Terms of Service

Last Updated: October 15, 2020

These terms of service constitute a legally binding agreement (this “Agreement”) between you (“You”, “Your” or “Yours”) and Forage Group, Inc. (“Forage,” “we,” “us” or “our”) with respect to the use of and access to the website, products, services, and associated software or other technology of Forage and its affiliates (collectively, the “Services”) by You and all other individuals or entities of any kind that use or access the Services through your

THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS YOU AND FORAGE HAVE AGAINST EACH OTHER CAN BE BROUGHT. THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST FORAGE TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY.

By using or accessing the Services, You expressly acknowledge that You understand this Agreement (including the dispute resolution and arbitration provisions) and accept all of its terms on behalf of all Users.  IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS, NOR PERMIT AnY USER TO USE OR ACCESS, THE SERVICES.

Forage will provide the Services, and Users may access and use the Services, only in accordance with this Agreement. Forage may provide any of the Services hereunder through any of its affiliates. If You order Services through an on-line registration page or an order form (each an “Order Form”), the Order Form may contain additional terms and conditions and information regarding the Services you are ordering. Unless otherwise expressly set forth in any such additional terms and conditions applicable to the specific Service which You choose to use, those additional terms are hereby incorporated into this Agreement in relation to Your use of that Service.

1. SERVICES

Forage provides a virtual space to connect Users via live video and audio conferences with other Users. In doing so, Forage provides a limited, revocable non-exclusive, non-transferable, non-sublicensable license to Users to attend and participate in such virtual conferences. Forage, may, in its sole discretion, discontinue the Services or modify the features of the Services at any time and from time to time without prior notice.

  • System Requirements. Use of the Services requires one or more compatible devices, Internet access (fees may apply), and certain software (fees may apply), and may require obtaining updates or upgrades from time to time. Because use of the Services involves hardware, software, and Internet access, Your ability to access and use the Services may be affected by the performance of these factors. High speed Internet access is recommended. You acknowledge and agree that such system requirements, which may be changed from time to time, are Your responsibility. Forage is not liable to Users for any loss or damage arising out of or due to any technological issues, internet, or bandwidth of the Users and shall not be responsible for any reimbursement to You or any other User in this regard.
  • Beta Services. Forage may, from time to time, offer access to services that are classified as Beta version. Access to and use of Beta versions may be subject to additional agreements. Forage makes no representations that a Beta version will ever be made generally available and reserves the right to discontinue or modify a Beta version at any time without notice. Beta versions are provided AS IS, may contain bugs, errors or other defects, and Your use of a Beta version is at Your sole risk.

2. USE OF SERVICES AND YOUR RESPONSIBILITIES

You may only use the Services pursuant to the terms of this Agreement. You are solely responsible for Your and any other User’s use of the Services and You shall abide by, and ensure compliance with, all terms of this Agreement and all laws in connection with Your and any other User’s use of the Services, including but not limited to laws related to recording, intellectual property, privacy and export control. Use of the Services is void where prohibited. Forage is provided for general information and entertainment purposes only. It does not offer advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of information obtained from Forage.

