Last Updated June 1, 2020
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RealTechPros/White Clay Technology, LLC (“WCT/RTP”, “Company” or “us”) provides our users with access to technical support, systems administration, device monitoring and related content (collectively, the “Content”). Our Content, and any other products, features, tools materials or other services we make available to you are referred to collectively as the “Services”.
By accessing, browsing and/or using this Site and/or the Services, you consent to receiving electronic communications from the Company.
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN COURTS WITH JURIES, AND LIMITS THE AVAILABLE REMEDIES.
WCT/RTP reserves the right to modify these Terms or to change, modify or otherwise alter any feature of the Service and/or the Site at any time in its sole discretion. You should review these Terms regularly, which are posted on the RealTechPros website at https://realtechpros.com/terms/. If we make material changes to these Terms, we will notify you by posting a notice on the RealTechPros Site. Any modifications to these Terms will become effective immediately; provided, however, for existing members, such modifications shall unless otherwise stated, be effective 30 days after posting. Your rights under this Agreement will terminate automatically without notice from WCT/RTP if you fail to comply with any term(s) of the Agreement.
WCT/RTP grants to you a limited, non-exclusive, non-transferable, unassignable license to access, use the Service and to view the Content solely as provided in these Terms. You must continue to comply with the Terms to continue to access the Service. Please note that your computer(s) must be connected to the Internet to access the Service, and you are responsible for the cost of any Internet connection. Additionally, the Service will only operate on certain hardware and software platforms. Please check the requirements periodically, as WCT/RTP reserves the right to change or cease support of any hardware or software platforms at any time. This license will use the Service in accordance with the Terms while your account is active. Any copying of the Service, the Content, the Site, or any portion thereof is prohibited and will constitute a copyright violation. Violation of these Terms in any manner automatically terminates the license granted to you, and you must cease using the Service and/or the Site.
ACCESS AND USE OF THE SERVICES
(a) In order to access the Service, you will need to use a computer that meets the system and compatibility requirements (“Compatible Device”). Certain features and functionalities of the Service may differ depending on the type of Compatible Device you use to access the Service. In order to access the Service, a high-speed broadband, wireless or similar internet connection from an internet service provider is highly recommended. You are responsible for any costs or fees associated with your internet or mobile service used to access the Service. Your internet service provider or wireless carrier is not a party to this contract and is not responsible for the provision or support of the Service. Downloading, installing or using the Service may be prohibited or restricted by your network provider and the Service may not work with your network provider or device. The Service functionality may vary by device and medium, and we do not accept responsibility for or otherwise warrant the performance of various devices, including the compatibility of devices with the Service. By using the Service, you agree to look solely to the entity that manufactured and/or sold you the device for issues related to the device and its compatibility with the Service.
UNITED STATES SERVICE
We are a company that provides Services in the United States. Access to the Service outside of the United States is not currently offered.
To access the Service, you will be required to create an account (the “Account”) by following the instructions provided on our Site. Information provided by you must be correct, current, and complete and will not violate any law. If WCT/RTP or affiliates believe such information is not correct, current or complete, or that you have otherwise violated this Agreement or any law, we have the right to suspend or terminate your Account, or refuse access to the Service. You are responsible for all activity occurring with your Account, including all uses of your Account by other members of your family or by third parties with or without your knowledge. Please notify us by email using the customer support account: firstname.lastname@example.org if you suspect any unauthorized use of your account. Only the Account holder, and those with permission from the Account holder, may utilize the Account. By allowing others to use your Account, you agree to be responsible for ensuring they comply with these Terms. You are advised to keep your password confidential and to carefully guard the security of your password. WCT/RTP and its affiliates shall not be liable for any loss or damage arising from your use or misuse of your Account, any subaccount(s) or failure to comply with the registration requirements.
Your Service subscription may start with a free trial. If we offer you a free trial, the specific terms of your free trial will be stated in the material describing the particular free trial or during your sign-up. Certain limitations may exist with respect to combining free trials with any other offers. Free trials are open only to new subscribers, and eligibility is in our sole discretion. You will be asked to provide a Payment Method during sign-up for your free trial. Once your free trial ends, we will begin billing your Payment Method for your periodic subscription fees (plus any applicable taxes), unless you cancel prior to the end of your free trial. It is very important to understand that you will not receive a notice from WCT/RTP that your free trial has ended and that payment for your subscription is due and payment will be processed. If you wish to avoid charges to your Payment Method, you must cancel your subscription prior to the end of your free trial period. You may cancel your subscription at any time as described in the Cancellation section of these Terms.
