Vanilla Terms of Service
Last Modified: Aug 01, 2023
ARBITRATION NOTICE: YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION OR A TRIAL BY JURY IN SECTION 18, BELOW, WHERE WE ALSO EXPLAIN SOME EXCEPTIONS AND HOW YOU CAN OPT OUT OF ARBITRATION IF YOU CHOOSE. IT IS IMPORTANT THAT YOU READ THE TERMS OF THIS AGREEMENT BEFORE USING OR PURCHASING VANILLA SERVICES.
Welcome to Vanilla! Vanilla Technologies Inc. (“Vanilla,” “we,” “our” or “us”) provides an online software-as-a-service platform known as Vanilla Document Builder, which provides various functionality and through which customers may create and modify self-help estate planning forms for their own personal use (the “Documents”).
1. Terms of Service
These terms of service (“Terms”), together with any other terms, conditions, or policies linked to in these Terms, are a legally binding agreement between you and Vanilla that govern your access to and use of Vanilla’s websites, services, software, tools, products, property, features, and functionality made available by Vanilla, including without limitation, Vanilla Document Builder, Vanilla Materials, and Documents (collectively, “Services”). Therefore, please carefully review these Terms. If you do not agree with these Terms, you may not use our Services. If there is a conflict between these Terms and any other terms or conditions covering a specific area of the Services, the latter terms and conditions shall control unless they expressly state otherwise. “You” and “your” refer to any customer or user of, or visitor to, the Services.
We reserve the right to modify these Terms by publishing an updated version of them to https://www.justvanilla.com (the “Website”). If we determine we need to amend these Terms, we will provide you advance notice of such changes to the Terms through the Services or through other measures that we determine are appropriate. If you indicate your acceptance to such changes to the Terms after being notified of them, you agree to be bound by the revised Terms. If you do not accept the changes, you are not permitted to use the Services.
We may also modify the Services. We reserve the right, at our sole discretion, to change the URL of the Website or modify, suspend, or discontinue all or part of the Services without notice to you.
YOU AGREE THAT BY USING THE SERVICES YOU ARE AT LEAST 18 YEARS OF AGE AND YOU ARE LEGALLY ABLE TO ENTER INTO A CONTRACT. You are legally and financially responsible for all actions taken using or accessing the Services, including the transactions or other actions of anyone you allow to access the Services or your account.
YOU UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT YOUR USE OF THE SERVICES DOES NOT CREATE ANY ATTORNEY-CLIENT RELATIONSHIP BETWEEN YOU AND VANILLA, NOR ENTITLE YOUR COMMUNICATIONS WITH VANILLA TO THE ATTORNEY-CLIENT PRIVILEGE. The only attorney-client relationship that you may enter into as a result of the Services is through an Outside Attorney Legal Engagement (defined below). Such attorney-client relationship, if any, will be between you and an attorney separate from Vanilla, not between you and Vanilla.
Vanilla provides online tools, self-help forms, resources, help text, FAQs, tooltips, work flows, rule based logic and forms (collectively, the “Vanilla Materials”) to assist and guide you in preparing, executing, and storing your own legal documents and information. We endeavor to keep the Vanilla Materials up-to-date.
The Services and Vanilla Materials are provided for your private use and do not constitute legal advice. No legal tool can be designed to work for every user or every circumstance, and you understand that you must determine for yourself whether the Services are right for you. The Services are not a substitute for the advice or services of an attorney. If you need legal advice, please consult a licensed attorney in your jurisdiction.
YOU UNDERSTAND AND ACCEPT THAT VANILLA IS NOT A LAW FIRM, AND DOES NOT PROVIDE LEGAL ADVICE OR LEGAL SERVICES. VANILLA WORKS WITH LOCAL COUNSEL IN EACH JURISDICTION, BUT THE DOCUMENTS GENERATED BY THE SERVICES ARE ONLY INTENDED TO BE SELF-HELP FORMS FOR YOU TO USE AND ARE NOT THE RESULT OF ANY LEGAL REVIEW OR ANALYSIS BY VANILLA. Vanilla does not review your information or the Documents for legal accuracy or sufficiency (though we may review the Documents for quality assurance or to improve the Services), to provide opinions about your selection of forms, to apply the law to the facts of your particular circumstances, or to provide you legal advice (except as may be done by an Outside Attorney solely as part of an Outside Attorney Legal Engagement as defined below). The Documents are not intended to be completed, generated, or used by anyone other than you, and your spouse if they generate Documents as well.
