Effective Date: January 2, 2024

THESE TERMS CONTAIN AN ARBITRATION AGREEMENT AND CLASS ACTION WAIVER THAT WAIVE YOUR RIGHT TO A COURT HEARING OR JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. ARBITRATION IS MANDATORY AND THE EXCLUSIVE REMEDY FOR ANY AND ALL DISPUTES UNLESS SPECIFIED BELOW OR IF YOU OPT-OUT. YOU MUST REVIEW THIS DOCUMENT IN ITS ENTIRETY BEFORE ACCESSING OR USING THE SERVICES.

1. INTRODUCTION

These Terms of Service (the “Terms”) are a legal contract between you and Chatauqua Labs, Inc. d/b/a Jumpcut Media (“Jumpcut,” “we,” “us”, “our”) covering the terms and conditions by which we offer you access to use our products, software, documentation, websites, apps, products, tools, and other services made available for use (collectively, the “Services”).

Jumpcut also provides certain paid products and Services (“Enterprise Services”) to businesses and other creators and organizations, subject to these Terms and pursuant to one or more separate agreements or orders. If you are interested in the Enterprise Services or becoming a user of the Enterprise Services, please contact us at dvalentino@jumpcutmedia.com. To the extent you are receiving Enterprise Services, the term “Services” hereunder shall also include any Enterprise Services.

By using our Services, you are entering into a binding agreement with Jumpcut that includes: (a) these Terms; (b) our Privacy Policy, available at https://jumpcutmedia.com/privacy-policy  which governs, among other things, our collection and use of personal information; (c) any other terms, conditions, or policies linked to in these documents; and (d) all other rules, policies, and procedures relating to the Services that we may publish from time to time. Therefore, please carefully review these documents. If you do not agree with the terms of these documents, you may not use our Services. If there is a conflict between these Terms and any other the terms and conditions covering a specific area of the Services, the latter terms and conditions shall control unless they expressly state otherwise.

2. INTELLECTUAL PROPERTY

(a) As long as you comply with these Terms and our other policies, Jumpcut grants you a limited, non-exclusive, revocable, non-transferable license, without right of sublicense, to use the Services solely for their intended purposes.

(b) Jumpcut reserves all rights not expressly granted herein. Unless otherwise indicated in writing by us, the Services, all intellectual property rights, including unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world now or hereafter existing, and all content and other materials contained therein, including, without limitation, the Jumpcut logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, “Jumpcut Content”) shall, as between you and us, remain the property of Jumpcut or our respective licensors, as applicable. Except as allowed under these Terms, you agree not to use any Jumpcut Content or any of Jumpcut’s intellectual property rights (such as trademarks, copyright, and design rights) whether registered or unregistered. All rights therein and goodwill associated therewith shall inure to the benefit of Jumpcut. Notwithstanding anything to the contrary in these Terms, the Services and Jumpcut Content may include software components provided by Jumpcut, its affiliates or a third party that are subject to separate terms, in which case those terms shall govern such software components. All other content 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 rights 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 Jumpcut.

3. USER CONTENT AND FEEDBACK

(a) The Services or Third Party Offerings (defined below) may enable you to create, upload, store, access, or share content, files, photos, documents, scripts, audio, videos, digital works, feedback, suggestions, and other materials created by you and/or others (“UGC”). We do not claim ownership of any UGC, and you are solely responsible for UGC that you upload, store, broadcast, or share through the Services. In exchange for your use of the Services, and to the extent that your UGC gives rise to any copyright interest, you hereby grant Jumpcut the worldwide, perpetual, royalty-free, irrevocable, sublicensable, non-exclusive right to use, reproduce, modify, create derivative works based upon, distribute, transmit, publicly display, publicly perform, and otherwise use and exploit your UGC solely for purposes of providing, operating, and improving the Services. You hereby grant to Jumpcut a perpetual, worldwide, royalty free right and license to use any UGC in an anonymized, aggregate form combined with materials of other Jumpcut customers and clients, for Jumpcut’s internal business purposes, including, without limitation, for trend analysis, maintenance of Jumpcut’s proprietary platform, and case studies. 

