Last Modified: January 26, 2022
IMPORTANT: PLEASE READ THESE TERMS AND CONDITIONS OF USE (INCLUDING THE SALES AND REFUND POLICIES BELOW) BEFORE ACCESSING, USING, OR MAKING A PURCHASE OF SERVICES AND PRODUCTS ON WWW.CHECKTHEM.COM, INCLUDING ANY AND ALL SUB-PAGES (“SITE”).
THIS AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES, LIMITATIONS OF LIABILITY, AN EXCLUSIVE REMEDY, A CLASS ACTION WAIVER AND A REQUIREMENT TO ARBITRATE ANY AND ALL CLAIMS THAT WAIVE YOUR RIGHT TO A COURT HEARING OR JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION.
THESE TERMS SET FORTH BELOW FORM AN ESSENTIAL BASIS OF THE AGREEMENT BETWEEN YOU AND CHECK THEM, INC. IT IS STRONGLY RECOMMENDED THAT YOU REVIEW THIS DOCUMENT IN ITS ENTIRETY BEFORE ACCESSING, USING OR MAKING A PURCHASE THROUGH THIS SITE.
Fair Credit Reporting Act (FCRA) Notice
NO CONSUMER REPORTS OFFERED. NOT A CONSUMER REPORTING AGENCY.
CHECK THEM, INC. DOES NOT PROVIDE CONSUMER REPORTS AND IS NOT A CONSUMER REPORTING AGENCY. YOU MAY NOT USE OUR SERVICE OR THE INFORMATION IT PROVIDES TO MAKE DECISIONS ABOUT CONSUMER CREDIT, EMPLOYMENT MATTERS, INSURANCE, TENANT/RENTER SCREENING, OR ANY OTHER PURPOSES THAT WOULD REQUIRE COMPLIANCE UNDER THE FAIR CREDIT REPORTING ACT (THE “FCRA”). MORE INFORMATION ABOUT THE FRCA AND THIS PROHIBITION OF USING INFORMATION PROVIDED ON THIS SITE FOR THE USES MENTIONED ABOVE CAN BE FOUND BELOW IN ARTICLE XIII.
II. REGISTRATION AND ELIGIBILITY
When You are required to open an account to use or access this Site or any of its features or services of the Site, You will also be asked to provide a user name and password. You agree that we may store and use any registration data, including Your user name and password that You provide for use in maintaining Your account. You are entirely responsible for maintaining the confidentiality and security of Your password and account. You may not use the account, username, or password of someone else at any time. You agree to notify Company immediately of any unauthorized use of Your account, user name, or password (collectively, a "User ID"). Company shall not be liable for any loss that You incur as a result of someone else using Your User ID or password, either with or without your knowledge. You may be held liable for any losses incurred by Company, its subsidiaries, entities owned, related to or controlled by Company, officers, directors, employees, consultants, staff, agents, and representatives due to someone else's use of Your account or password. Company reserves the right to refuse registration of, cancel, or terminate a User ID at any time for any reason, in its sole and absolute discretion. You may not sell or transfer your User ID, password, account, or otherwise allow any third party to use Your account for any purpose.
IV. LINKS TO AND FROM THIS SITE
Unless otherwise notified by Company, You are free to link to this Site so long as You make it clear that (a) the linked content belongs to Company; (b) such content is not Your own; and (c) the originating website makes no claim of owning, being related to or owned or controlled by, being under common control with, or sanctioned by, approved by, or endorsed by, Company. As further described in Section VI below, You agree not to reproduce, distribute, display or create derivative works of any part of CheckThem or any information presented to You through the Site, in whole or in part. This prohibition includes unauthorized copying or distribution of any of the content displayed or used on the Site, framing content from the Site, or creating any unauthorized derivative work.
This Site may contain links or references to other websites maintained by third parties over whom we have no control. Such links are provided merely as a convenience. Such third party sites and third party content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by Company, and We are not responsible for any third party sites accessed through this Site or any third party content posted on or available through this Site, including the content, accuracy, advice, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the third party sites or the third party content. Inclusion of, linking to or permitting the use of any third party site or any third party content does not imply approval or endorsement thereof by Company.