You will be required when using the Services to review the information you have provided. You agree to carefully review that information to ensure that it is correct, and to carefully read all version(s) of the Documents for completeness, consistency, spelling, and determining whether they achieve your intended results, prior to executing them. You understand that executing them will have a legal impact on you and your beneficiaries. You agree to carefully review each Document before signing it, and follow the execution and notarization instructions that Vanilla may provide you. You agree to be solely responsible for the Documents that you sign. Vanilla has no responsibility for the accuracy, proper execution, or storage of the Documents.
From time to time, Vanilla may provide you access to pre-production versions of the Services, or features that are identified as beta, pilot, limited release, preview, non-production, evaluation, or similar versions (“Beta Services”). Beta Services are for evaluation purposes only and not for production use. Vanilla is under no obligation to maintain, support, update, or provide error corrections for the Beta Services. Vanilla may discontinue Beta Services at any time in Vanilla’s sole discretion and reserves the right to never make them generally available. VANILLA PARTIES WILL HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF, OR IN CONNECTION WITH, YOUR USE OF A BETA SERVICE. THE BETA SERVICES ARE PROVIDED “AS IS” AND AS AVAILABLE, AND ARE EXCLUSIVE OF ANY WARRANTY WHATSOEVER. WITHOUT LIMITING THE FOREGOING, VANILLA PARTIES EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
3. Outside Attorney Engagements
VANILLA PROVIDES INFORMATION AND SOFTWARE ONLY. VANILLA IS NOT A “LAWYER REFERRAL SERVICE” AND DOES NOT PROVIDE LEGAL ADVICE OR PARTICIPATE IN ANY LEGAL REPRESENTATION. VANILLA IS NOT A LAW FIRM OR A SUBSTITUTE FOR AN ATTORNEY OR LAW FIRM. VANILLA DOES NOT ENDORSE OR RECOMMEND ANY ATTORNEY OR MAKE ANY WARRANTY AS TO THE QUALIFICATIONS OR COMPETENCY OF ANY ATTORNEY.
4. Not Tax or Financial Advice
Vanilla does not provide tax advice or financial advice for any purpose. Any financial or tax information provided by Vanilla is intended only for general education and is not to be construed or relied on as tax or financial advice. Any graphics or content presented by the Services regarding your estate plan or financial assets are only made available for informational purposes. You should consult with your tax advisor on matters involving taxation and tax planning, and your attorney for matters involving trust and estate planning, the strengths and weaknesses of your estate plan, its legality and enforceability, charitable giving, and all other legal matters.
Note that the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder, and state laws, can change at any time, which could significantly impact the advantages and disadvantages of any tax or estate planning strategy.
The Services may require that you create an account. To create an account, you may be asked to provide your name, email address, a username, and a password. You agree to provide complete, accurate, and up-to-date information in connection with your account. Vanilla reserves the right to suspend or terminate your account if any information provided by you proves to be inaccurate, not current, or incomplete. We may from time to time ask you for additional identification information as may be required for regulatory or other reasons.
You are solely responsible for any associated content, information, or materials provided or used in connection with your account. Vanilla is not liable to you or any third party for any acts or omissions by anyone using, or otherwise in connection with, your account or that occur as a result of any information associated with your account being lost or compromised. You are responsible for maintaining the confidentiality of any account information, user names, logins, passwords, and security questions and answers that you use to access any page or feature in the Services, and for logging off of your account and any protected areas of the Services. Further, you are fully responsible for all activities occurring under your accounts, user names, logins, passwords, and security questions and answers that result from your negligence, carelessness, misconduct, or failure to use or maintain appropriate security measures such as multi-factor authentication. If you discover or otherwise suspect any unauthorized use of, or security issues related to, your account, you agree to notify Vanilla immediately.
If you and your legal spouse elect to use Vanilla Document Builder together, you understand and agree that your information will be accessed with a single user ID and password, and that you will have access to each other’s estate plan information.
6. Data and Documents Usage
Vanilla does not claim ownership of any Documents that you create or upload and store using our Services. By using, creating, editing, uploading, or otherwise accessing or engaging with any Documents, you authorize Vanilla to use such Documents in connection with providing Services to you.