30 DAY SATISFACTION GUARANTEE
WCT/RTP’s has a 30 day satisfaction guarantee. If, for any reason the Service does not meet the needs of the Client, or the Client is not happy with the service, or for any reason, within the first 30 days of service, we will fully refund the Client 100% of the payments received and cancel Services. Notification must be made no later than day 30 of the subscription for a refund to be applied. After the first 30 days, no refunds will be provided, except at the sole discretion of WCT/RTP management. If we make the decision to offer a refund, discount or other consideration to some or all subscribers, the amount and form of such consideration, and the decision to provide them, are at our sole and absolute discretion. Should Client wish to reestablish Services with WCT/RTP in the future, the 30 day satisfaction guarantee will not apply.
SUBSCRIPTIONS AND BILLING
While we may offer Content from time to time for free, we charge a fee to access the Services. You can find the specific details regarding your subscription at any time by logging in on the Site and viewing your account details. By creating an Account on our Site and providing a credit card or other payment method accepted by WCT/RTP (“Payment Method”) for the Service, you are expressly agreeing that we are authorized to charge you a periodic subscription fee on a recurring basis corresponding to the term of your subscription, any other fees for additional services you may purchase, and any applicable taxes in connection with your use of the Service to the Payment Method. If you want to use a different Payment Method than the one you signed up to use during registration, or if there is a change in your credit card validity or expiration date, you may edit your Payment Method information by logging in on our Site to update your Account information. When you provide a Payment Method to access a subscription, including in connection with a free trial offer, our payment processing system may place an authorization hold on your Payment Method as part of the standard practice of verifying the Payment Method. If your Payment Method expires and you do not edit your Payment Method information or cancel your Account, you authorize us to continue billing, and you will remain responsible for any uncollected amounts. As used in these Terms, “billing” shall indicate either a charge or debit, as applicable, against your Payment Method. The subscription fee will be billed at the beginning of your subscription or expiration of your free trial period, if any, whichever is earlier, and on each periodic renewal date thereafter unless and until you cancel your subscription, or the Account or Service is otherwise suspended or discontinued pursuant to these Terms. To see the commencement date for your next renewal period, log in on the Site and view your Account details. We automatically bill your Payment Method on the calendar day corresponding to the commencement of your subscription if you pay annually. If you pay monthly, your subscription will renew on the 7th of each month or the following business day. For subscribers whose subscription starts with a free trial, billing will commence upon the expiration of the free trial. Where applicable, charges may be prorated for any partial month of Service. The interval of time between each recurring payment due date shall correspond to the term of your subscription and be referred to herein as a “Billing Period.” In the event your subscription began on a day not contained in a given month, we bill your Payment Method on the last day of such month. For example, if you became a paying subscriber on January 31, your Payment Method would next be billed on February 28. You acknowledge that the timing of when you are billed and the amount billed each Billing Period may vary, including for example due to free trials and other promotional offers, gift card redemptions, credits applied, changes in your subscription plan, changes in your Payment Method, and changes in applicable taxes, and you authorize us to charge your Payment Method for the corresponding amounts. If we offer you a promotion (e.g., a promotional price) for your subscription, the specific terms of the promotion will be disclosed during your sign-up or in other materials provided to you describing the particular promotion. In the case of promotional pricing, we will begin billing your Payment Method for your subscription at the regular price after your promotion ends unless you cancel prior to the end of your promotion or unless otherwise disclosed in communications made available to you. We reserve the right to change the terms of your subscription, including price, from time to time, effective as of the beginning of your next Billing Period following the date of the change. If we change the subscription fee or other charges for your subscription, we will give you advance notice of these changes. However, we will not be able to notify you of changes in any applicable taxes.
