These Terms of Use (“Terms”) apply to the use of the ScholarMatch website (https://scholarmatch.org/) (the “Site”) and services made available through the Site (collectively with the Site, “Services”). The Services are provided by ScholarMatch, Inc. (“ScholarMatch”, “we”, “us” or “our”), and these Terms represent a binding agreement between you as the user of the Services (“user,” “you” or “your”) and ScholarMatch. By accessing or using the Services, you confirm your acceptance of these Terms and our associated Privacy Policy which is hereby incorporated into these Terms. If you do not agree to these Terms, you must immediately discontinue the use of any Services.

NOTICE:  THESE TERMS CONTAIN AN ARBITRATION PROVISION UNDER WHICH YOU ARE OBLIGATED TO LITIGATE CLAIMS IN A PRIVATE ARBITRATION RATHER THAN IN COURT, UNLESS YOU OPT OUT AS SPECIFIED IN SECTION 19.  YOU FURTHER WAIVE THE RIGHT TO A TRIAL BY JURY AND TO BRINGING ANY CLAIMS IN A REPRESENTATIVE ACTION OR AS A CLASS ACTION.

1. Description

The Services include supporting underserved first-generation college students from low-income backgrounds to earn a bachelor’s degree within five years. We provide virtual individualized advising, targeted financial support , and career mentoring all the way to graduation.

2. Changes

Our Services may evolve and change over time.  For this reason, we may from time to time modify, amend or vary these Terms (collectively, “Modifications”) to cover new Services or to comply with changes in the law. Please check these Terms regularly to ensure you are aware of any Modifications made by us. If you continue to use our Services, you are deemed to have accepted such Modifications. If you do not agree to such Modifications, you should discontinue use of our Services.

3. Eligibility, Registration and Fees.

You must be at least 13 years of age and a resident in the United States to use the Services. By using the Services, you further affirm that (a) you are not a resident of a country that the U.S. government has embargoed for use of the Services, nor are you named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations, and (b) you are fully able and competent, or have the consent of your parent or legal guardian, to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms.

You represent that:

• You will fully comply with all applicable laws and agreements that govern your use of the Services; and
• You will not use the Services in violation of any law or for any fraudulent or illegal activity.

4. Intellectual Property and Feedback

The Site, Services and their entire contents, features and functionality (including but not limited to information, software, text, displays, images, video and audio and the design, selection and arrangement thereof) and any and all rights (including intellectual property and other proprietary rights) therein are owned by ScholarMatch, 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. ScholarMatch and its associated logos are the trademarks of ScholarMatch (“ScholarMatch Trademarks”).  Other trademarks, service marks, graphics and logos used in connection with the Services are the trademarks of their respective owners (collectively, “Third Party Trademarks”). The ScholarMatch Trademarks and Third Party Trademarks may not be copied, imitated or used, in whole or in part, without the prior written permission of ScholarMatch.  We welcome your comments, suggestions, comments, ideas or other feedback (“Feedback”) about our Services.  If you provide Feedback, you agree that we can use that Feedback for any purpose, including to improve the Services, without further obligation (including payment) to you. You hereby grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, copy, modify, publish, distribute, create derivatives of, exploit and sublicense the Feedback.

5. Prohibited Uses

We want to make the Services a safe and secure place for our users.  For this reason, we must prohibit certain kinds of activities and conduct.  You agree not to use the Services in any way, or engage in any conduct that:

• Is unlawful, illegal or unauthorized;
• Is defamatory of any other person;
• Is obscene, sexually explicit or offensive;
• Advertises or promotes any other product or business;
• Is likely to harass, upset, embarrass, alarm or annoy any other person;
• Is likely to disrupt our service in any way;
• Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
• Infringes any copyright, trademark, trade secret, or other proprietary right of any other person; or
• Advocates, promotes or assists any violence or any unlawful act.

6. Indemnification

You agree to defend, indemnify and hold harmless ScholarMatch, and its parent company, affiliates, officers, directors, employees and agents (collectively, “Indemnitees”) against any lawsuit, liability, injuries, damages or expense (including attorneys’ fees) arising from (a) your use of or alleged use of the Services, (b) your breach of these Terms or any applicable law or regulation, (c) your violation of any third party right, including without limitation, intellectual property, publicity, confidentiality, property or privacy rights or (d) any disputes or issues between you and any third party.  Indemnitees reserve the right to control the defense and settlement of any third-party claim for which you indemnify Indemnitees under these Terms and you will assist us in exercising such rights.