You acknowledge and agree that Vanilla may, except to the extent prohibited by applicable law, preserve these Documents as well as access, retain, and disclose any information or materials on or in the Services in Vanilla’s possession in connection with your use of the Services including, without limitation, your account information and any Documents, if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to accomplish any of the following: (1) to comply with legal process, applicable laws, or government requests; (2) to enforce these Terms; (3) to respond to claims that any content violates the rights of third parties; or (4) to protect the rights, property, or personal safety of Vanilla, its users, and the public. You understand that the technical processing and transmission of the Service, including your Documents and other content, may involve transmissions over third party networks and changes to conform and adapt to technical requirements of connecting networks or devices. You agree that Vanilla has no responsibility or liability for deleting or failing to store any Documents or other content maintained or uploaded in the Services.
7. Sharing of Your Data with Your Advisor
The data that you input into the Services will shared with your wealth advisor’s firm (your “Advisor”), through the Vanilla platform, and populate any profile maintained for you by your Advisor in the Vanilla platform. The Services will enable your Advisor to know about your estate plan and your usage of the Services, and to access, download, read, copy, edit and upload information to the Services. By using the Services, you agree to the sharing of your data with your Advisor. If you do not want your Advisor to have this data, please do not use the Services.
8. Payment and Refund Policy
Vanilla will provide a refund (via its third-party payment processors) for your purchase of access to the Vanilla Document Builder for thirty (30) days from the date of purchase, provided that you have not approved any final Document(s) for printing and shipping. If there are issues with the Document(s) within Vanilla’s control, Vanilla will reprocess, print, and ship corrected documents within thirty (30) days of the date you provide Vanilla written notice of any such issues.
9. Third-Party Services
Vanilla Content. Unless otherwise indicated in writing by us, the Services and all content and other materials contained therein, including, without limitation, our logo(s) and all designs, text, graphics, video, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, “Vanilla Content”) are the proprietary property of Vanilla, or our respective partners, affiliates, or licensors, as applicable. Notwithstanding anything to the contrary in these Terms, the Services and Vanilla Content may include software components provided by Vanilla or its affiliates or a third party that are subject to separate terms, in which case those terms shall govern such software components. All other trademarks, registered trademarks, product names, and other names or logos mentioned on the Services are the property of their respective owners and may not be copied, imitated, or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any products, services, processes, or other information by name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation by Vanilla. For purposes of clarification, Vanilla shall be and remain the sole owner of all rights, title, and interest in and to the software and tools provided by Vanilla, the Services, any related promotional materials, and any other programming, script, algorithms, technology, and/or code supplied by Vanilla and/or its contractors and suppliers, including, without limitation, all copyright, trademark, patent, trade-secret rights, and related rights therein. Vanilla reserves all rights not expressly granted herein.
User Content. If you upload, submit, post, or contribute any information, materials, or other content using our Services (“User Content”), including in connection with your account, you agree that you, and not Vanilla, have full responsibility for the User Content, including its non-infringement of third party rights, legality, reliability, accuracy, and appropriateness. User Content must comply with these Terms. We are not responsible or liable to any third party for the content, accuracy, or appropriateness of any User Content posted or provided by you. You understand and acknowledge that any User Content that violates any of our policies may be modified, edited, or removed by Vanilla in its sole and absolute discretion. By making available any User Content on or through the Services, you grant to Vanilla a universe-wide, royalty-free license in perpetuity to crop, resize, publicly display, publicly perform, distribute, broadcast, transmit, prepare derivative works based upon, and otherwise use and exploit such User Content for purposes of operating or providing the Services and for marketing and promoting Vanilla and Vanilla’s business. Although we are not required to monitor any User Content, we may, in our sole discretion, remove User Content at any time and for any reason without notice.
Feedback. In the event you choose to provide to Vanilla any feedback, comments, and/or suggestions for improvements to, or errors and issues on or with, the Services (“Feedback”), you acknowledge and agree that your contribution of Feedback does not grant you any right, title, or interest in the Services or in any such Feedback, nor does such Feedback entitle you to any compensation whatsoever. Wherever necessary, you hereby assign to Vanilla any and all right, title, and interest (including without limitation, any patent, copyright, trademark, know-how, moral rights and any other intellectual property rights) that you may have in and to any and all Feedback.
Infringing Content. If you believe that any content made available through the Services violates your copyright, please submit a notification in accordance with the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512 to Vanilla’s DMCA Agent identified below. Vanilla will respond to all such notices in accordance with the DMCA.
Vanilla Technologies Inc.
