Terms of Service
Last updated: November 12, 2017
1. Acceptance of Terms; Modifications. These Terms of Service (the “Terms”) are a binding legal agreement between you and Cleftune, . (“Cleftune.ca,” “we,” “us” and “our”). The Terms govern your use of our software applications, resources and services for Students and music teaching service providers to find each other, communicate with each other, and arrange for the provision of music teaching services (collectively, our “Cleftune.ca Service”). The Terms govern all use of the Cleftune.ca Service, whether you access it from our website at https://www.testsite.win (the “Site”), our mobile applications and mobile websites, our Facebook application, our online or phone support offerings, or any other access point we make available to you. BY ACCESSING OR USING Cleftune.ca SERVICE, YOU ACCEPT THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, YOU SHOULD NOT ACCEPT THEM, IN WHICH CASE YOU DO NOT HAVE THE RIGHT TO USE THE Cleftune.ca SERVICE.
You understand and agree that we may change the Terms from time to time, and that any such changes will be effective immediately (except as otherwise described in Section 18.9 below) when we post the modified Terms on the Cleftune.ca Service. Your continued access and use of the Cleftune.ca Service after we post the modified Terms will constitute your consent to be bound by the modified Terms.
2. Cleftune.ca Service.
2.1 Nature of the Cleftune.ca Service. The Cleftune.ca Service consists of a desktop Web application and other related tools, support and services that student (“Students”) and providers of music teaching services (“Music Teachers”) can use to find, communicate with and interact with each other. The Cleftune.ca Service includes our support services, educational materials for Music Teachers and other related services. Cleftune does not make profit on any transactions, however service fees are charged to help allow Cleftune operate, as described below in Section 10.
2.2 Cleftune.ca does not provide Student Services. Cleftune.ca is a neutral venue for Service Providers and Students. Cleftune.ca is not a Service Provider and, except for our support center and other resources specifically described in the Cleftune.ca Service, Cleftune does not provide student services. We make no representations or warranties about the quality of music lessons or other services provided by Service Providers (“Music Teachers”), or about your interactions and dealings with users. Though we provide general guidance on our Site to Service Providers about safety and educational materials and to Students about selecting and engaging Service Providers, Cleftune.ca does not employ, recommend or endorse Service Providers or Students, and we will not be responsible or liable for the performance or conduct of Service Providers or Students, whether online or offline. We conduct an initial review of Service Provider applications and we facilitate background checks on Service Providers, but, except where explicitly specified in the Cleftune.ca Service (and then only to the extent specified), do not otherwise screen Service Providers or Students. You should exercise caution and use your independent judgment before engaging a Service Provider, providing services, or otherwise interacting with users via the Cleftune.ca Service. Students and Service Providers are solely responsible for making decisions that are in the best interests of themselves.
2.3 Release. We hereby expressly disclaim, and you hereby expressly release us from, any and all liability whatsoever for any controversies, claims, suits, injuries, loss, harm and/or damages arising from and/or in any way related to your interactions or dealings with other users and the acts and/or omissions of Service Providers and Students, whether online or offline. You acknowledge and agree that YOUR USE AND/OR PROVISION OF MUSIC TEACHING SERVICES IS AT YOUR SOLE AND EXCLUSIVE RISK.
2.4 Transactions are between Students and Service Providers. The Cleftune.ca Service may be used to find and offer Music Teaching Services and to facilitate payment, but all transactions conducted via the Cleftune.ca Service are between Students and Service Providers. Except for the limited refunds of Cleftune.ca’s fees described in Section 10.5, you agree that Cleftune.ca has no liability for damages associated with Music Teaching Services (which may include bodily injury to, or death of, a student or service provider) or resulting from any other transactions between users of the Cleftune.ca Service.
2.5 Bookings. Students and Service Providers transact with each other on the Cleftune.ca Service when they both agree to a “booking” that specifies the fees, time period, cancellation policy, and other terms for provision of Music Teaching Services (a “Booking”). One you complete a Booking, you agree to honor the price and other terms of that Booking. For more information about Bookings, please visit our Help Center.