V. REPORTING VIOLATIONS OF YOUR COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHTS
We will respond to notices of alleged copyright or other intellectual property infringement that comply with the Digital Millennium Copyright Act (“DMCA”) and other applicable laws. In addition, You agree that, in the event we receive a written demand from a third party alleging that any User Content infringes upon, dilutes, tarnishes or otherwise violates its trademark or trade secret rights, we may in our sole discretion, remove or disable access to such User Content. If You are a copyright owner, or an agent thereof, and believe that any of the content on this Site infringes upon Your copyrights or other intellectual property right, pursuant to the DMCA, You may submit a notification by providing our Copyright Agent (contact information below) with the following information:
You acknowledge that if You fail to comply with the procedures provided in this subsection for reporting a claimed copyright infringement, Your notice may not be valid under the DMCA. See 17 U.S.C. 512(c)(3) for further details. With respect to content that was taken down due to a copyright infringement claim, if You believe that Your content that was removed (or access was disabled to) is not copyright infringing, or that You have authorization from the rightful copyright owner, the copyright owner's agent, or pursuant to law, to post and use the allegedly infringing material in Your posted content, You may send a counter-notice containing the following information to the Copyright Agent:
If a counter-notice is received by the Copyright Agent, Company may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the material provider, member or user, the removed material may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Company’s sole discretion. See 17 U.S.C. 512(g)(3) for further details.
Our designated Copyright Agent (the "Copyright Agent") will receive notifications of claimed infringement and counter-notices at 7850 Ivanhoe Avenue, La Jolla, California 92037 or via email at Legal@CheckThem.com. This e-mail address is intended solely for the receipt of legal "Notifications of Claimed Infringement" under the DMCA.
In an effort to protect the rights of intellectual property owners, We maintain a policy for the termination, in appropriate circumstances, of user accounts of this Site who repeatedly infringe the copyright and other intellectual property rights of others.
VI. INTELLECTUAL PROPERTY RIGHTS
The Site and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by the Company, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
Unless explicitly stated herein, nothing in these Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication, or otherwise.
You must not:
The Company name, the terms and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. Except as expressly authorized by CheckThem, You agree not to use CheckThem’s trademark or any mark confusingly similar to the CheckThem mark. You agree not to reproduce, distribute, display or create derivative works of any part of CheckThem or the Site or any information presented to You through the Site, in whole or in part. This prohibition includes unauthorized copying or distribution of any of the content displayed or used on the Site, framing content from Site or creating any unauthorized derivative work.
All other names, logos, product and service names, designs and slogans on this Site are the trademarks of their respective owners. Nothing contained on this Site should be understood as granting you a license to use any of the trademarks, trade names, trade dress, service marks, taglines, or logos owned or licensed by Company or by any third party. Use of any third-party trademark is meant only to identify the trademark owner and its goods and services, and is not intended to imply any association or sponsorship between the trademark owner and CheckThem.
VIII. COPYRIGHT AND CONTENT
IV. ALLEGED VIOLATIONS (TERMINATION)
X. PROHIBITED USES
Additionally, you agree not to:
You understand that CHECKTHEM’s Products contain sensitive information that is governed by various state and federal laws, and you agree that you are responsible for determining which laws apply based upon your obtaining or use of such information and Content. You further agree that you are solely responsible for complying with all applicable laws.
XI. USER CONTRIBUTIONS
Portions of the Site may contain message boards, chat rooms, personal web pages or profiles, forums, bulletin boards, applications, software and other interactive features (collectively, "Interactive Services") that allow You and other users to post, submit, publish, display or transmit to other users or other persons, whether publically or privately (hereinafter, "post"), appropriate content or materials, including but not limited to, suggestions, comments, ideas, pictures, data, and information, (including from time to time information submitted directly to CheckThem) (collectively, "User Contributions"). The content displayed, including User Contributions, on the Site are submitted and contributed by You and other users, on or through the Site, or by email or in the course of a customer care or support interaction is voluntarily contributed to CheckThem. We are merely hosting and providing access as well as providing tools to post and share content, and We cannot accept any liability with regard to such User Contributions (including with respect to its accuracy). While we cannot preview or monitor the User Contributions, We may delete any content that We believe to be in violation of this Agreement. We reserve the right, but do not have the obligation, to act expeditiously to remove or disable access to any User Contributions that We believe violates this Agreement. We are also sensitive to the copyright and other intellectual property rights of others.