Your subscription will continue in effect on a recurring basis corresponding to the term of your subscription unless and until you cancel your subscription or the Account or Service is otherwise suspended or discontinued according to these Terms. You must cancel your subscription before your next renewal date in order to avoid the next billing. We will bill the periodic subscription fee plus any applicable taxes to the current Payment Method on file for your Account. If you cancel your subscription, cancellation will be effective at the end of the current Billing Period—this means that you will have continued access to your subscription for the remainder of that period, but you will not receive a refund. You will also forfeit any service, referral or redeemed gift card credits upon cancellation. If we make the decision to offer a refund, discount or other consideration to some or all subscribers, the amount and form of such consideration, and the decision to provide them, are at our sole and absolute discretion. The provision of a consideration in one instance does not entitle you to a consideration in the future, nor does it obligate us to provide a consideration in the future, under any circumstance. You can cancel your subscription by logging into your Account and following the instructions on your account Subscription page on the Site. If you pay for the Service through your account with a third party and want to cancel your subscription or manage your billing, you will need to do so through your account with such third party.
We reserve the right to pursue any amounts you fail to pay in connection with the Service. You will remain liable to WCT/RTP for all such amounts and all costs we incur in connection with the collection of these amounts, including, without limitation, collection agency fees, reasonable attorneys’ fees, and arbitration or court costs.
COPYRIGHTS AND TRADEMARKS
(a) The Service, including but not limited to the Site, and all materials incorporated in the Service and the Site (including, but not limited to Content, text, photographs, graphics, video and audio) are protected by copyrights, patents, trademarks, trade secrets or other proprietary rights under United States laws (“Intellectual Property”). Unauthorized copying, editing, or distribution of a copyrighted Service program can result in severe criminal and civil penalties under U.S. laws.
(b) Some of the images incorporated by WCT/RTP on the Service and the Site are also protected as trademarks, trade names and/or Service marks owned by WCT/RTP (“Trademarks”). All other trademarks are the property of their respective owners. Use of the Trademarks or Intellectual Property of WCT/RTP, or the trademarks or intellectual property of any other party is not authorized in any manner other than as incorporated into the Service and the Site.
(c) WCT/RTP respects the intellectual property rights of others and asks users of the Service to do the same. WCT/RTP reserve the right, at any time, to prosecute any violation of copyright or other intellectual property laws to the fullest extent of the law, including both civil and criminal penalties.
COPYRIGHT INFRINGEMENT CLAIMS
If you believe that any Content appearing on the Service has been copied in a way that constitutes copyright infringement under the United States laws, please forward the following information to the Copyright Agent pursuant to the instructions below:
Your name, address, telephone number, and email address;
A description of the copyrighted work that you believe has been infringed;
The exact URL or a description of where the alleged infringing material is located;
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;
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
White Clay Technology, LLC
P.O. Box 5850
Wilmington, DE 19808
Attn: Copyright Agent
Please note that while WCT/RTP seeks to preserve any and all exemptions from liability that may be available under the copyright law, this is not a stipulation that WCT/RTP is a service provider as defined in 17 USC section 512c or elsewhere in the law.
RESTRICTIONS ON USE OF MATERIALS
(a) You agree to use the Service in accordance with all applicable laws, rules, regulations and restrictions on the Services. You may not copy, distribute, transfer, sell, license, publish, modify, create derivative works, transmit, rent, or sublicense or in any way exploit any part of the Service (including the Content), or attempt to interfere with the operation of the Service in any way, except that you may utilize the service for its intended purpose, only as authorized herein. You may not circumvent, remove, alter, deactivate, degrade or thwart any of the security protections in the Service. You may not use any data mining, robots, or similar data gathering and extraction tools on the Service or on any portion of the Service. You may not assign, sublicense, pledge or transfer any of your rights or obligations under this Agreement without WCT/RTP’s prior written consent which may be withheld in WCT/RTP’s sole discretion. In addition, the Site may not be used to construct any kind of database. Decompiling, reverse engineering, disassembling, or otherwise reducing the code used in any software feature on the Service into a readable form in order to examine the construction of such software and/or to copy or create other products based (in whole or in part) on such software or any feature of the Service, WCT/RTP are prohibited.
(b) You are prohibited from using any services or facilities provided in connection with the Service to compromise security or tamper with system resources and/or accounts. The use or distribution of tools designed for compromising security (e.g. password guessing programs, cracking tools or network probing tools) is strictly prohibited.
