These Terms of Service (the “Terms”) are a legal agreement between you and Gakko, Inc. (“Gakko”, “we”, “our”, or “us”) governing your access to and use of the Gakko website located at www.gakkoproject.com including all of its webpages and subpages (collectively, the “Site”). Gakko’s mobile application(s) (the “Mobile Apps” and together with the Site, the “Apps”), including using the services available in connection with the Apps (the “Services” and together with the Apps, the “Platform”). Any Gakko classes, programs, or camps (“Programs”) have their own terms and conditions that you must agree to if you are accepted into any such Program. BY ACCESSING THE PLATFORM YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS YOU MAY NOT ACCESS OR USE THE APPS OR THE SERVICES.
1. Your Use of the Site and Services.
1.1 Apps and Services. The Site provides information regarding Gakko, the Services, Mobile Apps, and Programs. The Site may also include forums and areas where you can engage with Gakko or other users about Gakko’ Programs or Services. The Services are as described in the related Mobile Apps or on the Site.
1.2 License. Subject to these Terms, Gakko grants you a personal, limited, revocable, non-exclusive and non-transferable license to access and use the Platform for your own individual purposes and those additional purposes enabled by Gakko. This license is exclusive to you and you may not sublicense the use of the Platform. Gakko expressly retains all ownership rights, title and interest in and to all aspects of the Platform and all intellectual property rights therein, including, but not limited to, all current and future patents, copyrights, trademarks, trade secrets, know-how, and other proprietary rights included or embodied in the Platform.
1.3 Restrictions. You may not modify any part of the Platform, create derivative works of the Platform, or reverse engineer, reverse compile, reverse assemble or do any other operation with the Platform that would reveal any source code, trade secrets, know-how or other proprietary information. You may not remove or modify any notice of confidentiality, trade secret, trademark or copyright encoded or embodied in the Platform or displayed by, on, or in the Platform. You may use the Platform only while these Terms remain in effect. Under no circumstances shall you have any rights of any kind in or to any part of the Platform after any termination or expiration of your agreement to these Terms for any reason. In no event may you use the Platform for commercial endeavors without our prior written consent.
1.4 User Content. You may be provided the opportunity to participate in forums, discussions, or to otherwise submit content to the Platform. Gakko does not claim ownership rights in any information, data, text, messages, or other materials or content you make available or use in connection with the Platform (“User Content”). By submitting your User Content and accepting the consideration set forth in these Terms (including us permitting you to use the Platform) you unconditionally grant to Gakko a non-exclusive, perpetual, irrevocable, worldwide, fully-paid, transferable right and license, with the right to sublicense through multiple levels of sublicensees, under all of your intellectual property rights in the User Content, to reproduce, create derivative works of, distribute, publicly display, digitally transmit, and otherwise use the User Content in any medium or format, whether now known or hereafter discovered, solely to provide you the Platform or as otherwise described to you on the Platform. You remain the owner of all User Content that you submit to the Platform and as a condition to your use of the Platform, you represent and warrant to Gakko that you are the owner of the copyright to the User Content you submit to the Platform or that you have permission from the copyright owner to submit such User Content. You agree to indemnify and hold Gakko harmless for any violation of this provision.
2.1 Registering Your Account. In order to access certain features of the Platform you may be required to register for an account (“Account”).
2.2 Eligibility. By registering for the Platform, you represent and warrant that your use of the Platform does not violate any applicable law or regulation, or any other obligation (including contractual obligation) you might have towards third parties. Any Account you have created by registering on the Platform may be deleted without warning if we believe that any representation and warranty you make hereunder is breached or inaccurate or if you are improperly using the Platform.
2.3 User Data. You agree that the information that you provide to Gakko about yourself upon submission of any application or creation of any Account, and at all other times, (“User Data”) will be true, accurate, current and complete, and you further agree that you will maintain and promptly update the User Data to ensure that it remains true, accurate, current and complete. You may not impersonate any other person or use a username or password that you are not authorized to use. If you become aware of any unauthorized use of your User Data, you agree to notify us immediately at email@example.com. Gakko reserves the right to suspend or terminate your access to the Platform, at any time, without notice, for any reason, including but not limited to (a) your breach of these Terms, or any other policies or guidelines set forth by Gakko, or (b) conduct that Gakko believes is harmful to other users of the Platform, Gakko, or any third party.
2.4 Password. When you register for an Account, you will also be asked to choose a password for your Account. You are solely responsible for maintaining the confidentiality of your password. You agree not to use the Account or password of another person at any time. You agree to notify us immediately if you suspect any unauthorized use of your Account or access to your password. You are solely responsible for any and all use of your Account.
3. Third Party Software and Linking. Although we may make software, hyperlinks, and other products of third-party companies available to you, your use of such products is subject to the respective terms and conditions imposed by the third party owning, manufacturing or distributing such products, and the agreement for your use will be between you and such third party. Gakko makes no warranty with regard to the products or websites of any other entity. Gakko has no control over the content or availability of any third-party software or website. In particular, (a) Gakko makes no warranty that any third-party software you download or web site you visit will be free of any contaminating or destructive code, such as viruses, worms or Trojan horses and (b) it is your responsibility to become familiar with any web site's privacy and other policies and terms of service, and to contact that site's webmaster or site administrator with any concerns.