Any User Contribution You post to the Site will be considered non-confidential and non-proprietary. By providing any User Contribution on the Site, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns the right to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any such material for any purpose. To the extent that You wish to have Your User Contribution to remain confidential, to retain rights in Your User Contribution, or wish to be compensated for submission of Your User Contribution, please do not submit it to CheckThem.
You represent and warrant that:
You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and You, not the Company, have fully responsibility for such content, including its legality, reliability, accuracy and appropriateness.
We are not responsible, or liable to any third party, for the content or accuracy of any User Contributions You post or any other user of the Site. CheckThem may audit your use of CheckThem products and services offered through the Site. You agree to cooperate and to provide CheckThem all documentation reasonably requested relating to Your account.
The decision to upload or share User Contributions is Your responsibility and You should only submit or share User Contributions that belongs to you (or where you have obtained all necessary permissions or consents) and that will not violate the rights of others. Be aware that copyright and other intellectual property rights will normally belong to the creator of the material in question and You should not reproduce or submit anything without permission of the owner. By submitting User Contributions, You represent and warrant that You have the right to do so or that you have obtained any necessary third party consents (e.g., under privacy or intellectual property laws). You agree that you will be liable to us and indemnify us for any loss or damage we suffer as a result of your breach of the foregoing warranties. Upon our request You agree to furnish CheckThem with any documentation, substantiation and releases necessary and reasonably required to verify and substantiate your compliance with this provision.
By submitting User Contributions, You grant CheckThem a perpetual, transferable, sublicenseable, worldwide, royalty-free, license to host, store, copy, publish, distribute, provide access to create derivative works of, and otherwise use User Contributions submitted by You, to the extent and in the form or context We deem appropriate on or through any media or medium and with any technology or devices now known or hereafter developed or discovered. You hereby release CheckThem (including their subsidiaries, affiliates and assigns) from any and all claims, liens, demands, actions or suits in connection with the User Contributions You submit, including, without limitation, any and all liability for any use or nonuse of Your User Contributions, claims for defamation, invasion of privacy, right of publicity, emotional distress or economic loss. This license continues even if You stop using the Site or CheckThem products or services. CheckThem may scan, image and/or create an index from the User Contributions You submit. In this situation, you grant CheckThem a license to the User Contributions as described above and CheckThem will own the digital version of documents created by CheckThem as well as any indexed information that CheckThem creates. Except for the rights granted in this Agreement, CheckThem acquires no title or ownership rights in or to any User Contributions You submit and nothing in this Agreement conveys any ownership rights in such User Contributions. The licenses granted continue for the maximum time permitted by applicable law, even if You stop using the Site.
You acknowledge and agree that CheckThem may preserve any User Contributions and may disclose any User Contributions (including its origin) if CheckThem believes that it is required to do so by law or that such preservation or disclosure is reasonably necessary to: (a) comply with legal process or governmental requests; (b) enforce the Agreement; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or safety of CheckThem, other users, or the public.
You agree that, in the event you conduct a search for yourself on the Websites or you authorize another person to conduct a search for you on the Websites, you have expressly consented to the use and display of information about you (including, without limitation, your name and other attributes of your identity) on the Websites for any and all commercial and non-commercial purposes.
XII. CONTENT STANDARDS
These content standards apply to any and all User Contributions and use of Interactive Services. User Contributions must in their entirety comply with all applicable federal, state, local and international laws and regulations. Without limiting the foregoing, User Contributions must not:
You will not use CheckThem’s Site, products or services for the purposes prohibited in this Agreement. Any misuse of CheckThem’s Site, products or services will be the basis for immediate suspension of services, termination of Your account or membership, and/or legal action.