2.6 Students are Solely Responsible for Evaluating Service Providers. Students are solely responsible for evaluating the suitability of Service Providers for the services they offer to provide. Please visit our Help Center for guidance about making informed decisions about engaging Service Providers. Though Cleftune.ca performs a limited review of applications to become Service Providers and facilitates Service Provider background checks, any such screening is limited, and Cleftune.ca does not warrant that any such screen is accurate, complete, conclusive or up-to-date. Similarly, Cleftune.ca does not endorse reviews of Service Providers by other Students that may be available via the Cleftune.ca Service, and Cleftune.ca makes no commitments that such reviews are accurate or legitimate.
2.7 Emergencies. We recommend that Students’ Parents and/or Guardians give Service Providers their contact information in the event medical care for Students under eighteen becomes necessary. Service Providers agree to immediately contact Students’ Parents and/or Guardians in the event such care becomes necessary or, if contact information for the Student under eighteen is not available, to contact Cleftune.ca by phone at +1 437 345 6743 or at email@example.com.
3. Eligibility. By accessing and using the Cleftune.ca Service, you certify that (1) you are 18 years of age or older, and (2) if registering to be a legal parent or guardian of a student under the age of 18 you agree you are responsible for booking lessons to your children and you agree you must be present at all lessons provided by the Service Provider to your child or children. Cleftune is not responsible for any wrong doing to any person (Service provider, student or parent/guardian) including but not limited to, verbal abuse, bodily harm, illegal behavior or acts, missing person or death. You, the parent or legal guardian of a student under 18 years of age, take full responsibility of the safety of your child(ren) during a lesson provided by a Service provider. You also certify that (3) if you are registering to be a Service Provider on Cleftune.ca Service, you are legally eligible to work in the jurisdiction where you will provide Music Teaching Services, you have complied and will comply with all provincial, federal, state, county, municipal and other laws, statutes and ordinances that are applicable to you, and you have obtained all business licenses, permits, and fulfilled any other necessary requirements to legally provide Music Teaching Services. You acknowledge that Cleftune.ca is entitled to rely on these commitments, and is not responsible to ensure that all users have met these eligibility conditions.
4. Use of the Cleftune.ca Service; Suspension.
4.1 Your Conduct on the Cleftune.ca Service. When you use the Cleftune.ca Service, you agree:
- To use the Cleftune.ca Service only in a lawful manner and only for its intended purposes.
- Not to submit viruses or other malicious code to or through the Cleftune.ca Service.
- Not to use the Cleftune.ca Service, or engage with other users of the Cleftune.ca Service, for purposes that violate the law.
- Not to use the Cleftune.ca Service (or any predecessor to the Cleftune.ca Service) to arrange for the provision and purchase of services with another user, then complete transactions for those services offline.
- Not to post reviews about Service Providers that aren’t based on your personal experience, that are intentionally inaccurate, or that violate these Terms.
- Not to post content or materials that are pornographic, threatening, harassing, abusive, or defamatory, or that contain nudity or graphic violence, incite violence, violate intellectual property rights, or violate the law or the legal rights (for example, privacy rights) of others.
- Not to post “spam” or other unauthorized commercial communications.
- To use the Cleftune.ca Service only for your own purposes, and not to impersonate any other person.
- Not to transfer or authorize the use of your account for the Cleftune.ca Service by any other person.
- Not to provide false information in your profile on, or registration for, the Cleftune.ca Service.
- Not to interfere with our provision of, or any other user’s use of, the Cleftune.ca Service.
- Not to solicit another user’s username and password for the Cleftune.ca Service.
4.2 Suspension and Termination. You understand and agree that we have no obligation to provide the Cleftune.ca Service to you, nor any obligation to continue providing it once we have begun. If we believe your conduct on the Site or Cleftune.ca Service is inappropriate or violates these terms, and for any other reason (or no reason at all), we reserve the right to suspend or terminate your access to the Cleftune.ca Service in our sole discretion.
5. Registration; Account Security. In order to use some aspects of the Cleftune.ca Service, you will be required to create a username, password, and user profile. If you elect to use the Cleftune.ca Service, you agree to provide accurate information about yourself and keep this information up-to-date. You agree not to impersonate anyone else and not to maintain more than one account. You are responsible for maintaining the confidentiality of your username and password for the Cleftune.ca Service, and you agree not to authorize anyone else to use your username and password. You are responsible for all activity under your account. You agree to notify us promptly of any unauthorized use of your account.