310 South Main Street
Salt Lake City, Utah 84101
11. Representations and Warranties
By using the Services, you represent, warrant, and agree that:
- You are located in the United States. You may not use our Services if you are not located in the United States of America;
- Your use of the Services does not violate the rights of any third party or any applicable agreement or law; and
12. Prohibitions and Restrictions
You agree that you will NOT use the Services to do or attempt to do any of the following:
- Infringe upon the intellectual property or other rights of any person or entity
- Violate any applicable laws, rules, regulations, or terms
- Attempt to reverse engineer, tamper with, use, or access non-public areas of the Services
- Attempt to bypass, remove, circumvent, impair, or interfere with technological measures to protect the Services or any content thereon
- Collect, scrape, harvest, or store any data or personally identifiable information from the Services from other users of the Services
- Impersonate or misrepresent an affiliation with any person or entity
- Use the Services in any manner that is offensive, violent, hateful, discriminatory, unethical, disruptive, or dangerous
- Build a product or service using similar ideas, features, functions, or graphics of the Services
- Try to change, break, decompile, decode, overwhelm, burden, damage, disrupt, impair, upload any virus or harmful code to, or negatively impact the Services or any other party’s access to the Services
- Sell, lease, rent, sublicense, distribute, or otherwise provide the Services or any part thereof to any third party
- Use the Services in any way that is not permitted by applicable terms
- Use the Services for a commercial purpose
- Encourage or enable others to engage in any of the foregoing
13. Export Controls and Sanctions
You are not a Sanctioned Person under U.S. law. You acknowledge and understand that the Services and items offered through the Services are subject to U.S. export control and sanctions laws and regulations, including, without limitation, the Export Administration Regulations and the regulations, rules, and executive orders administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) (collectively, the “Export Controls and Sanctions Laws”). You represent that you are not a Sanctioned Person and agree not to take any action that will not violate and will not cause anyone, including, without limitation, Vanilla, to be in violation of any Export Controls and Sanctions Laws. For purposes of these Terms, “Sanctioned Person” means any government, country, corporation, or other entity, group, or individual with whom or which Export Controls and Sanctions Laws prohibit or restrict a U.S. person from engaging in transactions, and includes, without limitation, any person organized, located, or resident in a country or region that is the subject or target of comprehensive economic sanctions, and any individual or corporation or other entity that appears on any U.S. Government sanctions or restricted party lists including but not limited to the OFAC List of Specially Designated Nationals and Blocked Persons (the “SDN List”), or the Entity List or Denied Persons List of the U.S. Department of Commerce, or any person owned or controlled by any of the foregoing.
14. Warranty Disclaimer
Vanilla provides the Services “as is.” YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, VANILLA MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND IN CONNECTION WITH THE SERVICES, INCLUDING THE DOCUMENTS, THIRD PARTY SERVICES, AND ANY INFORMATION OR MATERIALS PROVIDED OR MADE AVAILABLE BY VANILLA. THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. VANILLA, VANILLA’S AFFILIATES, AND ALL OF THEIR RESPECTIVE MEMBERS, STOCKHOLDERS, EMPLOYEES, CONSULTANTS, LAWYERS, OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES, SUCCESSORS, OR ASSIGNS (collectively, “VANILLA PARTIES”) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
NONE OF THE VANILLA PARTIES REPRESENT OR WARRANT THAT (A) THE USE OF ANY OF THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE, WILL BE AVAILABLE WHEN YOU DESIRE TO UTILIZE THE SERVICES, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA, (B) ANY STORED DATA OR DOCUMENTS WILL BE ACCURATE, SECURE, OR RELIABLE, OR (C) ERRORS OR DEFECTS WILL BE CORRECTED; (D) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; OR (E) THE QUALITY OF ANY PRODUCTS, SERVICES, AND DOCUMENTS WILL MEET YOUR EXPECTATIONS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE VANILLA PARTIES DISCLAIM ALL REPRESENTATIONS, WARRANTIES, PROMISES, OR GUARANTEES OF ANY KIND WHATSOEVER AS TO THE SERVICES OR THIRD PARTY SERVICES, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE. THE VANILLA PARTIES SHALL HAVE NO RESPONSIBILITY FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR UPLOAD OF ANY CONTENT, MATERIALS, INFORMATION, OR SOFTWARE.
15. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ANY VANILLA PARTY BE LIABLE TO YOU FOR ANY LOSS, DAMAGE, OR INJURY OF ANY KIND INCLUDING, WITHOUT LIMITATION, ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE LOSSES OR DAMAGES, OR DAMAGES FOR SYSTEM FAILURE OR MALFUNCTION OR LOSS OF PROFITS, DATA, USE, BUSINESS, OR GOOD-WILL OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE SERVICES. NO VANILLA PARTY SHALL BE LIABLE FOR ANY DAMAGES RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE SERVICES; (B) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM ANY DATA, INFORMATION, DOCUMENTS, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OF DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; (E) ANY MODIFICATIONS, ALTERATION, OMISSION, DELETION, OR INSERTION YOU MAKE TO ANY DOCUMENTS, OR INFORMATION PRODUCED BY OR RELATED TO THE SERVICES; (F) THE FAILURE TO CONSULT WITH A LICENSED ATTORNEY, ACCOUNTANT, AND OTHER LEGAL AND FINANCIAL ADVISORS PRIOR TO, DURING, AND AFTER THE USE OF THE SERVICES; OR (G) ANY OTHER MATTER RELATING TO OR RESULTING, DIRECTLY OR INDIRECTLY, FROM THE SERVICES OR DOCUMENTS.
IN NO EVENT WILL ANY VANILLA PARTY’S CUMULATIVE DIRECT AND INDIRECT LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, EXCEED ONE HUNDRED DOLLARS ($100.00). THERE ARE NO THIRD PARTY BENEFICIARIES TO THESE TERMS.
THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THESE TERMS HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT, INDEMNIFICATION, TORT, STRICT LIABILITY, STATUTE, OR ANY OTHER LEGAL OR EQUITABLE THEORY AND WHETHER OR NOT THE VANILLA PARTIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES AND LIABILITIES PROVIDED IN THIS SECTION, SO SOME OF THE ABOVE LIMITATIONS AND DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT APPLICABLE LAW DOES NOT PERMIT VANILLA PARTIES TO DISCLAIM CERTAIN WARRANTIES OR LIMIT CERTAIN LIABILITIES, THE EXTENT OF VANILLA PARTIES’ LIABILITY AND THE SCOPE OF ANY SUCH WARRANTIES WILL BE AS PERMITTED UNDER APPLICABLE LAW.
You will indemnify the Vanilla Parties for your use of the Services. To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold harmless Vanilla and the Vanilla Parties from and against all actual or alleged claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses), and costs (including, without limitation, court costs, costs of settlement, and costs of or associated with pursuing indemnification and insurance), of every kind and nature whatsoever arising out of or related to these Terms or your use of the Services, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract, or otherwise (collectively, “Claims”) that are caused by, arise out of, or are related to: (a) your use or misuse of the Services, (b) your violation of these Terms; (c) your violation of any law, regulatory requirement, judgment, order, or decree; (d) your violation of any rights of any third party; (e) the validity or content of the Documents; and (f) any breach or non-performance of any representation, warranty, covenant, or agreement made by you.
17. Breach and Termination
If you breach these Terms, or any of our other terms that apply to you, we may, in addition to all other remedies available at law or in equity, take action against you, including, among other things, suspending or denying your account access to our Services, without notice or further obligation or responsibility to you.
18. Dispute Resolution; Agreement to Arbitrate
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
a. Informal dispute resolution procedure. If a dispute arises between you and Vanilla, we are committed to working with you to reach a reasonable resolution. For any such dispute, both parties acknowledge and agree that they will first make a good faith effort to resolve it informally before initiating any formal dispute resolution proceeding in arbitration or otherwise. This requires first sending a written description of the dispute to the other party. For any dispute you initiate, you agree to send the written description of the dispute along with the email address associated with your account to the following email address: firstname.lastname@example.org. For any dispute that Vanilla initiates, we will send our written description of the dispute to the email address associated with your Vanilla account. The written description must be on an individual basis and provide, at minimum, the following information: your name; a description of the nature or basis of the claim or dispute; and the specific relief sought. If the dispute is not resolved within sixty (60) days after receipt of the written description of the dispute, you and Vanilla agree to the further dispute resolution provisions below.