XIII. FAIR CREDIT REPORTING ACT (FCRA) NOTICE
CHECKTHEM IS NOT A CREDIT REPORTING AGENCY ("CRA") FOR PURPOSES OF THE FAIR CREDIT REPORTING ACT ("FCRA"), 15 USC §§ 1681 et seq. AS SUCH, THE ADDITIONAL PROTECTIONS AFFORDED TO CONSUMERS, AND OBLIGATIONS PLACED UPON CREDIT REPORTING AGENCIES, ARE NOT CONTEMPLATED BY, NOR CONTAINED WITHIN, THESE TERMS.
You may not use any information obtained from CheckThem in connection with its Services to determine a prospective candidate's suitability for:
The information provided by CheckThem in connection with the use of the Site and its products and services has not been collected in whole or in part for the purpose of furnishing consumer reports, as defined in the FCRA. According to applicable law, You are not permitted to use any of this information as a factor in:
You also agree that you shall not use any of the information you receive in connection with CheckThem’s Site, products and services to take any "adverse action," as that term is defined in the FCRA; You have appropriate knowledge of the FCRA; and, if necessary, You will consult with an attorney to ensure compliance with these Terms.
This prohibition against using any information offered by CheckThem is a material part of the bargain in allowing You to use and access the Site. You agree to indemnify CheckThem pursuant to Article XIX below for any violation of the Terms, including any violation of the FCRA.
XIV. RELIANCE ON INFORMATION POSTED
The information presented on or through the Site is made available solely for general information purposes. We do not, and cannot, warrant the accuracy, completeness or usefulness of this information. Any reliance You place on such information is strictly at Your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by You or any other visitor to the Site, or by anyone who may be informed of any of its contents. This Site includes content provided by third parties, including materials provided by other users, bloggers and third-party licensors, syndicators, aggregators and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to You or any third party, for the content or accuracy of any materials provided by any third parties.
XV. ONLINE PURCHASES AND OTHER TERMS AND CONDITIONS
Access to some of the Services requires the payment of a fee (the “Paid Services”). If You elect to purchase Paid Services, You agree to our storage of Your payment information and understand that your Paid Services are personal to You, such that you may not transfer or make available Your account name (and/or registration number) and password to others. Any distribution by You of Your account name and password may result in cancellation of Your Paid Services without refund and/or additional charges based on unauthorized use. We reserve the right, from time to time, to change the Paid Services, with or without prior notice to You.
A. Payment. Prices for all Paid Services are in U.S. dollars and exclude any and all applicable taxes, unless expressly stated otherwise. To the extent permissible under law, You are responsible for any applicable taxes, whether or not they are listed on Your receipt or statement. All applicable taxes are calculated based on the billing information You provide us at the time of purchase. If You purchase Paid Services, You agree to pay, using a valid credit or debit card or other form of payment that we may accept from time to time (“Payment Method”), the applicable fees and taxes (if any) set forth in the offer that You accepted. We reserve the right, upon prior notice to You, to change the amount of any fees and to institute new fees, effective at the end of Your current subscription period. All authorized charges will be billed to your designated Payment Method on the terms described in the specific offer. If payment cannot be charged to Your Payment Method or Your payment is returned to us for any reason, we reserve the right to either suspend or terminate your access to the unpaid-for Paid Services. It is Your responsibility to ensure that sufficient funds are available to cover the charges for the Paid Services, and we have no liability for any overdraft or other fees that You may incur as a result of our processing of Your payment.
B. Automatic Renewal Program. Upon Your acceptance of an offer for the purchase of any subscription-based Paid Services, you will be enrolled in our automatic renewal program to help ensure that there is no interruption in Your access to such Paid Services. Under this program, You authorize us to automatically renew your subscription at the end of the term of the subscription You purchased, and each subsequent term, for the same term length of the subscription You initially purchased (unless otherwise stated in the offer you accepted). Unless You change Your renewal status as described below, at the time of each such renewal You authorize us to charge Your designated Payment Method at the then-current, non-promotional price (unless otherwise stated in the offer You accepted) for the renewal of Your subscription.