(c) WCT/RTP, its affiliates or distributors may suspend or terminate your subscription and access to the Service immediately if WCT/RTP determines that you are in violation of these Terms. In such event, you must cease all use of the Service. The suspension or termination of your subscription is in addition to, and not in lieu of, any rights and remedies available to WCT/RTP, its affiliates or distributors under these Terms or under applicable laws.
SERVICE UPDATES AND SOFTWARE
COMMERCIALLY REASONABLE EFFORTS & BEST EFFORT SUPPORT
WCT/RTP will use commercially reasonable efforts to provide the Services. This means that if WCT/RTP is unable to resolve your issue after making commercially reasonable efforts, WCT/RTP has the right and discretion to refuse to take further efforts to do so. However, WCT/RTP will use its best effort to reasonably troubleshoot, diagnose and repair any identified problems. If all commercially reasonable efforts available to WCT/RTP technicians have been exhausted, WCT/RTP technicians will provide guidance to the customer on the recommended next steps to attempt to remedy the problem. WCT/RTP is offering technical support, assistance and guidance to all computer configurations. Some of these computers may be beyond their useful life, be running end of life software, may require major repairs that cannot be effectively treated or resolved remotely, or even require replacement of the computer, or a component of the computer. WCT/RTP cannot guarantee a successful outcome in every situation. Additionally, in some instances, WCT/RTP may have limited information from vendors, manufacturers and developers, and WCT/RTP may not have the ability to obtain the proprietary or other information required to resolve your issue. Some technical problems that you encounter may be the result of software or hardware errors not yet resolved by the vendors, manufacturers or developers of that software or hardware, in which case WCT/RTP may not be able to resolve your issue. In those circumstances, you still are liable for any fees or charges associated with the services.
ADMINISTRATIVE ACCESS REQUIRED
To install, maintain and perform services, WCT/RTP will require administrative level access to any device under management. If this access cannot be provided, or is refused, the level of service capable of being provided by WCT/RTP will be diminished. No credits or refunds will be issued in this case.
RESPONSE SERVICE LEVEL AGREEMENT (SLA)
WCT/RTP believes in being responsive to its customers. To that end, WCT/RTP strives to respond to all new and open customer requests, tickets and chats within one business day, or sooner. WCT/RTP does not offer a resolution timeframe SLA guarantee as technical problems can vary in difficulty. This SLA should not be considered a guarantee and no credits or refunds will be issued due to a delay in responsiveness.
DATA BACKUP ASSURANCE PROTECTIONTM PLAN
Plans may include a service known as the “Data Backup Assurance Protection” Plan (“DBAP Plan”). The DBAP Plan is outlined here. WCT/RTP will work with the customer to test the restoration of a file of their choosing on a quarterly basis. The chosen file must have been included for backup during the last backup event. If the chosen file cannot be successfully restored by WCT/RTP technicians, the customer will be automatically issued a 3-month service credit to be applied towards their next payment due. WCT/RTP requires that the customer schedule the time, each quarter, to perform the file restoration attempt. If the customer does not schedule a time to test during a calendar quarter, then they forfeit this provision for said calendar quarter, until a test is scheduled. There will be a maximum of 1 test per calendar quarter, 4 tests per year. To request a scheduled test restore they must open a support ticket through the customer portal on the Site with 72 hours advance notice.
If you need assistance with the Service, customer must open a support ticket through the customer portal, or by contacting WCT/RTP via the Live Chat tool in the customer portal, or by telephone. If customer experiences difficulty with any of these, they may send an email to email@example.com for further assistance.