7. Your Content.
7.1 Your Content. We may require or allow you (or someone else on your behalf) to submit or upload text, photographs, images, videos, reviews, information and materials to your profile on the Cleftune.ca Service or otherwise in connection with using the Cleftune.ca Service and/or participating in promotional campaigns we conduct on the Site (collectively, “Your Content”). For example, Service Providers are invited to create a profile page with a photograph and other information, while Students may submit reviews of Service Providers.
7.3 Release. If your name, voice, image, persona, likeness, or performance is included in any of Your Content, you hereby waive, and release Cleftune.ca and its users from, any claim or cause of action, whether known or unknown, for defamation, copyright infringement, invasion of the rights of privacy, publicity, or personality, or any similar claim arising out of the use of Your Content in accordance with the license in Section 7.2 and the other provisions of these Terms.
7.4 Your Representations and Warranties about Your Content. You represent and warrant that (1) you are the owner or licensor of Your Content, and that you have all rights, consents and permissions necessary to grant the license in Section 7.2 and make the release in Section 7.3 with respect to Your Content, (2) that you have any necessary consents and releases from individuals who appear in Your Content; and (3) Your Content does not violate the law or these Terms.
7.5 Right to Remove or Screen Your Content. Though we are not obligated to do so, we reserve the right to monitor, screen, edit and/or remove Your Content on the Cleftune.ca Service. Our enforcement of these Terms with respect to Your Content is at our discretion, and failure to enforce the Terms in one instance does not create a waiver of your right to enforce them in another instance. We have no obligation to retain or provide you with copies of Your Content, nor will we have any liability to you for any deletion, disclosure, loss or modification to Your Content. It is your sole responsibility to maintain backup copies of Your Content.
7.6 Reviews. If you are a Service Provider, we have no obligation to provide you with the content of any reviews about you submitted by other users of the Cleftune.ca Service, whether before or after termination of your account for the Cleftune.ca Service. We will have no liability to you for any deletion, disclosure, loss or modification of these reviews. We reserve the right to screen, edit or remove these reviews from the Cleftune.ca Service at any time.
8. Insurance. For Music Teaching Services booked through Cleftune.ca, Cleftune.ca does not offers any type of insurance program. When you use the Cleftune.ca Service, you agree:
- Cleftune does not offers insurance for services booked through the site and does not replace your homeowners or renters insurance.
- Cleftune will not cover damage or loss to property caused by a student or teacher at your space and doesn’t cover loss or damage to property due to wear and tear.
- Cleftune doesn’t cover cash and securities, collectibles, rare artwork, jewellery, pets or personal liability.
9. Location Information; Consent to Communications.The Cleftune.ca Service’s web and mobile applications may implement location features that, if you consent, result in automatic collection of your geolocation information, in which case our computer or mobile application may use such information to allow users to determine which other users are nearby. We may also use this location information to provide information and advertising. IF YOU WANT TO STOP THE AUTOMATIC COLLECTION OF YOUR LOCATION INFORMATION, YOU MAY DO SO BY USING THE PRIVACY SETTINGS IN YOUR OR OUR COMPUTER OR MOBILE APPLICATION AND/OR ON YOUR DEVICE, OR BY UNINSTALLING OUR MOBILE APPLICATION.Certain aspects of the Service may not function without the collection of geolocation information.
You consent to Cleftune.ca communicating with you about the Cleftune.ca Service by SMS, text message, email and other electronic means. Your carrier’s normal, messaging, data and other rates and fees will apply to these communications. In the event you deactivate a mobile phone number provided to us for this purpose, you agree to update your Cleftune account information promptly to ensure that messages are not sent to the person who acquires your old number.
10. Fees & Payment.
10.1 Currency. All fees, deductible amounts and other payments referenced on, or charged through, the Cleftune.ca Service are listed and payable in local currency. (If you use the Cleftune.ca Service to book a Service Provider in Canada, your payments will be in CAD; if you use the Cleftune.ca Service to book a Service Provider in the United States, your payments will be in USD.)