(b) In the event you choose to contact Jumpcut and provide 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 Jumpcut 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.

4. THIRD PARTY OFFERINGS

(a) Jumpcut may make available a marketplace third-party products or services, including, for example, where users can sign up for services or features that are powered by third parties (“Third Party Offerings”). Any interaction between Customer and such third parties, any acquisition by Customer of such Third Party Offerings or their products or services, and any exchange of data between Customer and any Third Party Offering provider is solely between Customer and the applicable third party. Jumpcut does not make any warranties with respect to these Third Party Offerings, whether or not they are included by Jumpcut in the marketplace, unless expressly provided otherwise in an Exhibit. Jumpcut expressly disclaims all liability related to or arising from any such Third Party Offerings.

(b) Jumpcut may integrate into the Services specific third party generative artificial intelligence tools (collectively, the “AI Tools”), which may be operated and used pursuant to certain agreements and terms from the third-party providers of such AI Tools (“AI Terms”). You hereby acknowledge that your use of the AI Tools in the Services may be governed by such AI Terms. If you have any questions about the AI Tools and corresponding AI Terms that may apply to your use of the Services, please contact us at dvalentino@jumpcutmedia.com.

5. ACCOUNT REGISTRATION AND SECURITY

To access or use some of our Services, you may need to create or register an account. To create an account, you may be asked to provide your name, country/region, an email address, a phone number, a username, and a password. We may from time to time ask you for additional identification information as may be required for regulatory or other reasons. You agree to provide complete, accurate, and up-to-date information in connection with your account. You are entirely responsible for keeping your account username and password secret. You also agree not to sell, transfer, or share your account, username, or password. We have the right to deny the creation of any account, for any reason, and we reserve the right to terminate any account that we determine violates these Terms. You are solely responsible for any associated content, information, or materials provided or used in connection with your account. Jumpcut 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. If you discover or otherwise suspect any unauthorized use of, or security issues related to, your account, you agree to notify Jumpcut immediately. Jumpcut reserves the right to access, retain, and disclose your account information if required to do so by law or we have a good faith belief that such access, retention, or disclosure is reasonably necessary to enforce these Terms, respond to your requests for customer service, respond to a legal notice, comply with legal process, or protect the rights, property, or personal safety of our company, our users, or the public.

6. REPRESENTATIONS AND WARRANTIES

By using the Services, you represent and warrant that: (1) you have all requisite capacity, power, and authority to enter into and be bound by these Terms. Without limiting the generality of the foregoing: (1) You have all rights, licenses, consents, permissions, authorizations, approvals, and releases necessary to enter into this agreement and authorize Jumpcut to perform the Services and grant the rights granted herein; (2) the rights granted herein including to your UGC are unencumbered and owned or controlled solely by you; (3) you are over the age of majority; (4) your use of the Services does not violate the rights of any third party or any applicable agreement or law; (5) these Terms do not, and your use of the Services will not: (A) if you are an entity, conflict with or violate any of the charter documents of such entity or any resolution adopted by its equity holders or other persons having governance authority over the entity; (B) contravene, conflict with, or violate or infringe any right of any third party or any applicable legal requirement to which you or any of the assets owned or used by you, is subject; (C) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under any material contract or agreement to which you are a party, permit held by you, or legal requirement applicable to you; or (D) otherwise give rise to any third-party claims or cause Jumpcut to incur any additional fees.

7. PROHIBITIONS AND RESTRICTIONS

You agree that you will NOT do, attempt to do, or use the Services in any manner that does, any of the following: (a) infringe upon the intellectual property, privacy, or other rights of any person or entity; (b) violate applicable laws, rules, regulations, or terms; (c) transmit any viruses or other harmful, infringing, illegal, disruptive, or destructive content, media, code, messages, or files; (d) reverse engineer, decompile, or access non-public areas or systems of the Services; (e) circumvent technological measures to protect the Services or any content; (f) interfere with the operation of the Services; (g) collect any third party’s personal information without their consent; (h) impersonate or misrepresent an affiliation with any person or entity; (i) provide the Services to any third party; (j) encourage, assist, permit, or enable any person to engage in any of the foregoing; (k) modify, disclose, alter, translate or create derivative works of the Services or any components thereof; or (l) aid or encourage any third party to do any of the foregoing.