The aforementioned informal dispute resolution process is a prerequisite and condition precedent to commencing any formal dispute resolution proceeding. The parties agree that any relevant limitations period and filing fees or other deadlines will be tolled while the parties engage in this informal dispute resolution process.
b. Mutual arbitration agreement. You and Vanilla agree that all claims, disputes, or disagreements that may arise out of the interpretation or performance of the Agreement, which includes these Terms of Service (including its formation, performance, and breach) or payments by or to Vanilla, or that in any way relate to the provision or use of the Services, your relationship with Vanilla, or any other dispute with Vanilla, shall be resolved exclusively through binding arbitration in accordance with this Section 18 (collectively, the “Arbitration Agreement“). This includes claims that arose, were asserted, or involve facts occurring before the existence of this Arbitration Agreement or any prior agreement as well as claims that may arise after the termination of this Arbitration Agreement, in accordance with the notice and opt-out provisions set forth in Section 18’s (j) and (k)). This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA“) in all respects and evidences a transaction involving interstate commerce. You and Vanilla expressly agree that the FAA shall exclusively govern the interpretation and enforcement of this Arbitration Agreement. If for whatever reason the rules and procedures of the FAA cannot apply, the state law governing arbitration agreements in the state in which you reside shall apply.
Except as set forth in this Section 18(b), the arbitrator or arbitration body, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of the Terms and this Arbitration Agreement, including, but not limited to any claim that all or any part thereof are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment). The arbitrator or arbitration body shall be empowered to grant whatever relief would be available in a court under law or in equity.
Notwithstanding the parties’ decision to resolve all disputes through arbitration, each party retains the right to (i) elect to have any claims resolved in small claims court on an individual basis for disputes and actions within the scope of such court’s jurisdiction, regardless of what forum the filing party initial chose; (ii) bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” in this context means patents, copyrights, moral rights, trademarks, and trade secrets and other confidential or proprietary information, but not privacy or publicity rights); and (iii) seek a declaratory judgment, injunction, or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may be brought in small claims court. Seeking such relief shall not waive a party’s right to arbitration under this agreement, and any filed arbitrations related to any action filed pursuant to this paragraph shall automatically be stayed pending the outcome of such action.
You and Vanilla agree to submit to the personal jurisdiction of any federal or state court in Delaware in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator; and in connection with any such proceeding, further agree to accept service of process by U.S. mail and hereby waive any and all jurisdictional and venue defenses otherwise available.
Except as set forth in Section 18(c) below, if any provision of this Arbitration Agreement is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions thereof remain in full force and effect.
THE PARTIES UNDERSTAND THAT ARBITRATION MEANS THAT AN ARBITRATOR AND NOT A JUDGE OR JURY WILL DECIDE THE CLAIM, AND THAT RIGHTS TO PREHEARING EXCHANGE OF INFORMATION AND APPEALS MAY BE LIMITED IN ARBITRATION. YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU AND VANILLA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
c. Class arbitration and collective relief waiver. YOU AND VANILLA ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT AS SET OUT OTHERWISE IN THIS SECTION 18(c) AND SECTION 18(g) BELOW, ANY ARBITRATION SHALL BE CONDUCTED IN AN INDIVIDUAL CAPACITY ONLY AND NOT AS A CLASS OR OTHER CONSOLIDATED ACTION AND THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO RESOLVE AN INDIVIDUAL PARTY’S CLAIM, UNLESS VANILLA PROVIDES ITS CONSENT TO CONSOLIDATE IN WRITING.
“If there is a final judicial determination that either the Class Arbitration Action and Collective Relief Waiver or the provisions in Section 18(g) are not enforceable as to a particular claim or request for relief, then the parties agree that that particular claim or request for relief may proceed in court but shall be severed and stayed pending arbitration of the remaining claims. This provision does not prevent you or Vanilla from participating in a class-wide settlement of claims.”
d. Arbitration rules. The arbitration will be administered by National Arbitration and Mediation (“NAM”) and resolved before a single arbitrator. If NAM is not available to arbitrate, the parties will select an alternative arbitration provider, but in no event shall any arbitration be administered by the American Arbitration Association. Except as modified by this “Dispute Resolution” provision, NAM will administer the arbitration in accordance with the NAM Comprehensive Dispute Resolution Rules and Procedures, Fees For Disputes When One of the Parties is a Consumer and the Mass Filing Dispute Resolution Rules and Procedures in effect at the time any demand for arbitration is filed with NAM, excluding any rules or procedures governing or permitting class or representative actions. The applicable NAM rules and procedures are available at www.namadr.com or by emailing National Arbitration and Mediation’s Commercial Dept at email@example.com.
