave Suite F
- Optional Pre-Arbitration Negotiation Process.Before initiating any arbitration or proceeding, you and Enrollstar may agree to first attempt to negotiate any dispute, claim or controversy between the parties informally for 30 days, unless this time period is mutually extended by you and Enrollstar. A party who intends to seek negotiation under this subsection must first send to the other a written notice of the dispute (“Notice”). The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability or for impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
You agree not to use any technical, financial, strategic and other proprietary and confidential information relating to Enrollstar’s business, operations and properties, including User information (“Confidential Information”) disclosed to you by Enrollstar for your own use or for any purpose other than as contemplated herein. You shall not disclose or permit disclosure of any Confidential Information to third parties. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of Enrollstar in order to prevent it from falling into the public domain. Notwithstanding the above, you shall not have liability to Enrollstar with regard to any Confidential Information which you can prove: was in the public domain at the time it was disclosed by Enrollstar or has entered the public domain through no fault of yours; was known to you, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; is disclosed with the prior written approval of Enrollstar; becomes known to you, without restriction, from a source other than Enrollstar without breach of this Agreement by you and otherwise not in violation of Enrollstar’s rights; or is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that You shall provide prompt notice of such court order or requirement to Enrollstar to enable Enrollstar to seek a protective order or otherwise prevent or restrict such disclosure.
In addition to connecting Members with Organizers, the Enrollstar Platform may enable Users to provide or receive goods or services from other third parties. For example, Users may be able to use the Enrollstar Platform to purchase physical goods, and purchase a digital items (collectively, the “Other Services”). You understand and that the Other Services are subject to the terms and pricing of the third-party provider. If you choose to purchase Other Services through the Enrollstar Platform, you authorize Enrollstar to charge your payment method on file according to the pricing terms set by the third-party provider. You agree that Enrollstar is not responsible and may not be held liable for the Other Services or the actions or omissions of the third- party provider. Such Other Services may not be investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Other Services accessed through the Enrollstar Platform.
Except as provided in Section 17, this Agreement shall be governed by the laws of the State of Florida without regard to choice of law principles. This choice of law provision is only intended to specify the use of Florida law to interpret this Agreement and is not intended to create any other substantive right to non-Floridians to assert claims under Florida law whether by statute, common law, or otherwise. If any provision of this Agreement is or becomes invalid or non-binding, the parties shall remain bound by all other provisions hereof. In that event, the parties shall replace the invalid or non- binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement. You agree that this Agreement and all incorporated agreements may be automatically assigned by Enrollstar, in our sole discretion by providing notice to you. Except as explicitly stated otherwise, any notices to Enrollstar shall be given by certified mail, postage prepaid and return receipt requested to Onward Development, Llc., 726 NW 8th Ave., Suite F, Gainesville, FL 32601. Any notices to you shall be provided to you through the Enrollstar Platform or given to you via the email address or physical you provide to Enrollstar during the registration process. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. A party’s failure to act with respect to a breach by the other party does not constitute a waiver of the party’s right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between you and Enrollstar with respect to the subject matter hereof and supersedes all previous understandings and agreements between the parties, whether oral or written.
If you have any questions regarding the Enrollstar Platform or Services, please contact our Customer Support Team through our Help Center.