8. BREACH AND TERMINATION

If you breach these Terms, or any of our other terms that apply to you, we may take action against you, including, among other things, suspending or denying your account access to our Services, and you acknowledge and agree that Jumpcut shall have no further obligation or responsibility to you.

9. COPYRIGHT INFRINGEMENT AND DMCA POLICY.

(a) If you believe that any UGC or other material 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 our DMCA Agent identified below. Jumpcut will respond to all such notices in accordance with the DMCA. In the case of a user who may infringe or repeatedly infringes the copyrights or other intellectual property rights of Jumpcut or any other party, we may, in our discretion, terminate or deny access to and use of the Services. In the case of such termination, Jumpcut will have no obligation to provide a refund of any amounts previously paid to Jumpcut, if any, or to make any other payments whatsoever.

DMCA Agent

Chatauqua Labs, Inc.

1 Letterman Drive

San Francisco, CA 94129

Phone : (917) 654-1704

Email :  dvalentino@jumpcutmedia.com

(b) If you believe that your material has been removed in error in response to a copyright notification, you may submit a counter notification to our designated agent with the following written information: (1) a physical or electronic signature; (2) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; (3) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and (4) your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which the address is located, or if your address is outside of the U.S., for any judicial district in which Jumpcut may be found, and that you will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person. We will respond to counter notifications in accordance with the DMCA.

10. INDEMNIFICATION

To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold harmless Jumpcut and, parents, subsidiaries, affiliates, licensees and each of their respective members, employees, officers, directors, agents, representatives, successors, and assigns (collectively, the “Jumpcut 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, 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 breach or non-performance of any representation, warranty, covenant, agreement, or obligation in these Terms; (c) your violation of any law, regulatory requirement, judgment, order, or decree; (d) your violation of any right of any third party, including any intellectual property right or publicity, confidentiality, other property, privacy, or contractual right; and (e) any dispute, issue, interaction, exchange, or agreement between you and any third party.

11. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ANY JUMPCUT 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. IN NO EVENT WILL THE JUMPCUT PARTIES’ 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).

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 TRIPS 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 TRIPS PARTIES TO DISCLAIM CERTAIN WARRANTIES OR LIMIT CERTAIN LIABILITIES, THE EXTENT OF JUMPCUT PARTIES’ LIABILITY AND THE SCOPE OF ANY SUCH WARRANTIES WILL BE AS PERMITTED UNDER APPLICABLE LAW.

EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

12. WARRANTY DISCLAIMER

THE SERVICES AND ALL MATERIALS, INFORMATION, DATA, AND CONTENT AVAILABLE ON OR THROUGH THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, JUMPCUT MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND IN CONNECTION WITH THE SERVICES, INCLUDING THE THIRD PARTY OFFERINGS AND ANY INFORMATION, DATA, CONTENT, OR MATERIALS PROVIDED OR MADE AVAILABLE BY JUMPCUT. NONE OF THE JUMPCUT 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 WILL BE ACCURATE, SECURE, RELIABLE, OR FREE OF ERRORS OR (C) ERRORS OR DEFECTS WILL BE CORRECTED. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE JUMPCUT PARTIES DISCLAIM ALL REPRESENTATIONS, WARRANTIES, PROMISES, OR GUARANTEES OF ANY KIND WHATSOEVER AS TO THE SERVICES AND THIRD PARTY OFFERINGS, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE.

WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICES OR YOUR DEALING WITH ANY OTHER SERVICE USER OR THIRD PARTY. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICES AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE WEBSITE OR SERVICES) OR ANY LOSS OF DATA.

THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.

13. DISPUTE RESOLUTION; AGREEMENT TO ARBITRATE

Dispute Resolution Overview

Any dispute relating in any way to your visit to, or use of, the Services, or any purchase or otherwise related to these Terms (“Dispute”) shall be submitted to small claims court or confidential, binding arbitration, and shall be governed exclusively by the laws of the State of New York, excluding its conflict of law provisions.