4. Code of Conduct.
4.1 You expressly agree that you are solely responsible for any and all acts and omissions that occur through your use of the Platform, and you agree not to engage in any unacceptable uses of the Platform, which include, without limitation, use of the Platform to:
(a) interfere, disrupt or attempt to gain unauthorized access to other accounts on the Platform or any other computer network;
(b) use the Platform in connection with any commercial endeavors without Gakko’ express written consent;
(c) create user accounts by automated means or under fraudulent or false pretenses;
(d) create or transmit unsolicited electronic communications such as spam to users or promote any products or services;
(e) collect and publish any information about any of our users;
(f) use any spider, robot, retrieval application, or any other device to retrieve any portion of the Site;
(g) reformat any of the pages that are part of the Site;
(h) disseminate, store or transmit viruses, worms, Trojan horses or other malicious code or program;
(i) encourage conduct that would constitute a criminal or civil offense;
(j) violate any applicable federal, state, local or international law or regulation;
(k) invade the privacy of any person, including but not limited to submitting personally identifying or otherwise private information about a person without their consent (or their parent’s consent in the case of a child under 13 years of age);
(l) submit false or misleading information to Gakko, the Platform or other users; or
4.2 We cannot and do not assure that other users are or will be complying with the foregoing rules of conduct or any other provisions of these Terms, and, as between you and us, you hereby assume all risk of harm or injury resulting from any such lack of compliance. Under no circumstances shall Gakko be liable for the acts or omissions of any user.
6. Disclaimer of Warranty. THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND. GAKKO EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PLATFORM AND THE INFORMATION CONTAINED THEREIN, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. Indemnification. You agree to indemnify, and hold Gakko, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation reasonable attorney's fees and costs, arising out of or in any way connected with (a) your access to or use of the Platform; (b) your violation of these Terms; (c) your violation of any third party right, including without limitation any intellectual property right or any publicity, confidentiality, property or privacy right; or (d) any claim that your use of the Platform caused damage to a third party.
8. Limitation of Liability. YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL GAKKO BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, IMAGES, DATA OR OTHER INTANGIBLES, EVEN IF GAKKO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL GAKKO BE LIABLE TO YOU FOR ANY AMOUNT IN EXCESS OF THE LESSER OF $50 AND THE FEES RECEIVED BY GAKKO FROM YOU IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY HEREUNDER.
9.1 Modification. Gakko may modify these Terms at any time. Modifications become effective immediately upon your first access to or use of the Platform after the “Last Revised” date at the bottom of these Terms. Your continued access to or use of the Platform after the modifications have become effective will be deemed your conclusive acceptance of the modified Terms. If you do not agree with the modifications, do not access or use the Platform.
9.2 Applicable Law These Terms shall be governed by the laws of the State of New York without giving effect to any conflict of laws principles that may require the application of the law of another jurisdiction.
9.3 Dispute Resolution
(a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of the Platform that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed, all arbitration proceedings will be held in English. This Arbitration Agreement applies to you and the Gakko, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
(b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Gakko should be sent to: 243 Canal Street, New York, NY 10013. After the Notice is received, you and Gakko may attempt to resolve the claim or dispute informally. If you and Gakko do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(c) Arbitration Rules. Arbitration shall be initiated through the Judicial Arbitration and Mediation Services, Inc. (“JAMS”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If JAMS is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The JAMS Streamlined Arbitration Rules governing the arbitration are available online at http://www.jamsadr.com/. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
(d) Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
(e) Time Limits. If you or Gakko pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the JAMS Rules for the pertinent claim.
(f) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Gakko, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the JAMS Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Gakko.
(g) Waver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Gakko in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND GAKKO WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
(i) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(j) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
(k) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
(l) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Gakko.
(m) Small Claims Court. Notwithstanding the foregoing, either you or Gakko may bring an individual action in small claims court.
(n) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
(o) Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
(p) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within New York, New York, for such purpose.
9.4 Independent Contractors. No joint venture, partnership, employment, or agency relationship exists between you and Gakko as a result of these Terms or use of the Platform.
9.5 Enforcement. If any legal action is brought to enforce these Terms, the prevailing party will be entitled to reimbursement of its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive from the other party.
9.6 Waiver. The failure of Gakko to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by Gakko in writing.
9.7 Construction. The headings of Sections of these Terms are for convenience and are not to be used in interpretation.
9.8 Contact. Gakko is located in New York, New York, USA. Any questions, comments or suggestions, including any report of violation of these Terms should be provided to the Administrator as follows:
By E-mail: firstname.lastname@example.org
By Postal Mail: 243 Canal Street, New York, NY 10013
9.9 Entire Agreement. These Terms constitute the entire agreement between you and Gakko and govern your use of the Platform, superseding any prior agreements between you and Gakko. The failure of Gakko to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, you and Gakko nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms shall remain in full force and effect.
Last updated: March 30, 2018