These Terms of Service (“Terms”) are entered into between you and Cappex.com, LLC (“Cappex” or“We”) and apply to your use of the Cappex Admissions Advising Service (the“Service”) that you have purchased from Cappex as further described in your Cappex Order Form or other online ordering document where you pay for a Service (“Order Form”). “You” and “Your” as used throughout these Terms refers to the parent, guardian or other payer purchasing the Services and/or the student beneficiary of the Services, as the context requires.
YOU AGREE TO THE BINDING ARBITRATION AGREEMENT, CLASS ACTION WAIVER AND WAIVER OF JURY TRIALS SET FORTH BELOW IN SECTION 7.
1. The Service.
b. Changes to the Service.
Changes to the scope of the Services package you have purchased may require additional fees and/or the execution of an additional Order Form. Cappex must agree in writing to any change in scope to be effective.
You agree to pay the fees as set forth on the Order Form in full prior to Cappex providing you the Service. You have five (5) days from the date you sign the Order Form to notify Cappex that you would like to cancel the Service in which case you may receive a full refund of any fees paid to Cappex, provided however that this cancellation right does not apply if you have already engaged Cappex to deliver a material portion of the Service.
3. Your Obligations / Cappex Termination.
There will be times where Cappex will need your help in order to provide the Services. Therefore, you must cooperate with Cappex in all matters relating to the Services and provide information,approvals, authorizations or other deliverables that Cappex may reasonably request in a timely manner so that Cappex can properly provide the Services. If Cappex believes for any reason that it cannot effectively provide the Service to you, it may terminate the Service and provide you a refund of any fees that may have been prepaid for Service not delivered.
4. Use of Your Data.
5. Intellectual Property Rights.
All techniques and materials provided to you as part of the Services and any other intellectual property (“Cappex Content”) used in or related to the Services are the exclusive property of Cappex or its licensors. You agree not to disclose,reproduce, sell or distribute to any third party any Cappex Content.
6. Disclaimers of Warranties and Limitation of Liability
a. Acknowledgments. With respect to your use of the Service, you acknowledge and agree that (a) college admission decisions cannot be guaranteed and Cappex makes no representation or warranty as to any result of the college admissions process, (b) the Service does not replace the relationship that you may have with your school guidance counselor and you are responsible for following all school procedures related to submitting or obtaining applications, supporting documents, transcripts, letters of recommendation, school report forms, etc.,and (c) you are responsible for completing and submitting all college applications in accordance with required deadlines and communicating as necessary with school officials.
b. CAPPEX MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR
(B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
c. LIMITATION OF LIABILITY. IN NO EVENT SHALL CAPPEX BE LIABLE TO YOU FOR ANY CONSEQUENTIAL,INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL CAPPEX’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SERVICE,WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO CAPPEX PURSUANT TO THE APPLICABLE CAPPEX ORDER FORM.
d. The limitation of liability set forth above shall not apply to (i) liability resulting from Cappex's gross negligence or willful misconduct and (ii) death or bodily injury resulting from Service Provider's negligent acts or omissions.
e. Some jurisdictions do not allow the exclusion of certain warranties or some of the limitation or exclusion of liability for certain types of damages. Therefore,some of the above limitations in this section may not apply to you.
f. Nothing in these Terms of Service shall affect any non-waivable statutory rights that apply to you.
7. ARBITRATION AGREEMENT; CLASS WAIVER, WAIVER OF JURY TRIAL
Please read this Arbitration Agreement carefully. It is part of your contract with Cappex and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
a. Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with these Terms or the use of any Cappex product or service that cannot be resolved informally or in small claims court must be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and Cappex, and to any subsidiaries,affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under these Terms.
b. Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute ("Notice") describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Company should be sent to: Cappex.com, ATTN: Legal Department, 200 W. Jackson, Suite 2700, Chicago, IL 60606. After the Notice is received, you and Cappex may attempt to resolve the dispute informally. If you and Cappex do not resolve the dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
c. Arbitration Rules. Arbitration must be initiated through the American Arbitration Association ("AAA"), an established alternative dispute resolution provider ("ADR Provider") that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties must agree to select an alternative ADR Provider. The rules of the ADR Provider("Arbitration Rules") will govern all aspects of this arbitration,including the method of initiating and/or demanding arbitration, except where such rules are in conflict with these Terms. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. A single, neutral arbitrator must conduct the arbitration. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party must bear its own costs (including attorney's fees)and disbursements arising out of the arbitration, and must pay an equal share of the fees and costs of the ADR Provider.
d. Additional Rules for Non-appearance Based Arbitration. If non-appearance arbitration is elected, the arbitration must be conducted by telephone, online and/or based solely on written submissions; the party initiating the arbitration must choose the specific manner. The arbitration may not require any personal appearance by the parties or witnesses unless mutually agreed by the parties.
e. Time Limits. If you or Cappex pursue arbitration, the arbitration must be initiated or demanded within the legal statute of limitations (i.e., the legal deadline for filing a claim) and any deadline imposed under the AAA Rules for the pertinent claim.
f. Authority of Arbitrator. If arbitration is initiated, the arbitrator will have all authority to decide the rights and liabilities, if any, of you and Cappex in accordance with applicable law, the Arbitration Rules and these Terms, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The award of the arbitrator is final and binding upon you and the Company.
g. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes must be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. If any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL,instead electing that the dispute be resolved by a judge.
h. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CAN NOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
i.Confidentiality. All aspects of the arbitration proceeding, including the award of the arbitrator and compliance therewith, must be kept confidential unless otherwise required by law. This Paragraph does not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief
.j. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts will be of no force and effect and will be severed and the remainder of the Agreement will continue in full force and effect.
k. Right to Waive. The party against whom the claim is asserted may waive any or all of the rights and limitations set forth in this Agreement. Such waiver does not waive or effect any other portion of this Agreement.
l. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
m. Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures will not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
n. Claims Not Subject To Arbitration. Notwithstanding the foregoing, claims of defamation,violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party's patent, copyright, trademark, or trade secret are not subject to this arbitration agreement.o. Courts. In any circumstances where the foregoing Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Cook County, Illinois, for such purpose.
a. Governing Law. These Terms are governed by and construed in accordance with the laws of the state of Illinois without regard to its rules on conflicts of law. These terms will not limit any consumer protection rights that you may be entitled to under the mandatory laws of your state of residence.
b. Assignment. You may not assign any of your rights or delegate any of your obligations under this Agreement without Cappex’s prior written consent. Any purported assignment or delegation in violation of this Section is null and void. Cappex may assign its rights and obligations under these Terms to a third party who acquires all or substantially all of Cappex’s assets or otherwise acquires a controlling interest in Cappex without your consent.
c. Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of the Service including the following provisions: Section 6, Disclaimer of Warranties and Limitation of Liability, Section 7, Arbitration Agreement, Class Waiver and Waiver of Jury Trial, Section 8(a), Governing Law and 8(c), Survival.