DISCLAIMER OF WARRANTIES
YOUR USE OF THE SERVICE AND THE SITE IS AT YOUR OWN RISK. THE SERVICE AND ALL THE MATERIALS, INFORMATION, SOFTWARE, FUNCTIONS AND OTHER CONTENT IN THE SERVICE AND THE SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WCT/RTP, ITS AFFILIATES, SERVICE PROVIDERS, SUPPLIERS AND/OR LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WCT/RTP, ITS AFFILIATES, SERVICE PROVIDERS, SUPPLIERS AND/OR LICENSORS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICE WILL BE AVAILABLE, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT WCT/RTP’S SERVICE OR THE SERVERS THAT MAKE IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WCT/RTP, ITS AFFILIATES, SERVICE PROVIDERS, SUPPLIERS AND/OR LICENSORS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIALS, INFORMATION, SOFTWARE, FUNCTIONS OR OTHER CONTENT IN THE SERVICE OR ANY SITE LINKED TO THE SERVICE FOR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES TO APPLY TO YOU, THE ABOVE EXCLUSIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
LIMITATION OF LIABILITY
WCT/RTP, ITS AFFILIATES, SERVICE PROVIDERS, SUPPLIERS AND/OR LICENSORS DO NOT ACCEPT ANY LIABILITY FOR ANY LOSS OR DAMAGE (DIRECT, INDIRECT, PUNITIVE, ACTUAL, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR OTHERWISE), INCLUDING WITHOUT LIMITATION DAMAGES RELATING TO FAILURE OF PERFORMANCE, LOSS OF USE, LOSS OF DATA, LOSS CAUSED BY A VIRUS, WORM, TROJAN HORSE PROGRAM OR DISABLING CODE, DELAY IN OPERATION OR TRANSMISSION, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, COMMUNICATION FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF A RECORD, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOUR, NEGLIGENCE OR UNDER ANY OTHER CAUSE OF ACTION RESULTING FROM ANY USE OF, OR INABILITY TO USE, THE SERVICE AND/OR THE SITE OR THE MATERIAL, INFORMATION, SOFTWARE, FUNCTIONS OR OTHER CONTENT ON THE SERVICE AND/OR THE SITE, REGARDLESS OF THE BASIS UPON WHICH LIABILITY IS CLAIMED AND EVEN IF WCT/RTP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. WITHOUT LIMITATION, YOU (AND NOT WCT/RTP) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION IN THE EVENT OF ANY SUCH LOSS OR DAMAGE. YOU ASSUME THE RISK IN USING THE SERVICE AND/OR THE SITE AS WELL AS TOTAL RESPONSIBILITY FOR ESTABLISHING SUCH PROCEDURES FOR DATA BACK UP AND VIRUS CHECKING AS YOU CONSIDER NECESSARY. IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE LIMITATION OF LIABILITY TO APPLY TO YOU, THE LIMITATIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
FEEDBACK AND POSTINGS
(a) Portions of the Service and/or the Site may invite you to provide WCT/RTP with feedback. No material you send to WCT/RTP will be treated as confidential, and you are waiving any claims against WCT/RTP regarding the use of such material.
(c) You agree that WCT/RTP is free to use any comments, information, ideas, concepts, reviews, techniques, opinions, statements, images, likenesses, videos or other material contained in any communication you send to Company or post on the Service, and/or through Company’s social media (including but not limited to Twitter, Facebook and LinkedIn) accounts, in any and all media now known or hereafter invented, worldwide and in perpetuity without further compensation, acknowledgement or payment to you for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products/services and creating, modifying or improving the Service. In addition, you agree not to enforce any “moral rights” in such user-provided content, to the extent permitted by applicable law.
SUSPENSION OR TERMINATION OF SERVICE AND TERMINATION OF USE
You agree to indemnify and hold harmless WCT/RTP, its directors, officers, members, parents, subsidiaries, affiliates, partners, agents, and licensors, from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from your breach of any of the Terms, representations or warranties, and/or from your placement or transmission of any content onto the Service’s servers or the Site, and/or from any and all use of your Account in violation of these Terms or the failure to fulfill any obligations relating to your Account incurred by you or any other person using your Account. WCT/RTP reserves the right to take over the exclusive defense of any claim for which it is entitled to indemnification under this Section. In such event, you shall provide WCT/RTP with such cooperation as is reasonably requested by WCT/RTP.
AGREEMENT TO ARBITRATE
(a) This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Delaware, as they are applied to agreements entered into and to be performed entirely within Delaware and without regard to conflict of law principles.
(b) Any dispute, claim or controversy arising out of or relating to the Service or your use of the Service, including the Site, user interface or these Terms must be filed within one year of the relevant events. You waive or give up your right to pursue any dispute, claim or controversy that is not filed within one year, and any right you may have had to pursue that dispute, claim or controversy is permanently barred.