7. Disclaimer of Warranties

WE PROVIDE THE SERVICES ON AN ‘AS IS’ AND ‘AS AVAILABLE’ BASIS WITHOUT ANY PROMISES, REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED.  Although ScholarMatch seeks to maintain safe, secure, accurate, and well-functioning services, we cannot guarantee the continuous operation of or access to our Services, and there may at times be inadvertent technical or factual errors or inaccuracies. To the fullest extent permitted by applicable law, ScholarMatch hereby excludes all warranties, whether express or implied, including any warranties of merchantability, fitness for a particular use, or that the Services is of satisfactory quality, non-infringing, is free of defects, or is able to operate on an uninterrupted basis, or that the use of the Services by you is in compliance with laws or that any information that you transmit in connection with the Services will be successfully, accurately or securely transmitted. ScholarMatch does not guarantee the accuracy of, and disclaims all liability for, any errors or other inaccuracies in the information, content, recommendations, and materials made available through the Services.

8. Limitation of Liability

NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER SCHOLARMATCH NOR ANY OF THE INDEMNITEES ARE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS, LOST SAVINGS, OR LOSS OF DATA) OR LIABILITIES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY MANNER TO THE SERVICES, AND/OR ANY LINKED WEBSITE, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES.  YOUR SOLE REMEDY WITH RESPECT TO THE SERVICES IS TO STOP USING THE SERVICES, AS APPLICABLE.

SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES AND/OR LIABILITIES, SO CERTAIN OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

9. Governing Law

These Terms shall be governed by the laws of the State of California, without regard to its choice of law principles.  In the event arbitration does not apply, we and you irrevocably submit to the jurisdiction of the state and federal courts of San Francisco County, California with regard to any dispute arising out of or relating to these Terms.  YOU WAIVE YOUR RIGHT TO A CLASS ACTION OR TO A JURY IN THE EVENT OF ANY DISPUTE THAT PROCEEDS IN STATE OR FEDERAL COURT.

10. Dispute Resolution

YOU HAVE READ THIS SECTION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND SCHOLARMATCH. YOU UNDERSTAND THAT YOU HAVE THE RIGHT TO REJECT THIS PROVISION AS PROVIDED IN THE SECTION ENTITLED “OPT OUT OF ARBITRATION” BELOW.

We want to resolve amicably any claims or concerns you may have regarding the Services.  Therefore, before either you or we can initiate a legal action, unless it is for injunctive relief, we shall first attempt to contact the other party to discuss a resolution.  You must submit your claim in writing by sending an email to the email address below.  We will contact you at the email address you provide when you register to use the Services. Neither Party may initiate either arbitration or other legal action for thirty (30) days after receipt of the claim.

If we cannot resolve the matter amicably, unless you have opted out as set forth below, you and we agree that any dispute, claim or controversy between you and us arising in connection with or relating in any way to these Terms or the Services (“Dispute”) will be determined by mandatory binding individual (not class) arbitration.  You and ScholarMatch further agree that the arbitrator shall have the exclusive power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of this arbitration provision or to the arbitrability of any claim or counterclaim.  Arbitration is more informal than a lawsuit in court.  THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.  There may be more limited discovery than in court.  The arbitrator must follow these Terms and can award the same damages and relief as a court (including attorney fees), except that the arbitrator may not award any relief, including declaratory or injunctive relief, benefiting anyone but the parties to the arbitration.  This arbitration provision will survive termination of these Terms.

You and ScholarMatch both agree that nothing in this Arbitration Provision will be deemed to waive, preclude, or otherwise limit either of our rights, at any time, to (1) bring an individual action in a U.S. small claims court; (2) bring an individual action seeking only temporary or preliminary individualized injunctive relief in a court of law, pending a final ruling from the arbitrator; or (3) any claim by ScholarMatch in a court of law for violation of its intellectual property rights.  In addition, this arbitration provision does not stop you or us from bringing issues to the attention of federal, state or local agencies.  Such agencies can, if the law allows, seek relief against us on your behalf (or vice versa).