10.2 Fees for Students. Students may purchase Music Teaching Services from a Service Provider by completing a Booking as described in Section 2.5. If you are a Student, you enter into a transaction with the Service Provider when you accept a Booking, and you agree to pay the total fees indicated in the Booking. Except where otherwise specifically indicated on the Cleftune.ca Service, fees for Music Teaching Services are determined by Service Providers. As described in Section 10.4, the total amount Students are charged for a Booking may also include a service fee payable to Cleftune.ca. Where required by law, the amount charged may also be inclusive of applicable taxes. The Service Provider, not Cleftune.ca, is responsible for performing the Music Teaching Services.
10.3 Fees for Service Providers. Service Providers may agree to provide Music Teaching Services to a Student by agreeing to a Booking as described in Section 2.5. If you are a Service Provider, you must confirm the Booking before it expires or the Student will have no obligation to complete the transaction. Once the Booking is completed by both parties, you agree to honor the price set forth in your Booking. The purchase of Music Teaching Services is a transaction between the Student and the Service Provider. Cleftune.ca’s role is to facilitate payments from Students to Service Providers as an agent for the Service Provider. We collect payment from the Student at the time of Booking and (except to the extent of any payment hold pursuant to Section 10.6) remit payment to the Service Provider’s account on the Cleftune.ca Service at the end of every month after completion of the service period indicated in the Booking. Service Providers may be charged with a service fee as described in Section 10.4, which we deduct before remitting payment to Service Providers.
10.4 Service Fees. Cleftune Service is currently free. However, we may charge service fees for some aspects of the Cleftune.ca Service at anytime in the future. If you are a Service Provider, except where otherwise specified via the Cleftune.ca Service, our service fee is calculated as a percentage of the fees a Student agrees to pay in a Booking. We deduct this service fee from the amounts paid by the Student. Our service fees are described here
10.5 Cancellations and Refunds.
Cancellations by Service Provider. If a Service Provider cancels a Booking prior to or during the service period identified in the Booking, we will refund the fees paid by the Student for Music Teaching Services not provided, as well as any service charge paid to Cleftune.ca. Service Provider cancellations are taken seriously. If you are a Service Provider, you acknowledge that cancellation by you may result in a review of your account and, if we deem it appropriate, suspension or termination of your access to the Cleftune.ca Service.
Reservation Guarantee. As more fully described on Cleftune.ca’s Reservation Guarantee page, Cleftune.ca uses all reasonable efforts to find replacement Service Providers when Service Providers cancel Bookings near the start date of the service period identified in the Booking. The availability of the Reservation Guarantee depends on the timing of the cancellation; consult the Reservation Guarantee page for details. Generally, if the Reservation Guarantee applies and a Student accepts a new Booking with a replacement Service Provider, Cleftune.ca will not pay the cost difference between the original Booking and the new Booking.
Cancellations by Student. If a Student cancels a Booking prior to or during the service period specified in a Booking, we will refund fees in accordance with the cancellation policy selected by the Service Provider on the Cleftune.ca Service. All Service Providers are required to select a cancellation policy prior to completing a Booking so that Students are aware of the cancellation policy prior to Booking. For more information about cancellation policies, please visit our Help Center.
Refunds for Substandard Services. If we determine in our reasonable discretion that a Service Provider has failed to provide Music Teaching Services in accordance with our guidelines and policies on the Site or these terms then we may, in our reasonable discretion, cancel a Booking and issue a full or partial refund to a Student.
General Terms for Cancellations. If you wish to cancel a Booking, you should use the mechanisms available through the Cleftune.ca Service to do so. For purposes of the policies and terms in this Section 10.5, the date of cancellation is the date a user cancels through the Cleftune.ca Service, regardless of any separate communications between users outside of the Cleftune.ca Service.
Payment Disputes; Payment Outside of the Cleftune.ca Service. Cleftune.ca issues payments to Service Providers at the end of every month after completion of a Booking. Once these amounts have been disbursed, any further payment disputes are between the Student and Service Provider, and Cleftune.ca has no obligation to mediate or facilitate any resolution. Further, Cleftune.ca has no responsibility or liability with respect to any tips, bonuses, or other payments made outside of the Cleftune.ca Service.