Class Action Waiver and Arbitration Agreement

Claims Subject to Arbitration: To the fullest extent permitted by applicable law, Jumpcut and you agree that any and all Disputes, other than those filed in small claims court, shall be submitted to final and binding arbitration (this part of Section 14, the “Arbitration Agreement”). References to “Jumpcut”, “you”, “we”, and “us” in this Arbitration Agreement include our respective predecessors in interest, successors, and assigns, as well as our respective past, present, and future parents, subsidiaries and affiliates; those entities and our respective agents, employees, licensees, licensors, and providers of content as of the time your or our claim arises.

This Arbitration Agreement is intended to be broadly interpreted. It includes, but is not limited to:

• Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, fraud, misrepresentation or any other statutory or common-law legal theory;

• Claims that arose before this or any prior Arbitration Agreement (including, but not limited to, claims relating to advertising); and

• Claims for mental or emotional distress or injury not arising out of physical bodily injury.

Notwithstanding the foregoing, the following shall not be subject to arbitration and may be adjudicated only in the state and federal courts of California: (i) any dispute, controversy, or claim relating to or contesting the validity of Jumpcut’s intellectual property rights and proprietary rights, including without limitation, patents, trademarks, service marks, copyrights, or trade secrets; (ii) an action by a party for temporary, preliminary, or permanent injunctive relief, whether prohibitive or mandatory, or other provisional relief; (iii) any legal action by Jumpcut against a non-consumer; or (iv) interactions with governmental and regulatory authorities.

Either party may elect to have Disputes heard in small claims court seeking only individualized relief, so long as the action is not removed or appealed to a court of general jurisdiction.

Class Action and Jury Trial Waiver: You and Jumpcut agree that, to the fullest extent permitted by law, each party may bring claims (whether in small claims court or in arbitration) against the other only in an individual capacity, and not participate as a plaintiff, claimant, or class member in any class, collective, consolidated, private attorney general, or representative proceeding. This means that you and Jumpcut may not bring a claim on behalf of a class or group and may not bring a claim on behalf of any other person unless doing so as a parent, guardian, or ward of a minor or in another similar capacity for an individual who cannot otherwise bring their own individual claim. This also means that you and Jumpcut may not participate in any class, collective, consolidated, private attorney general, or representative proceeding brought by any third party. Notwithstanding the foregoing, you or Jumpcut may participate in a class-wide settlement.

To the fullest extent permitted by law, you and Jumpcut waive any right to a jury trial.

YOU UNDERSTAND THAT YOU WOULD HAVE HAD A RIGHT TO LITIGATE IN A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, YOU UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH ARBITRATION OR SMALL CLAIMS COURT.

You expressly agree to refrain from bringing or joining any claim in any representative or class-wide capacity, including but not limited to bringing or joining any claims in any class action or any class-wide arbitration.

You shall have thirty (30) days from the date that you use our Services to opt out of this Arbitration Agreement. To opt out of arbitration you must contact us in writing at dvalentino@jumpcutmedia.com. If more than thirty (30) days have passed from the date that you purchase a product, you are not eligible to opt out of arbitration with respect to claims relating to that product. If more than thirty (30) days have passed from the date that you provide information to the website, you are not eligible to opt out of arbitration with respect to claims relating to the website.

This Arbitration Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act (9 U.S.C. §§ 1-16) governs the interpretation and enforcement of this arbitration provision. This Arbitration Agreement shall survive termination of this agreement.

Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures: You and we agree that good-faith, informal efforts to resolve disputes often can result in a prompt, cost-effective and mutually beneficial outcome. Therefore, a party who intends to initiate arbitration or file a claim in small claims court must first send to the other a written Notice of Dispute (“Notice”). A Notice from you to Jumpcut must be emailed to dvalentino@jumpcutmedia.com (“Notice Address”). Any Notice must include (i) the claimant’s name, address, and email address; (ii) a description of the nature and basis of the claim or dispute; (iii) if you are submitting the Notice, any relevant facts regarding your use of the Jumpcut Services, including whether you have created an account with or receive any communications associated with the Jumpcut Services and/or if you have made a purchase from Jumpcut, and if so, the date(s) of the purchase(s); (iv) a description of the nature and basis of the specific relief sought, including the damages sought, if any, and a detailed calculation for them; and (v) a personally signed statement from the claimant (and not their counsel) verifying the accuracy of the contents of the Notice. The Notice must be individualized, meaning it can concern only your dispute and no other person’s dispute.