Either you or we may start arbitration proceedings.  Any arbitration between you and ScholarMatch will take place under the Consumer Arbitration Rules of the American Arbitration Association (“AAA”) then in force (the “AAA Rules”), as modified by this arbitration provision.  You and ScholarMatch agree that the Federal Arbitration Act applies and governs the interpretation and enforcement of this provision (despite the choice of law provision above).  The AAA Rules, as well as instructions on how to file an arbitration proceeding with the AAA, appear at adr.org, or you may call the AAA at 1-800-778-7879.

Any arbitration hearings will take place in San Francisco County, California.  If the claim being arbitrated is for $25,000 or less, either you or ScholarMatch may choose to have the arbitration take place without an in-person hearing (and the other party will be bound by that choice and hereby agrees to proceed without an in-person hearing).  In the event that either party elects to proceed without an in-person hearing on a claim for $25,000 or less, the arbitrator shall decide whether the arbitration will be conducted (1) solely on the basis of documents submitted to the arbitrator; or (2) through a non-appearance based telephonic hearing.

Each party shall pay arbitration fees in accordance with the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.  The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

If this arbitration provision is invalidated in whole or in part, the parties agree that the exclusive jurisdiction and venue described in Section 9 shall govern any claim in court arising out of or related to the Terms.

OPT-OUT OF ARBITRATION: You may opt out of the binding arbitration described in this section by sending ScholarMatch written notice of your desire to do so by email at info@scholarmatch.org or regular mail at Attn: ScholarMatch, Inc., 849 Valencia Street San Francisco, CA 94110, within thirty (30) days following the date you first use our Services, (such notice, an “Arbitration Opt-out Notice”). If you don’t provide ScholarMatch with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except  as expressly set forth above.

11. Mass Action Waiver

You and ScholarMatch expressly waive the right to have any Dispute brought, heard, administered, resolved, or arbitrated as a Mass Action (as defined herein), and neither an arbitrator nor an arbitration provider shall have any authority to hear, arbitrate, or administer any mass action or to award relief to anyone but the particular individual who initiates the claim to be arbitrated. The parties also expressly waive the right to seek, recover, or obtain any non-individual relief. The parties agree that the definition of a “Mass Action” includes, but is not limited to, instances in which you or ScholarMatch are represented by a law firm or collection of law firms that has filed 50 or more arbitration demands of a substantially similar nature against the other party within 180 days of the arbitration demand filed on your or ScholarMatch’s behalf, and the law firm or collection of law firms seeks to simultaneously or collectively administer and/or arbitrate all the arbitration demands in the aggregate. Notwithstanding anything else in these Terms or this Dispute Resolution provision, this Mass Action Waiver does not prevent you or ScholarMatch from participating in a mass settlement of claims.

Notwithstanding any provision to the contrary in AAA Rules, the arbitrator shall be empowered to determine whether any party or parties bringing any claim has filed or participated in a Mass Action in violation of the Mass Action Waiver.  Either party shall raise with the arbitrator or arbitration provider an assertion that one or more claims have been filed in violation of the Mass Action Waiver. If such a dispute arises before an arbitrator has been appointed, the parties agree that (i) a panel of three arbitrators shall be appointed to resolve only disputes concerning whether the parties bringing any claim has filed or participated in a Mass Action in violation of the Mass Action Waiver, each party shall select one arbitrator from the arbitration provider’s roster to serve as a neutral arbitrator, and those two arbitrators shall appoint a third neutral arbitrator (in the event that the parties’ arbitrators cannot agree on a third arbitrator, the arbitration provider will select the third arbitrator); (ii) ScholarMatch shall pay any administrative fees or costs incidental to the appointment of arbitrators under this Mass Action Waiver provision, as well as any fees or costs that would not be incurred in a court proceeding, such as payment of the fees of the arbitrators, as well as room rental; (iii) the arbitrators shall issue a written decision with findings of fact and conclusions of law; and (iv) any further arbitration proceedings or assessment of arbitration-related fees for any claims alleged to be part of a Mass Action shall be stayed pending the arbitrators’ resolution of the parties’ dispute. If the arbitrator or panel of arbitrators determines that a party has violated the Mass Action Waiver, then, in addition to any other available remedies, the other party shall have the opportunity to opt out of arbitration within 30 days of the arbitrator’s or panel of arbitrator’s decision.