e. Initiating arbitration. Only after the parties have engaged in a good-faith effort to resolve the dispute in accordance with the Informal Dispute Resolution Procedure provision, and only if those efforts fail, then either party may initiate binding arbitration as the sole means to resolve claims using the procedures set forth in the applicable NAM rules. If you are initiating arbitration, a copy of the demand shall also be emailed to firstname.lastname@example.org. If Vanilla is initiating arbitration, it will serve a copy of the demand to the email address associated with your Vanilla account. The arbitrator has the right to impose sanctions in accordance with the NAM rules and procedures for any frivolous claims or submissions the arbitrator determines have not been filed in good faith, as well as for a party’s failure to comply with the Informal Dispute Resolution Procedure contemplated by this Agreement.
f. Arbitration location and procedure. The arbitration shall be conducted in the State of New York, unless you and Vanilla otherwise agree or unless the designated arbitrator determines that such venue would be unreasonably burdensome to any party, in which case the arbitrator shall have the discretion to select another venue. If the amount in controversy does not exceed $10,000 and you do not seek injunctive or declaratory relief, then the arbitration will be conducted solely on the basis of documents you and Vanilla submit to the arbitrator, unless the arbitrator determines that a hearing is necessary. If the amount in controversy exceeds $10,000 or seeks declaratory or injunctive relief, either party may request (or the arbitrator may determine) to hold a hearing, which shall be via videoconference or telephone conference unless the parties agree otherwise.
Subject to the applicable NAM rules and procedures, the parties agree that the arbitrator will have the discretion to allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute. Unless otherwise prohibited by law, all arbitration proceedings will be confidential and closed to the public and any parties other than you and Vanilla (and each of the parties’ authorized representatives and agents), and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award (provided that the party seeking confirmation shall seek to file such records under seal to the extent permitted by law).
g. Batch arbitration. To increase the efficiency of administration and resolution of arbitrations, in the event 100 or more similar arbitration demands (those asserting the same or substantially similar facts or claims, and seeking the same or substantially similar relief) presented by or with the assistance or coordination of the same law firm(s) or organization(s) are submitted to NAM (or another arbitration provider selected in accordance with Section 18(d) if NAM is unavailable) against Vanilla within reasonably close proximity (“Mass Filing”), the parties agree (i) to administer the Mass Filing in batches of 100 demands per batch (to the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch will consist of the remaining demands) with only one batch filed, processed, and adjudicated at a time; (ii) to designate one arbitrator for each batch; (iii) to accept applicable fees, including any related fee reduction determined by NAM (or another arbitration provider selected in accordance with 18(d) if NAM is unavailable) in its discretion; (iv) that no other demands for arbitration that are part of the Mass Filing may be filed, processed, or adjudicated until the prior batch of 100 is filed, processed, and adjudicated; (v) that fees associated with a demand for arbitration included in a Mass Filing, including fees owed by Vanilla and the claimants, shall only be due after your demand for arbitration is included in a set of batch proceedings and that batch is properly designated for filing, processing, and adjudication; and (vi) that the staged process of batched proceedings, with each set including 100 demands, shall continue until each demand (including your demand) is adjudicated or otherwise resolved. Arbitrator selection for each batch shall be conducted to the greatest extent possible in accordance with the applicable NAM rules and procedures for such selection, and the arbitrator will determine the location where the proceedings will be conducted. You agree to cooperate in good faith with Vanilla and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of combined reduced fees, set by NAM in its discretion, for each batch of claims. The parties further agree to cooperate with each other and the arbitration provider or arbitrator to establish any other processes or procedures that the arbitration provider or arbitrator believe will provide for an efficient resolution of claims. Any disagreement between the parties as to whether this provision applies or as to the process or procedure for batching shall be resolved by a procedural arbitrator appointed by NAM. This “Batch Arbitration” provision shall in no way be interpreted as increasing the number of claims necessary to trigger the applicability of NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures or authorizing class arbitration of any kind. Unless Vanilla otherwise consents in writing, Vanilla does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in section 18(c) above and this section 18(g). If your demand for arbitration is included in the Mass Filing, your claims will remain tolled until your demand for arbitration is decided, withdrawn, or is settled.
h. Arbitrator’s decision. The arbitrator will render an award within the time frame specified in the applicable NAM rules and procedures. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the arbitral forum’s rules, and this Arbitration Agreement. The parties agree that the damages and/or other relief must be consistent with section 18(c) above and also must be consistent with the terms of the “Limitation of Liability” section of the Agreement as to the types and the amounts of damages or other relief for which a party may be held liable. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Attorneys’ fees will be available to the prevailing party in the arbitration only if authorized under applicable substantive law governing the claims in the arbitration.