10.6 Payment Holds. If you are a Service Provider, we may issue a hold on amounts otherwise payable to you pursuant to Section 10.3. We may also recommend that third party payment service providers restrict your access to funds in your account under the same circumstances.
10.7 Resolution Center. Service Providers and Students may offer or request refunds, damage payments or other accommodations related to their Bookings. In such cases, both parties agree that they are responsible for performing their agreements, and that Cleftune is not party to any such agreement and has no obligation to perform any term thereof (except to facilitate payments in accordance with this Section 10). When you participate in a Resolution Center case, you agree to pay all amounts sent through the Resolution Center via your account on the Cleftune.ca Service.
10.8 Authorization to Charge. When you pay for Music Teaching Services or for other services on the Cleftune.ca Service, you will be required to provide us with valid, up-to-date credit card or other payment information. You authorize us to charge your credit card or other payment method for fees you incur on the Cleftune.ca Service as they become due and payable. You are responsible for maintaining up-to-date payment information. If we cannot charge you for fees when due because your payment information is no longer valid, or if we do not receive your payment when due, then you understand that neither Cleftune.ca nor the Service Provider will be responsible for any failure to provide services associated with those fees. Except as expressly provided in these Terms, all fees paid via the Cleftune.ca Service are non-refundable once paid.
10.9 Taxes. Except for taxes on Cleftune.ca’s income and gross receipts generally, you acknowledge that you are responsible to pay any taxes that arise as a result of your purchase, provision, or use of services via the Cleftune.ca Service. This includes, without limitation, any form of sales tax or income tax on fees paid or received through the Cleftune.ca Service.
11. Background Checks.
Cleftune.ca may provide Service Providers with access to third party consumer reporting agencies that perform, among other things, criminal records checks, sex offender registry checks and identification verifications (collectively, “Background Checks”). We do not provide, and are not responsible or liable in any manner for, the Background Checks, and we do not endorse or make any representations or warranties regarding the reliability of such Background Checks or the accuracy, timeliness or completeness of any information in the Background Checks. We do not independently verify information in the Background Checks.
If you undergo a Background Check via the Cleftune.ca Service, you hereby consent to the collection, use and disclosure of the information in the Background Checks, and you agree to provide complete and provide accurate information for your Background Check. You understand and agree that Cleftune.ca may, in its sole discretion, review and rely on the information in the Background Checks in deciding whether to suspend or terminate or investigate a complaint about a Service Provider, but also that we are not obligated to do so, and are not responsible or liable in any way in the event that any information in any Background Check is not accurate, timely or complete. If you are the subject of a Background Check, you may contact the applicable third-party consumer reporting agency to dispute the accuracy, timeliness or completeness of such information. You agree that Cleftune’s rights and obligations under the Arbitration Agreement inure to the benefit of the consumer reporting agency used for Background Checks in respect of any claim that would be subject to the Arbitration Agreement if brought against us. Cleftune.ca reserves the right to suspend or terminate your access to the Cleftune.ca Service based on information in the Background Checks or for any other reason, or no reason, in our sole discretion.
Students remain fully liable to evaluate and investigate Service Providers. Be aware of the following limitations in Background Checks: Except as otherwise expressly provided in these Terms or through the Service, Cleftune.ca does not automatically run Background Checks on any Users. Records not available to third-party Background Checking agencies will not be included in the results. Not all arrest logs and records, conviction and correction records, sex offender registries and motor vehicle records are available in all jurisdictions. In many jurisdictions there is a delay before arrest logs and records, conviction and correction records, sex offender registries and motor vehicle records are included in Background Checks. Juvenile records and offenses for minors may not appear in the public record and are therefore not included in the results. Dismissed cases, arrests not resulting in convictions, arrests or convictions from foreign countries and nolle pros will not be reported. Traffic violations are not included unless a jurisdiction reports them as criminal offenses. In the jurisdictions where traffic violations are reported as criminal offenses, such traffic violations may be included in the results as misdemeanors or felonies.