After receipt of a completed Notice, the parties shall engage in a good faith effort to resolve the dispute for a period of 60 days (which can be extended by agreement). You and we agree that, after receipt of the completed Notice, the recipient may request an individualized telephone or video settlement conference (which can be held after the 60-day period) and both parties will personally attend (with counsel, if represented). You and we agree that the parties (and counsel, if represented) shall work cooperatively to schedule the conference at the earliest mutually-convenient time and to seek to reach a resolution. If we and you do not reach an agreement to resolve the issues identified in the Notice within 60 days after the completed Notice is received (or a longer time if agreed to by the parties), you or we may commence an arbitration proceeding or a small claims court proceeding (if permitted by small claims court rules).

Compliance with this Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures section is a condition precedent to initiating arbitration. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution procedures set forth in this subsection. All of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures are essential so that you and Jumpcut have a meaningful opportunity to resolve disputes informally. If any aspect of these requirements has not been met, a court of competent jurisdiction may enjoin the filing or prosecution of an arbitration. In addition, unless prohibited by law, the arbitration administrator may not accept, administer, assess, or demand fees in connection with an arbitration that has been initiated without completion of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures. If the arbitration is already pending, it shall be administratively closed. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with these Procedures in arbitration.

Arbitration Procedure: The arbitration will be governed by applicable rules of National Arbitration & Mediation (“NAM”) (including the Comprehensive Dispute Resolution Rules and Procedures and/or the Supplemental Rules for Mass Arbitration Filings, as applicable) (“NAM Rules”)), as modified by this Arbitration Agreement, and will be administered by NAM. (If NAM is unavailable or unwilling to do so, another arbitration provider shall be selected by the parties that will do so, or if the parties are unable to agree on an alternative administrator, by the court pursuant to 9 U.S.C. §5.) The NAM Rules are available online at www.NAMADR.org or by requesting them in writing at the Notice Address. You may obtain a form to initiate arbitration at: https://www.namadr.com/content/uploads/2020/09/Comprehensive-Demand-for-Arb-revised-9.18.19.pdf or by contacting NAM.

You and we agree that the party initiating arbitration must submit a certification that they have complied with and completed the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures requirements referenced in subsection (3) above, and that they are a party to the Arbitration Agreement enclosed with or attached to the demand for arbitration. The demand for arbitration and certification must be personally signed by the party initiating arbitration (and their counsel, if represented).

All issues are for the arbitrator to decide, except as otherwise expressly provided herein and except as to issues relating to the scope and enforceability of the Arbitration Agreement or whether a dispute can or must be brought in arbitration, which are for a court of competent jurisdiction to decide. The arbitrator may consider but shall not be bound by rulings in other arbitrations involving different customers.

Unless we and you agree otherwise, or the applicable NAM Rules dictate otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. For residents outside the United States, arbitration shall be initiated in Los Angeles, California. At the conclusion of the arbitration proceeding, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator’s decision is binding only between you and Jumpcut and will not have any preclusive effect in another arbitration or proceeding that involves a different party. An arbitrator’s award that has been fully satisfied shall not be entered in any court.

As in court, you and Jumpcut agree that any counsel representing a party in arbitration certifies when initiating and proceeding in arbitration that they are complying with the requirements of Federal Rule of Civil Procedure 11(b), including certification that the claim or relief sought is neither frivolous nor brought for an improper purpose. The arbitrator is authorized to impose any sanctions under the NAM Rules, Federal Rule of Civil Procedure 11, or applicable federal or state law, against all appropriate represented parties and counsel.