C. Current Information. You must provide us with current, complete and accurate information for Your Payment Method. You must promptly update all information to keep your Payment Method current, complete and accurate (such as a change in billing address, card number or expiration date), and You must promptly notify us if your Payment Method is cancelled (including if you lose your card or it is stolen), or if You become aware of a potential breach of security (such as an unauthorized disclosure or use of your name or password). Changes to such information can be made by accessing the account portion of the Site or by contacting customer support number. If You fail to provide us with any of the foregoing information, You agree that You are responsible for fees accrued under Your Payment Method. In addition, You authorize us to obtain updated or replacement expiration dates and card numbers for Your credit or debit card as provided by Your credit or debit card issuer.
D. Refund Policy (30 Days). All fees relating to Paid Services, including the initial fees and any subsequent automatic renewal fees (as described above), are refundable up to 30 days after your purchase date (the date you were charged). To request a refund please call (800) 410-3722 during business hours or email email@example.com.
F. Cancellation Policy. You may cancel any subscription at any time. You have three options to cancel: a) log in and navigate to "Cancel My Account" under the tab "Account", b) call our customer support line at (800) 410-3722 and speak with a representative, c) email firstname.lastname@example.org.
E. Chargeback Policy. If You initiate a chargeback or otherwise reverse a payment made with Your Payment Method, we may in our discretion cancel your Paid Services immediately. If we successfully dispute the reversal, and the reversed funds are returned to us, You are not entitled to a refund or to have Your Paid Services reinstated.
XVII. DISCLAIMER OF WARRANTIES; PUBLIC DATA; NO RELIANCE.
You should not assume that the data available through CheckThem include a complete or accurate history of any person’s criminal or civil background or other information. The data contained in the databases used by the Services have been compiled from publicly available information (such as from court records, phone directories, social networks, business websites, and other public sources) and other proprietary sources for the specific purposes of locating individuals and/or providing general background information about individuals.
THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY SITE LINKED TO IT.
YOUR USE OF THE SITE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE ARE AT YOUR OWN RISK. THE SITE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE SITE, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
SUBJECT TO ANY APPLICABLE LAWS WHICH PROHIBIT THE FOLLOWING LIMITATIONS AND EXCLUSIONS, THE DISCLAIMERS OF LIABILITY CONTAINED IN THIS "NO WARRANTIES" SECTION APPLY TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF THIS SITE, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
XVIII. LIMITATION OF LIABILITY
IN NO EVENT WILL THE COMPANY, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE SITE OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. THE TERMS IN THE AGREEMENT RELATING TO DISCLAIMER OF WARRANTIES, ACCESS AND USE OF CHECKTHEM PRODUCTS, AUDIT, LIMITATION OF LIABILITY, INDEMNIFICATION, USER’S RELEASE OF CLAIMS, AND PAYMENT FOR CHECKTHEM PRODUCTS SHALL SURVIVE ANY TERMINATION OF THE END USER AGREEMENT.
YOU AGREE THAT ANY BREACH BY YOU OF ITS AGREEMENTS WITH CHECKTHEM WOULD CAUSE CHECKTHEM AND THE INDEMNIFIED PARTIES IRREPARABLE HARM AND THAT, IN ADDITION TO MONEY DAMAGES, CHECKTHEM AND THE INDEMNIFIED PARTIES SHALL BE ENTITLED TO INJUNCTIVE RELIEF, WITHOUT HAVING TO POST A BOND.