(c) Except as set forth in subparagraph (j) below, WCT/RTP and you agree that any dispute, claim or controversy arising out of or relating to the Service or your use of the Service, including the Site, user interface, or these Terms, shall be determined by binding arbitration instead of courts. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to: (i) claims arising out of or relating to any aspect of the relationship between WCT/RTP and you, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; and (ii) claims that may arise after the termination of this Agreement. You agree that, by entering into this Agreement, you and WCT/RTP are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement.
(d) A party who intends to seek arbitration must first send to the other, by certified mail, return receipt requested, or by other delivery service that provides proof of delivery (e.g., FedEx), a written notice of dispute (“Notice”). The Notice to WCT/RTP should be addressed to: General Counsel, White Clay Technology, LLC, P.O. Box 5850, Wilmington, DE 19808 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought. If WCT/RTP and you do not reach an agreement to resolve the claim within 60 days after the Notice is received, you or WCT/RTP may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by WCT/RTP or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or WCT/RTP is entitled.
(e) If your claim is for less than $7,500, upon written request to the Notice Address prior to commencement of the arbitration, WCT/RTP will advance the arbitration filing fee and arbitrator’s costs by direct payment to the appropriate entity. If the arbitration proceeding is decided in WCT/RTP’ favor, you shall reimburse WCT/RTP for the fees and costs advanced to the extent available in a judicial proceeding. If the arbitration is decided in your favor, which occurs if there is an award to you that is greater than the value of WCT/RTP’ last written settlement offer made before an arbitrator was selected, if any, you will not be required to reimburse WCT/RTP for any of the fees and costs advanced.
(f) The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitrator is bound by the terms of this Agreement, including the Disclaimer of Warranties and Limitation of Liability provisions. The arbitrator shall have the right to award money damages and other appropriate relief, consistent with the terms of this agreement; HOWEVER THE ARBITRATOR SHALL NOT HAVE THE RIGHT TO AWARD INJUNCTIVE RELIEF AGAINST EITHER PARTY OR TO CERTIFY A CLASS ACTION OF ANY KIND.
(g) All issues are for the arbitrator to decide. Unless WCT/RTP and you agree otherwise, any arbitration hearings will take place either in Delaware, or at your option, by video conference during which you shall be able to appear from the county (or parish) of the billing address for your subscription, according to your Account, or any other location of your choosing which has appropriate video conference facilities available. If your claim is for $10,000 or less, there shall be no in person hearing; and WCT/RTP 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 video conference as established by the AAA Rules. If your claim exceeds $10,000, the right to and format of a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
(h) Each party shall be responsible for their own attorney’s fees. Although under some laws WCT/RTP may have a right to an award of attorneys’ fees and expenses if it prevails in an arbitration, WCT/RTP agrees that it will seek such an award only in the event that the substance of your claim or the relief sought has been deemed by the arbitrator to be frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
(i) YOU AND WCT/RTP AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and WCT/RTP agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
(j) Notwithstanding the foregoing, disputes enforcing, protecting, or concerning the validity of any of your or WCT/RTP’ intellectual property rights (or the intellectual property rights of any licensor of Service content are not covered by this agreement to arbitrate.
(k) If the waiver of the right to participate in a class action set forth in subparagraphs (c) and (f) above is found to be illegal or unenforceable for any reason whether by judicial, legislative, or other action, then the entirety of the agreement to arbitrate contained in subparagraphs (c) and (f) is null and void. In that instance, you and WCT/RTP agree to waive your right to a jury trial. You and WCT/RTP further agree that any dispute, claim or controversy arising out of or relating to the Service or your use of the Service, including the Service website, user interface, and these Terms shall be brought in the appropriate state or federal court located in New Castle County, Delaware; and that the parties both irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in New Castle County, Delaware.
(l) References in this paragraph to WCT/RTP and “you” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, licensees, licensors or providers of content, successors, and assigns, as well as all authorized or unauthorized users of the Service under this or prior Agreements. This agreement to arbitrate does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against WCT/RTP on your behalf.
If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable for this Agreement and shall not affect the validity and enforceability of any remaining provisions. This is the entire agreement between the parties relating to the matters contained herein.
NOTICE AND COMMUNICATION