12. Copyright Infringement.
If you believe in good faith that your copyrighted work has been infringed by content posted on the Cleftune.ca Service, please provide our designated copyright agent with a written notice that includes all of the following information:
- A description of the copyrighted work you believe to have been infringed;
- A description of the URL or other location on our Site of the material you believe to be infringing;
- Your name, mailing address, telephone number and email address;
- A statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- A statement by you, which you make 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; and
- An electronic or physical signature of the person authorized to act on behalf of the copyright owner.
Our designated agent for notice of copyright infringement can be reached at:
Attention: Copyright Notice
1476 Clearview Drive, Oakville, Ontario, L6J6W9
13. Third Party Services, Links. The Cleftune.ca Service may contain links to third party websites or resources. You acknowledge and agree that we are not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement of such websites or resources, or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
14. Indemnity. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD Cleftune.ca HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, LOSSES, EXPENSES, DAMAGES AND/OR LIABILITIES, INCLUDING REASONABLE ATTORNEYS’ FEES AND COURT COSTS, THAT ARE IN ANY WAY RELATED TO YOUR: (1) transactions and interactions, online or offline, with other users of the Cleftune.ca Service; (2) breach of these Terms; (3) disputes with other users of the Cleftune.ca Service; (4) your misstatements, misrepresentations, or violation of applicable law; (5) property damage or personal injury to third parties caused by you; (6) Your Content; or (7) your use of any Background Check information in violation of the Fair Credit Reporting Act (FCRA) or other applicable law. YOU FURTHER AGREE THAT YOU WILL COOPERATE WITH US IN THE DEFENSE OF SUCH CLAIMS. WE RESERVE THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER SUBJECT TO INDEMNIFICATION UNDER THIS SECTION, AND YOU WILL NOT SETTLE ANY SUCH CLAIM OR MATTER WITHOUT OUR ADVANCE WRITTEN CONSENT.
15. Intellectual Property.
15.1 Cleftune.ca Service. Cleftune.ca and its licensors retain all right, title and interest in and to the Cleftune.ca Service, the technology and software used to provide it, all electronic documentation and content available through the Cleftune.ca Service (other than Your Content), and all intellectual property and proprietary rights in the Cleftune.ca Service and such technology, software, documentation and content. Except for your rights to access and use the Cleftune.ca Service set forth in these Terms, nothing in these Terms licenses or conveys any of our intellectual property or proprietary rights to anyone, including you. You agree that we will have a perpetual right to use and incorporate into the Cleftune.ca Service any feedback or suggestions for enhancement that you provide to us concerning the Cleftune.ca Service, without any obligation of compensation.
15.2 Cleftune Trademarks. Cleftune.ca owns all rights in and to its trademarks, service marks, brand names and logos (the “Cleftune Marks”). If you are a Service Provider, Cleftune grants you, for so long as you are in good standing on the Cleftune.ca Service, a limited, revocable, non-exclusive, non-transferable license to use the Cleftune Marks solely: (1) in the form incorporated into goods, including customizable marketing collateral (business cards, signage etc.), made available for purchase via the Cleftune Store and/or (2) in any other manner specifically authorized in writing via the Cleftune.ca Service. As a condition of exercising such license, you agree that (1) all goodwill associated with your use of the Cleftune Marks inures solely to the benefit of Cleftune.ca, and (2) such license immediately terminates upon your ceasing to be a Service Provider in good standing, whether at your own option or because Cleftune suspends or terminates your rights to use the Cleftune.ca Service.
16. Warranty Disclaimer for the Cleftune.ca Service. The information and materials found on the Cleftune.ca Service, including text, graphics, information, links or other items, are provided “as is” and “as available.” Reviews, profiles, advice, opinions, statements, offers, or other information or content made available through the Cleftune.ca Service, but not directly by Cleftune.ca, are those of their respective authors, who are solely responsible for such content. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Cleftune.ca DOES NOT: (1) WARRANT THE ACCURACY, ADEQUACY OR COMPLETENESS OF INFORMATION AND MATERIALS ON THE Cleftune.ca SERVICE; (2) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY OTHER THAN Cleftune.ca; (3) WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, FREE FROM COMPUTER VIRUSES, UNINTERRUPTED, ALWAYS AVAILABLE, ERROR-FREE OR WILL MEET YOUR REQUIREMENTS, OR THAT ANY DEFECTS IN THE Cleftune.ca SERVICE WILL BE CORRECTED. TO THE EXTENT PERMITTED BY APPLICABLE LAW, Cleftune.ca EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE Cleftune.ca SERVICE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ACCURACY. IN ADDITION AND WITHOUT LIMITING THE FOREGOING, WE MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING THE SUITABILITY OF ANY SERVICE PROVIDER THAT OFFERS MUSIC TEACHING SERVICES VIA THE Cleftune.ca SERVICE.