XX. GOVERNING LAW AND JURISDICTION
XXI. ARBITRATION AND CLASS ACTION WAIVER
a) EXCEPT WHERE PROHIBITED BY LAW, YOU AND CHECKTHEM UNDERSTAND AND AGREE THAT ALL CLAIMS, DISPUTES OR CONTROVERSIES BETWEEN YOU AND CHECKTHEM, ITS PARENTS, AFFILIATES, SUBSIDIARIES OR RELATED COMPANIES (INCLUDING DISPUTES AGAINST ANY AGENT, EMPLOYEE, SUBSIDIARY, AFFILIATE, PREDECESSOR IN INTEREST, SUCCESSOR, OR ASSIGN OF THE OTHER) RELATING TO THE SITE, THE INFORMATION AND MATERIALS PUBLISHED BY CHECKTHEM ON OR THROUGH THE SITE, ANY TRANSACTION OR RELATIONSHIP BETWEEN US RESULTING FROM YOUR USE OF THE SITE, COMMUNICATIONS BETWEEN US, OR THE PURCHASE, ORDER, OR USE OF OUR MEMBERSHIP PLANS, THE INFORMATION PROVIDED IN CONNECTION WITH OUR MEMBERSHIP PLANS, AND YOUR USE OF OUR SERVICES, INCLUDING, WITHOUT LIMITATION, TORT AND CONTRACT CLAIMS, CLAIMS BASED UPON ANY FEDERAL, STATE OR LOCAL STATUTE, LAW, ORDER, ORDINANCE OR REGULATION, AND THE ISSUE OF ARBITRABILITY, SHALL BE RESOLVED BY THE FINAL AND BINDING ARBITRATION PROCEDURES SET BELOW. THE PARTIES ACKNOWLEDGE AND AGREE THAT ANY SUCH CLAIMS SHALL BE BROUGHT SOLELY IN THE PARTY'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING, OR PRIVATE ATTORNEY GENERAL CAPACITY. THE PARTIES FURTHER AGREE THAT 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. THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL. ANY CONTROVERSY CONCERNING WHETHER A DISPUTE IS ARBITRABLE SHALL BE DETERMINED BY THE ARBITRATOR AND NOT BY THE COURT. JUDGMENT UPON ANY AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED BY A STATE OR FEDERAL COURT HAVING JURISDICTION THEREOF. THIS ARBITRATION CONTRACT IS MADE PURSUANT TO A TRANSACTION IN INTERSTATE COMMERCE AND ITS INTERPRETATION, APPLICATION, ENFORCEMENT AND PROCEEDINGS HEREUNDER SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT ("FAA").
The following procedures shall apply:
i) Starting the Dispute-Resolution Process. A party (You or CheckThem) who intends to seek arbitration must first send to the other, by certified mail, a written Dispute Notice (“Notice”). The Notice to CheckThem should be addressed to: General Counsel, CheckThem, Inc., 7850 Ivanhoe Avenue, La Jolla, CA 92037 (“Notice Address”). The Notice must (a) provide Your mailing address, phone number, and account name (if any); (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). If CheckThem and You do not reach an agreement to resolve the claim within 45 days after the Notice is received, You or CheckThem may commence an arbitration proceeding with the JAMS (“JAMS”). If for any reason JAMS is unavailable, the parties shall mutually select another arbitration forum.
ii) Costs of Arbitration. CheckThem will pay all JAMS filing, administration, and arbitrator fees for any arbitration that CheckThem initiates. The payment of those fees for any arbitration that You initiate will be governed by the JAMS Rules (which can be found in more detail in subparagraph “d” below). The fees related to arbitration can be found online at https://www.jamsadr.com/arbitration-fees or by calling JAMS (1-800-352-5267), but is subject to change by the JAMS. However, if You initiate an arbitration in accordance with the notice requirements of subparagraph “i” above and are seeking relief valued at $300 or less (both to You and CheckThem), CheckThem will pay all JAMS filing, administration, and arbitrator fees. If Your claim is for greater than $300 but less than $10,000, CheckThem will pay all such fees in excess of $250. After CheckThem receives notice at the Notice Address that You have commenced such an arbitration, CheckThem will promptly reimburse You for any portion of the filing fee that You paid that CheckThem has agreed to pay.
If the arbitrator finds that either the substance of Your claim or the relief sought in the Demand 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 JAMS filing, administration, and arbitrator fees shall be governed by the JAMS Rules, and You agree to reimburse CheckThem for any amounts CheckThem has paid on Your behalf to JAMS.
iii) Arbitration Procedures. The arbitrator shall be bound by the terms of this arbitration provision. The arbitration will be governed by the General Arbitration Rules and the Procedures (collectively, “JAMS Rules”) of JAMS, as modified by this arbitration provision. The JAMS Rules are available online at https://www.jamsadr.com/adr-rules-procedures, or by calling JAMS at 1-800-352-5267, or by writing to the Notice Address. The JAMS shall administer the arbitration. If JAMS is unavailable, the arbitration will be administered by another arbitration provider that the parties mutually agree to or that the court selects.