Except as expressly provided in the Arbitration Agreement, the arbitrator may grant any remedy, relief, or outcome that the parties could have received in court, including awards of attorneys’ fees and costs, in accordance with applicable law. Unless otherwise provided by applicable law, the parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator awards sanctions or finds that either the substance of the claim, the defense, or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

Arbitration Fees: The payment of arbitration fees (the fees imposed by the arbitration administrator including filing, arbitrator, and hearing fees) will be governed by the applicable NAM Rules, unless you qualify for a fee waiver under applicable law. If after exhausting any potentially available fee waivers, the arbitrator finds that the arbitration fees will be prohibitive for you as compared to litigation, we will pay as much of your filing, arbitrator, and hearing fees in the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the arbitration, unless the arbitrator determines that your claim(s) were frivolous or brought for an improper purpose or asserted in bad faith. You and we agree that arbitration should be cost-effective for all parties and that any party may engage with NAM to address the reduction or deferral of fees.

Confidentiality: Upon either party’s request, the arbitrator will issue an order requiring that confidential information of either party disclosed during the arbitration (whether in documents or orally) may not be used or disclosed except in connection with the arbitration or a proceeding to enforce the arbitration award and that any permitted court filing of confidential information must be done under seal to the furthest extent permitted by law.

Offer of Settlement: In any arbitration between you and Jumpcut, the defending party may, but is not obligated to, make a written settlement offer at any time before the evidentiary hearing or, if a dispositive motion is permitted, prior to the dispositive motion being granted. The amount or terms of any settlement offer may not be disclosed to the arbitrator until after the arbitrator issues an award on the claim. If the award is issued in the other party’s favor and is less than the defending party’s settlement offer or if the award is in the defending party’s favor, the other party must pay the defending party’s costs incurred after the offer was made, including any attorney’s fees. If any applicable statute or case law prohibits the shifting of costs incurred in the arbitration, then the offer in this provision shall serve to cease the accumulation of any costs to which the party bringing the claim may be entitled for the cause of action under which it is suing.

Requirement of Individualized Relief: The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative, class, or private attorney general proceeding. If, after exhaustion of all appeals, any of these prohibitions on non-individualized declaratory or injunctive relief; class, representative, and private attorney general claims; and consolidation are found to be unenforceable with respect to a particular claim or with respect to a particular request for relief (such as a request for injunctive relief sought with respect to a particular claim), then the parties agree such a claim or request for relief shall be decided by a court of competent jurisdiction, after all other arbitrable claims and requests for relief are arbitrated. You agree that any arbitrations between you and Jumpcut will be subject to this Arbitration Agreement and not to any prior arbitration agreement you had with Jumpcut, and, notwithstanding any provision in these Terms to the contrary, you agree that this Arbitration Agreement amends any prior arbitration agreement you had with Jumpcut, including with respect to claims that arose before this or any prior arbitration agreement.

Opt Out of Future Changes: Notwithstanding any provision to the contrary, if Jumpcut makes any future change to this Arbitration Agreement (other than a change to the Notice Address), you may reject any such change by sending Jumpcut an email to dvalentino@jumpcutmedia.com within 30 days of the posting of the amended arbitration agreement that provides: (i) your full legal name, (ii) your complete mailing address, (iii) your phone number, (iv) and, if applicable, the username or email address associated with any potential account on the Jumpcut website. Such an opt-out email must be sent by you personally, and not by your agent, attorney, or anyone else purporting to act on your behalf. It must include a statement, personally signed by you, that you wish to reject the change to the Arbitration Agreement. This is not an opt out of arbitration altogether.

Mass Filing: If at any time 25 or more claimants (including you) submit Notices or seek to file demands for arbitration raising similar claims against the other party or related parties by the same or coordinated counsel or entities, consistent with the definition and criteria of Mass Filings (“Mass Filing”) set forth in NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures (“NAM”s Mass Filing Rules”, available at https://vvww.namadr.com/resources/rules-fees-forms/), you and we agree that the additional procedures set forth below shall apply. The parties agree that throughout this process, their counsel shall meet and confer to discuss modifications to these procedures based on the particular needs of the Mass Filing. The parties acknowledge and agree that by electing to participate in a Mass Filing, the adjudication of their dispute might be delayed. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled beginning when the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures are initiated, so long as the pre-arbitration Notice complies with the requirements in that subsection, until your claim is selected to proceed as part of a staged process or is settled, withdrawn, otherwise resolved, or opted out of arbitration.