12. No Class Actions

NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS EVEN IF THE DISPUTE OR DISPUTES THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN A COURT AS CLASS REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT. Unless all parties to the arbitration consent in writing, no party to the arbitration may join, consolidate, or otherwise bring claims for or on behalf of two or more individuals or unrelated corporate entities in the same arbitration unless those persons are parties to a single transaction. Unless consented to in writing by all parties to the arbitration, an award in arbitration shall determine the rights and obligations of such parties only, and only with respect to the claims in arbitration, and shall not (a) determine the rights, obligations, or interests of anyone other than all parties to the arbitration, or resolve any Dispute of anyone other than any such party; nor (b) make an award for the benefit of, or against, anyone other than any such party. No administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this specific paragraph, and any attempt to do so, whether by rule, policy, arbitration decision or otherwise, shall be invalid and unenforceable. If this Section 12 is held unenforceable in its entirety, then the entirety of Sections 10, 11 and 12 hereof will be deemed void. Except as provided in the preceding sentence, Sections 10, 11 and 12 will survive any termination of these Terms.

13. Termination

These Terms are effective unless and until terminated by ScholarMatch.  You may discontinue any further use of the Services, but these Terms will continue to apply to your use of the Services prior to such discontinuance.  We also may terminate or suspend these Terms, at any time, without notice and accordingly deny you access to the Services, for any reason, including without limitation, if at our sole discretion you fail to comply with any provision of these Terms or your use is harmful to the interests of another user of the Services.  Upon any termination of the Terms by either you or us, you must promptly cease using the Services. Sections 6 through 13 will continue to apply even after the Terms and the Services have been terminated or suspended.

14. Intellectual Property Claims

We respect the intellectual property rights of others and require that users of our Services do the same.  In accordance with the Digital Millennium Copyright Act of 1998, Title 17 of the United States Code, Section 512 (“DMCA”), we will respond promptly to claims of copyright infringement that are reported to the agent that we have designated to receive notifications of claims infringement (its “Designated Agent”).  Our Designated Agent is:

ScholarMatch, Inc.

Attention: Intellectual Property Claims

849 Valencia Street

San Francisco, CA 94110

To be sure the matter is handled immediately, your written notice must:

• Contain your physical or electronic signature;
• Identify the copyrighted work or other intellectual property alleged to have been infringed;
• Identify the allegedly infringing material in a sufficiently precise manner to allow us to locate that material;
• Contain adequate information by which we can contact you (including postal address, telephone number, and e-mail address);
• Contain a statement that you have a good faith belief that use of the copyrighted material or other intellectual property is not authorized by the owner, the owner’s agent or the law;
• Contain a statement that the information in the written notice is accurate; and
• Contain a statement, under penalty of perjury, that you are authorized to act on behalf of the copyright or other intellectual property right owner.

Unless the notice pertains to copyright or other intellectual property infringement, the Agent will be unable to address the listed concern.

15. General

These Terms, including the Privacy Policy and other policies incorporated herein, constitute the entire and only agreement between you and ScholarMatch with respect to the subject matter of these Terms, and supersede any and all prior or contemporaneous agreements, representations, warranties and understandings, written or oral, with respect to the subject matter of these Terms.  If any provision of these Terms is found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.  These Terms may not be changed, waived or modified except by ScholarMatch as provided herein or otherwise by a written instrument signed by ScholarMatch.  Neither these Terms nor any right, obligation or remedy hereunder is assignable, transferable, delegable or sublicensable by you except with ScholarMatch’s prior written consent, and any attempted assignment, transfer, delegation or sublicense shall be null and void. ScholarMatch may assign, transfer or delegate these Terms or any right or obligation or remedy hereunder in its sole discretion.  No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained in these Terms is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.

16. Notice for California Users

Under California Civil Code Section 1789.3, users of ScholarMatch from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Platforms of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact the California Department of Consumer Affairs at dca@dca.ca.gov.

17. Contact Us

If you have any questions regarding our Services, you can email us at info@scholarmatch.org.