  • a. Registration Information. In order to register for and/or use certain Services, You may be required to provide information, including complete name and e-mail. You agree that any such information shall be accurate. You may also be asked to choose a user name and password. You are entirely responsible for maintaining the security of Your user name and password and agree not to disclose such to any third party. You shall ensure and confirm that all information provided by You is complete, accurate and up-to-date. You shall not impersonate any individual or entity. If there is any change in the registration information or if any information is found to be incomplete, inaccurate or incorrect, You shall promptly update your information or request Forage for information revision or update. If You provide any information that is untrue, inaccurate, not current or incomplete (or becomes untrue, inaccurate, not current or incomplete), or if Forage has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Forage has the right to suspend or terminate Your use and refuse any and all current or future use of the Services at its discretion, in addition to any right that Forage may have against You at law or in equity, for any misrepresentation of information provided by You.
  • b. User Relationships. All users of Forage are independent entities/individuals and are not agents or representatives of Forage. You hereby accept and acknowledge that conferences are between the users of Forage, that Forage has no role to play in it, other than facilitating the provision of Services and providing a technology platform for hosting such conferences. Forage does not endorse any User on the Platform. You agree and acknowledge that Forage shall not be responsible for or involved in any dispute(s) between the users or between Users and/ or any third party, and such disputes shall be handled and dealt with by the parties independently of Forage.
  • c. Your Content. You agree that You are solely responsible for the content (“Content”) sent or transmitted by You or displayed or uploaded by You in using the Services and for compliance with all laws pertaining to the Content, including, but not limited to, laws requiring You to obtain the consent of a third party to use the Content and to provide appropriate notices of third party rights. You represent and warrant that You have the right to upload the Content to Forage and that such use does not violate or infringe on any rights of any third party. Under no circumstances will Forage be liable in any way for any (a) Content that is transmitted or viewed while using the Services, (b) errors or omissions in the Content, or (c) any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to Content. Although Forage is not responsible for any Content, Forage may delete any Content, at any time without notice to You, if Forage becomes aware that it violates any provision of this Agreement, or any law. You retain copyright and any other rights You already hold in Content which You submit, post or display on or through, the Services.
  • d. Recordings. You are responsible for compliance will all recording laws. Forage can choose to record meetings and other virtual webinars. By using the Services, you are giving Forage consent to store recordings for any or all Forage meetings or webinars that you join, if such recordings are stored in our systems. You will receive a notification (visual or otherwise) when recording is enabled. If you do not consent to being recorded, you can choose to leave the meeting or webinar.
  • e. Prohibited Use. You agree that You will not use, and will not permit any User to use, the Services to: (i) modify, disassemble, decompile, prepare derivative works of, reverse engineer or otherwise attempt to gain access to the source code of the Services; (ii) knowingly or negligently use the Services in a way that abuses, interferes with, or disrupts Forage’s networks, Your accounts, or the Services; (iii) engage in activity that is illegal, fraudulent, false, or misleading, (iv) transmit through the Services any material that may infringe the intellectual property or other rights of third parties; (v) build or benchmark a competitive product or service, or copy any features, functions or graphics of the Services; (vi) use the Services to communicate any message or material that is harassing, libelous, threatening, obscene, indecent, would violate the intellectual property rights of any party or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation; (vii) upload or transmit any software, Content or code that does or is intended to harm, disable, destroy or adversely affect performance of the Services in any way or which does or is intended to harm or extract information or data from other hardware, software or networks of Forage or other users of Services; (viii) engage in any activity or use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Services, or any servers or networks connected to the Services or Forage’s security systems; or (ix) use the Services in violation of any Forage policy or in a manner that violates applicable law, including but not limited to anti-spam, export control, privacy, and anti-terrorism laws and regulations and laws requiring the consent of subjects of audio and video recordings. You agree that You are solely responsible for Your compliance and the compliance of any User with all such laws and regulations.
  • f. Limitations on Use. You may not reproduce, resell, or distribute the Services or any reports or data generated by the Services for any purpose unless You have been specifically permitted to do so under a separate written agreement with Forage. You may not offer or enable any third parties to use the Services, display on any website or otherwise publish the Services or any Content obtained from a Service (other than Content created by You) or otherwise generate income from the Services or use the Services for the development, production or marketing of a service or product substantially similar to the Services

3. RESPONSIBILITY FOR USERS

You are responsible for the activities of all Users who access or use the Services through your account and you agree to ensure that any such User will comply with the terms of this Agreement and any Forage policies. Forage assumes no responsibility or liability for violations. If You become aware of any violation of this Agreement in connection with use of the Services by any person, please contact Forage at help@foragegroup.com. Forage may investigate any complaints and violations that come to its attention and may take any (or no) action that it believes is appropriate, including, but not limited to issuing warnings, removing the content or terminating accounts and/or User profiles. Under no circumstances will Forage be liable in any way for any data or other content viewed while using the Services, including, but not limited to, any errors or omissions in any such data or content, or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any data or content.

4. ELIGIBILITY

You represent and warrant that You have all necessary power and authority (including, if You are an individual, that you are a person of legal age with requisite capacity) to enter into this Agreement and form a binding contract thereby in accordance with the applicable laws of Your jurisdiction. You also represent that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement. Forage makes no representation about Your eligibility to use the Services or that Your use of the Services is in accordance with applicable law.

5. INTENDED USE; RESTRICTION ON USE BY CHILDREN

The Services are intended for general information and entertainment use. You may choose to use the Services for other purposes, subject to the terms and limitations of this Agreement. Forage is not intended for use by children or any other person without the requisite capacity to form a binding contract in accordance with the applicable laws of such person’s jurisdiction. If you are a parent or legal guardian who believes such a person is accessing the Services without your consent, please contact Forage immediately.

6. CHARGES AND CANCELLATION

You agree that Forage may charge to Your credit card or other payment mechanism selected by You and approved by Forage (“Your Account”) all amounts due and owing for the Services, including taxes and service fees, set up fees, subscription fees, or any other fee or charge associated with Your Account. Forage may change prices at any time, including changing from a free service to a paid service and charging for Services that were previously offered free of charge; provided, however, that Forage will provide you with prior notice and an opportunity to terminate Your Account if Forage changes the price of a Service to which you are subscribed and will not charge you for a previously free Service unless you have been notified of the applicable fees and agreed to pay such fees. You agree that in the event Forage is unable to collect the fees owed to Forage for the Services through Your Account, Forage may take any other steps it deems necessary to collect such fees from You and that You will be responsible for all costs and expenses incurred by Forage in connection with such collection activity, including collection fees, court costs and attorneys’ fees. You further agree that Forage may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due. You may cancel your subscription at any time. If you cancel, you will not be billed for any additional terms of service, and service will continue until the end of the current Subscription Term. If you cancel, you will not receive a refund for any service already paid for.