17. Limitation of Liability
17.1 Exclusion of Certain Types of Damages. In no event will Cleftune.ca be liable to you for any indirect, special, incidental, or consequential damages, losses or expenses that arise out of or relate to the use of or inability to use the Cleftune.ca Service, including without limitation damages related to any information received from the Cleftune.ca Service, removal of your profile information or review (or other content) from the Cleftune.ca Service, any suspension or termination of your access to the Cleftune.ca Service, or any failure error, omission, interruption, defect, delay in operation or transmission of the Cleftune.ca Service, even if we are aware of the possibility of any such damages, losses or expenses. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
18. Arbitration Agreement.
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH Cleftune.ca AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
18.1 Arbitration Agreement; Claims. This Section 18 is referred to as the “Arbitration Agreement” in these Terms. Unless you opt out of the Arbitration Agreement in accordance with the procedure described in Section 18.9 below, you and Cleftune.ca (together, the “Parties”) agree that any and all disputes or claims that arise between you and Cleftune.ca relating to the Cleftune.ca Service, interactions with others on the Cleftune.ca Service, and/or these Terms (including any alleged breach of these Terms) (collectively, “Claims”), except for Excluded Claims (defined in the following sentence), will be resolved as set forth in this Arbitration Agreement. As used herein, “Excluded Claims” means (1) individual claims brought in small claims court (if your claims qualify), (2) claims arising out of or related to a violation of Section 4.1, above, (3) claims in which either party seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property (including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents), and (4) claims that, as a matter of applicable law, cannot be made subject to arbitration.
18.2 Agreement to Arbitrate. Unless you opt out of the Arbitration Agreement in accordance with the procedure described in Section 18.9 below, you agree that any and all Claims (other than Excluded Claims) will be resolved exclusively on an individual basis through final and binding arbitration, rather than in a court, in accordance with this Arbitration Agreement, and your rights in connection with all Claims (other than Excluded Claims) will be determined by a neutral arbitrator, not by a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To the extent that the Parties’ dispute involves both timely filed Excluded Claims and other Claims subject to this Agreement, the Parties agree to bifurcate and stay for the duration of the arbitration proceedings any such Excluded Claims.
18.3 Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND Cleftune.ca AGREE THAT, UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT IN ACCORDANCE WITH SECTION 18.9 BELOW, EACH OF US MAY BRING CLAIMS (EXCEPT TO THE EXTENT THAT THE RIGHT TO BRING A CLAIM IN A PURPORTED CLASS OR REPRESENTATIVE ACTION CANNOT BE WAIVED AS A MATTER OF LAW) AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND Cleftune.ca AGREE OTHERWISE (OR TO THE EXTENT THAT THE RIGHT TO BRING A CLAIM IN A PURPORTED CLASS OR REPRESENTATIVE ACTION CANNOT BE WAIVED AS A MATTER OF LAW), THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER Cleftune.ca USERS.
18.4 Pre-Arbitration Dispute Resolution. Before you commence arbitration, we suggest that you contact us to explain your complaint. Our preference will always be to resolve complaints amicably and efficiently, without the need for arbitration. You may contact us via email at firstname.lastname@example.org or by mail at Cleftune, Attn: Legal, 1476 Clearview Drive, Oakville, Ontario, L6J6W9. If the issue is not resolved and results in arbitration, we will need to mutually select and agree upon an arbitrator and the rules and procedures to govern the arbitration.
18.5 Arbitration Procedures. The Parties will try in good faith to mutually select and agree upon an arbitrator and rules and procedures to govern the arbitration. If we cannot agree, then the arbitration will be conducted by a neutral arbitrator.