Unless CheckThem and You agree otherwise, any arbitration hearings will take place in the county (or parish) of Your residence at the time of the filing of the Demand. If You bring a claim for $10,000 or less, we agree 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 established by the JAMS Rules. If Your claim exceeds $10,000, the right to a hearing will be determined by the JAMS Rules.
Arbitrators may consider but shall not be bound by rulings in prior arbitrations involving different customers. Arbitrators shall be bound by rulings in prior arbitrations involving the same customer to the extent required by applicable law.
Unless You and CheckThem agree otherwise, You and CheckThem must bring all directly related claims in a single arbitration proceeding. If You or CheckThem later initiate a subsequent arbitration asserting claims that are directly related to ones that were raised in a prior arbitration between the same parties, JAMS or the arbitrator shall either (i) consolidate the subsequent arbitration with the earlier proceeding if it is ongoing or (ii) dismiss any claims raised in the subsequent arbitration that would be barred by applicable law if brought in court.
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. Although under some laws CheckThem may have a right to an award of attorneys’ fees and expenses if it prevails in an arbitration, CheckThem agrees that it will not seek such an award unless You are represented by an attorney and the arbitrator has determined that Your claim is frivolous or brought for an improper purpose (as measured by the standards of Federal Rule of Civil Procedure 11(b)).
The parties must bring any dispute or claim arising out of or related to the JAMS Rules, or the relationship between them, within one (1) year after the dispute or claim arises, or the dispute or claim will be permanently barred.
To the extent the law applicable under the governing law section above makes this limitation period to bring a dispute or claim unenforceable with respect to any dispute(s) or claim(s), then the statutes of limitations of the state whose laws govern the JAMS Rules in the jurisdiction where the arbitration is held shall apply.
b) CLASS ACTION WAIVER; WAIVER OF JURY TRIAL.
BY AGREEING TO THIS ARBITRATION AGREEMENT, YOU ARE GIVING UP YOUR RIGHT TO GO TO COURT, INCLUDING YOUR RIGHT TO A JURY TRIAL.
In arbitration, a dispute is resolved by a neutral arbitrator or panel of arbitrators, rather than by a judge or jury. Arbitration is more informal than a court trial; however, an arbitrator can award the same relief that a court can award.
Separate and apart from the agreement to arbitrate set forth above, the parties hereby independently waive any right to bring or participate in any class action in any way related to, or arising from, this Agreement. You acknowledge that this class action waiver is material and essential to the arbitration of any disputes between the parties and is non-severable from the agreement to arbitrate claims. If any portion of this class action waiver is limited, voided, or cannot be enforced, then the parties' agreement to arbitrate shall be null and void.
YOU UNDERSTAND THAT BY AGREEING TO THIS ARBITRATION AGREEMENT, WHICH CONTAINS THIS CLASS ACTION WAIVER, YOU MAY ONLY BRING CLAIMS AGAINST CHECKTHEM, ITS AGENTS, OFFICERS, SHAREHOLDERS, MEMBERS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS AND/OR ASSIGNS IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. IF YOU DO NOT AGREE TO THIS ARBITRATION AGREEMENT AND CLASS ACTION WAIVER, YOU MUST TELL US IN WRITING AND NOT USE OUR SITE, SERVICES, OR MEMBERSHIP PLANS.
XXII. WAIVER AND SEVERABILITY
XXIII. ENTIRE AGREEMENT
By submitting and “signing” (including an electronic or digital signature, such as clicking an “I accept” button, in a manner that complies with applicable law) which may include electronic signature or click-through accept) the End User Agreement, the End User agrees that he or she has: (a) fully read the End User Agreement in its entirety; (b) understands all of the terms and conditions of the End User Agreement; (c) honestly and fully answered all questions asked of CheckThem; and (d) agrees to be fully bound by the End User Agreement. Neither this Agreement nor the license granted to you may be assigned, transferred, or sublicensed by you, in whole or in part.
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