i. Fees. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise. The parties agree that NAM has discretion to reduce the amount or modify the timing of any administrative or arbitration fees due under NAM’s Rules where it deems appropriate (including as specified in Section 18(g)), provided that such modification does not increase the costs to you, and you further agree that you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by NAM does not constitute a default, waiver, or breach of this Section 18 while such challenge remains pending before NAM, the arbitrator, and/or a court of competent jurisdiction, and that any and all due dates for those fees shall be tolled during the pendency of such challenge.
j. Right to opt-out of the Arbitration Agreement. IF YOU DO NOT WISH TO BE BOUND BY THE “ARBITRATION AGREEMENT” AS SET FORTH IN THIS “DISPUTE RESOLUTION” SECTION 18, THEN: (1) you must notify Vanilla in writing within thirty (30) days of the date that you purchased Vanilla Services or otherwise become subject to this Arbitration Agreement (or any subsequent changes to the provisions of the section titled “Dispute Resolution”); (2) your written notification must be mailed to Vanilla at 310 South Main Street, Suite 1000, Salt Lake City, Utah 84101, Attn: Legal Department or emailed to email@example.com and (3) your written notification must include (a) your name, (b) your address, (c) the date you purchased the Services, if applicable and (d) a clear statement that you wish to opt out of this Arbitration Agreement. Vanilla will continue to honor any valid opt outs if you opted out of arbitration in a prior version of the Agreement pursuant to the requirements set forth in that version. If you do not timely opt out of this Arbitration Agreement, such action shall constitute mutual acceptance of the terms of these “Dispute Resolution” provisions by you and Vanilla.
k. Changes. Vanilla will provide thirty (30) days’ notice of any changes to this “Dispute Resolution” section, by posting the change on Vanilla’s website, or providing any other notice in accordance with legal requirements. Any such changes will go into effect 30 days after Vanilla provides this notice and apply to all claims not yet filed. If you reject any such changes by opting out of the Arbitration Agreement, you may exercise your right to a trial by jury or judge, as permitted by applicable law, but any prior existing agreement to arbitrate disputes under a prior version of the Arbitration Agreement will not apply to claims not yet filed. If Vanilla changes this “Dispute Resolution” section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you agree that your continued use of the Services 30 days after such change will be deemed acceptance of those changes. If you do not agree to such change, you may opt out by providing notice as described in Section 18(j).
This Agreement shall be governed by the laws of the state of Delaware and, without reference to its conflict of law principles, except to the extent that any such law is inconsistent with the FAA, in which case the FAA controls. The United Nations Convention on contracts for the International sale of goods is not applicable to this Agreement.
North Carolina consumers. The disclaimer of warranties in Section 14 and the limitations of liability in Section 15 do not apply to purchasers of Services located in North Carolina. Arbitration pursuant to Section 18 involving North Carolina consumers may take place in North Carolina or any other mutually agreed-upon location. Vanilla Technologies Inc.’s address is 310 South Main Street, Suite 1000, Salt Lake City, Utah 84101.
These Terms are severable. Should any portion of these Terms be rendered void, invalid, or unenforceable by any court of competent jurisdiction, the remaining provisions shall nevertheless be binding upon the parties.
These Terms survive expiration or termination of this agreement. Any provision of these Terms that by its nature would extend beyond its expiration or termination shall remain in effect in perpetuity or until fulfilled.
This is the entire agreement between the parties. These Terms constitute the sole and entire agreement of the parties with respect to the subject matter of these Terms and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
We may amend or clarify these Terms. We reserve the right to clarify or amend these Terms by publicly publishing an updated version of them to the Website or any successor website. You acknowledge and agree that in the event we clarify or amend these terms, your use or continued use of or access to the Services will be contingent upon your agreement to the updated Terms.
Only Vanilla may assign this agreement. You may not, directly or indirectly, assign all or part of your rights or obligations under these Terms to any other person or entity without first obtaining the written permission of Vanilla, which may be granted or withheld in its sole discretion. Any purported assignment without Vanilla’s prior written approval shall be null and void. These Terms will be binding on and inure to the benefit of the parties and (as permitted and applicable) their respective successors, heirs, executors, legal representatives, affiliates, and authorized assigns.
You may contact us at any time. If you have any questions, complaints, would like to provide feedback, or would like more information about Vanilla, please feel free to email us at firstname.lastname@example.org.