Stage One: Counsel for the claimants and counsel for Jumpcut shall each select 25 claims per side (50 claims total) to be filed and to proceed in individual arbitrations as part of a staged process. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this initial set of staged proceedings is completed, the parties shall promptly engage in a global mediation session of all remaining claims with a retired federal or state court judge.

Stage Two: If the remaining claims are not resolved at this time, counsel for the claimants and counsel for Jumpcut shall each select 50 claims per side (100 claims total) to be filed and to proceed in individual arbitrations as part of a second staged process, subject to any procedural changes the parties agreed to in writing. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this second set of staged proceedings is completed, the parties shall promptly engage in a global mediation session of all remaining claims with a retired federal or state court judge.

If your claim is not resolved as part of the staged process identified above, either:

Option One: You and Jumpcut may separately or by agreement, opt out of arbitration and elect to have your claim heard in court consistent with the Agreement. You may opt out of arbitration by providing your individual, personally-signed notice of your intention to opt out by sending Jumpcut an email to dvalentino@jumpcutmedia.com. Such an opt-out email must be sent by you personally, and not by your agent, attorney, or anyone else purporting to act on your behalf. It must include a statement, personally signed by you, that you wish to opt out of arbitration within 30 days after the conclusion of the mediation associated with Stage 2. Jumpcut may opt your claim out of arbitration by sending an individual, personally signed notice of its intention to opt out to your counsel within 14 days after the expiration of your 30 day opt out period. Counsel for the parties may agree to adjust these deadlines.

OR

Option Two: If neither you nor Jumpcut elect to have your claim heard in court consistent with Option One, then you agree that your claim will be resolved as part of continuing, staged individual arbitration proceedings as set forth below. Assuming the number of remaining claims exceeds 200, then 200 claims shall be randomly selected (or selected through a process agreed to by counsel for the parties) to be filed and to proceed in individual arbitrations as part of a staged process. If the number of remaining claims is fewer than 200, then all of those claims shall be filed and proceed in individual arbitrations. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After each set of 200 claims are adjudicated, settled, withdrawn, or otherwise resolved, this process shall repeat consistent with these parameters. Counsel for the parties are encouraged to meet and confer, participate in mediation, and engage with each other and with NAM (including through a Procedural Arbitrator) to explore ways to streamline the adjudication of claims, increase the number of claims to proceed at any given time, promote efficiencies, conserve resources, and resolve the remaining claims.

A court of competent jurisdiction shall have the authority to enforce these Mass Filing provisions and, if necessary, to enjoin the mass filing, prosecution, or administration of arbitrations and the assessment of arbitration fees. If these additional procedures apply to your claim, and a court of competent jurisdiction determines that they are not enforceable as to your claim, then your claim shall proceed in a court of competent jurisdiction consistent with these Terms.

You and Jumpcut agree that we each value the integrity and efficiency of arbitration and wish to employ the process for the fair resolution of genuine and sincere disputes between us. You and Jumpcut acknowledge and agree to act in good faith to ensure the processes set forth herein are followed. The parties further agree that application of these Mass Filing procedures have been reasonably designed to result in an efficient and fair adjudication of such cases.

14. MISCELLANEOUS.

(a) We reserve the right to clarify or amend these Terms by publicly publishing an updated version of them to https://app.jumpcutmedia.com/terms-of-use 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.

(b) 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.

(c) Any provision of these Terms that by its nature would extend beyond expiration or termination of these Terms shall remain in effect in perpetuity or until fulfilled.

(d) 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.

(e) These Terms will be binding on and inure to the benefit of the parties and (as applicable) their respective successors, heirs, executors, legal representatives, affiliates, and authorized assigns. 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 Jumpcut. Any purported assignment without Jumpcut’s prior written approval shall be null and void.

15. CONTACT INFORMATION.

You can contact us at any time. If you have any questions, would like to provide Feedback, or would like more information about Jumpcut or the Services, please feel free to email us at dvalentino@jumpcutmedia.com.