The arbitration will be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Cleftune.ca may elect to have the arbitration conducted by telephone or based solely on written submissions, which election will be binding on you and Cleftune.ca subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by you and/or Cleftune.ca, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of Washington, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator will not be bound by rulings in prior arbitrations involving different Cleftune.ca users, but is bound by rulings in prior arbitrations involving the same Cleftune.ca user to the extent required by applicable law. As limited by the Federal Arbitration Act, these Terms and the applicable JAMS Rules, the arbitrator will have (1) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Claim, including the determination of whether a Claim is arbitrable, and (2) the authority to grant any remedy that would otherwise be available in court.
18.6 Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be shared equally by you and Cleftune, except where prohibited by applicable law. In addition, (1) if you demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Cleftune.ca will pay your portion of such fees, and (2) if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Cleftune.ca will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Each party will be solely responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Cleftune.ca for all fees associated with the arbitration paid by Cleftune.ca on your behalf.
18.7 Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
18.8 Severability. If any term, clause or provision of this Section 18 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 18 will remain valid and enforceable.
18.9 Opt-Out Procedure. You can choose to reject this Arbitration Agreement by mailing us a written opt-out notice (“Opt-Out Notice”) in accordance with the terms of this Section 18.9. For new Cleftune.ca users, the Opt-Out Notice must be postmarked no later than 30 days after the date you accept these Terms for the first time. If you are already a current Cleftune.ca user and previously accepted the Cleftune.ca Terms, the Opt-Out Notice must be postmarked no later than July 16, 2017. You must mail the Opt-Out Notice to Cleftune, Attn: Legal, 1476 Clearview Drive, Oakville, Ontario, L6J6W9. The Opt-Out Notice must state that you do not agree to the Arbitration Agreement and must include your name, address, phone number, and the email address(es) used to register for the Cleftune.ca Service to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Arbitration Agreement. If you opt out of the Arbitration Agreement, the entire Arbitration Agreement will not apply with respect to you, but the remainder of these Terms will continue to apply. Opting out of this Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with us. By opting out of binding arbitration, you are agreeing to resolve Claims (including Excluded Claims) in accordance with Section 19.
18.10 Future Changes to this Arbitration Agreement. Notwithstanding any provision in these Terms to the contrary, you agree that if we make any change to this Arbitration Agreement (other than a change to any notice address or website link provided herein) in the future, that change will not apply to any claim that was filed in a legal proceeding against Cleftune.ca prior to the effective date of the change. Moreover, if we terminate this Arbitration Agreement by removing it from these Terms, such termination will not be effective until 30 days after the version of these Terms not containing the Arbitration Agreement is posted to the Site, and will not be effective as to any claim that was filed in a legal proceeding against Cleftune.ca prior to the effective date of removal.
19. Governing Law and Jurisdiction. These Terms, and any dispute between you and Cleftune.ca, will be governed by the laws of the Province of Ontario, without regard to principles of conflicts of law, except that the Federal Arbitration Act will govern the interpretation and enforcement of Section 17 (the Arbitration Agreement). Unless you and we agree otherwise, in the event that the Arbitration Agreement is found not to apply to you or to a particular claim or dispute, you agree that any claim or dispute that arises between you and Cleftune.ca must be resolved exclusively by a provincial or federal court located in the province of Ontario. You and Cleftune.ca agree to submit to the personal jurisdiction of the courts located within Toronto, Ontario for the purpose of litigating all such claims or disputes.
20. Miscellaneous. Nothing in this Agreement will be construed as making either party the partner, joint venturer, agent, legal representative, employer, contractor or employee of the other. Neither party will have, or hold itself out to any third party as having, any authority to make any statements, representations or commitments of any kind, or to take any action, that will be binding on the other, except as provided for herein or authorized in writing by the party to be bound. The invalidity, illegality or unenforceability of any term or provision of these Terms will in no way affect the validity, legality or enforceability of any other term or provision of these Terms. In the event a term or provision is determined to be invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and these Terms will be enforceable as so modified. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and assigns of the parties hereto.
If you have any questions about anything in these Terms, please contact us via email at email@example.com or by mail at Cleftune, Attn: Legal, 1476 Clearview Drive, Oakville, Ontario, L6J6W9.