7. TERMINATION

This Agreement will terminate on the earlier of (i) when you cancel your User account with Forage, and (ii) when Forage terminates your account or access to the Services. Upon any termination of this Agreement, You must cease any further use of the Services. If at any time You are not happy with the Services, Your sole remedy is to cease using the Services. Forage can terminate this Agreement and/or your right to access or use the Services at any time, without notice, including where Forage reasonably considers that: (a) your use violates this Agreement or applicable law; (b) you fraudulently use or misuse the Services; (c) we are unable to continue providing the Services to you due to technical or legitimate business reasons or (d) your use is otherwise inappropriate for continued access and use of the Services. You acknowledge and agree that we may suspend or terminate and/or deny you access to, use of, all or part of the Services, without prior notice, and you will remain liable for all amounts owed by you up to and including the date of termination. Unless otherwise expressly agreed in writing, You agree that upon termination, either by You or us, we may delete all data related to your account and may bar your access to your account and the Services. Further, you agree that we shall not be liable to you or any third-party for any termination of your access to the Services. Sections 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and Exhibit A shall survive any termination or expiration of this Agreement.

8. PROPRIETARY RIGHTS

Forage and/or its suppliers or other partners or contractors, as applicable, retain ownership of all proprietary rights in the Services and in all trade names, trademarks, service marks, logos, and domain names (“Forage Marks”) associated or displayed with the Services. You may not frame or utilize framing techniques to enclose any Forage Marks, or other proprietary information (including images, text, page layout, or form) of Forage without express written consent. You may not use any meta tags or any other “hidden text” utilizing Forage Marks without Forage’s express written consent.

9. COPYRIGHT

You may not post, modify, distribute, or reproduce in any way copyrighted material, trademarks, rights of publicity or other proprietary rights without obtaining the prior written consent of the owner of such proprietary rights. Forage may deny access to the Services to any User who is alleged to infringe another party’s copyright. Without limiting the foregoing, if You believe that Your copyright has been infringed, please notify Forage in writing immediately at: [help@foragegroup.com]

10. EXPORT RESTRICTIONS

You acknowledge that the Services, or a portion thereof, are subject to the Export Administration Regulations, 15 C.F.R. Parts 730-774, of the United States and may be subject to other applicable country export control and trade sanctions laws (“Export Control and Sanctions laws”). Forage will provide the U.S. export classification(s) applicable to its Services upon request. You and Your Users may not access, use, export, re-export, divert, transfer or disclose any portion of the Services or any related technical information or materials, directly or indirectly, in violation of Export Control and Sanctions laws. You represent and warrant that: (i) You and Your Users (a) are not citizens of, or located within, a country or territory that is subject to U.S. trade sanctions or other significant trade restrictions (including without limitation Cuba, Iran, North Korea, Syria, and the Crimea region of Ukraine) and that You and Your Users will not access or use the Services, or export, re-export, divert, or transfer the Services, in or to such countries or territories; (b) are not persons, or owned 50% or more, individually or in the aggregate by persons, identified on the U.S. Department of the Treasury’s Specially Designated Nationals and Blocked Persons List or Foreign Sanctions Evaders Lists; and (c) are not persons on the U.S. Department of Commerce’s Denied Persons List, Entity List, or Unverified List, or U.S. Department of State proliferation-related lists; (ii) You and Your Users located in China, Russia, or Venezuela are not Users associated with any foreign military and will not put Forage’s Services to a Military End Use, as defined in 15 C.F.R. 744.21; (iii) no Content created or submitted by You or Your Users is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control and Sanctions laws; and (iv) You and Your Users will not take any action that would constitute a violation of, or be penalized under, U.S. antiboycott laws administered by the U.S. Department of Commerce or the U.S. Department of the Treasury. You are solely responsible for complying with the Export Control and Sanctions laws and monitoring them for any modifications.

11. INJUNCTIVE RELIEF

You acknowledge that any use of the Services contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Services, may cause irreparable injury to Forage, its affiliates, suppliers and any other party authorized by Forage to resell, distribute, or promote the Services (“Resellers”), and under such circumstances Forage, its affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.

12. NO WARRANTIES

YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED “AS IS” AND FORAGE, ITS AFFILIATES, SUPPLIERS AND RESELLERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. FORAGE, ITS AFFILIATES, SUPPLIERS AND RESELLERS MAKE NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT THE SERVICES WILL MEET ANY USER’S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF THE SERVICES IS AT YOUR SOLE RISK. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU RESULTING FROM THE USE OF THE SERVICES. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SERVICES REMAINS WITH YOU. FORAGE DOES NOT ASSUME ANY RESPONSIBILITY FOR RETENTION OF ANY USER INFORMATION OR COMMUNICATIONS BETWEEN USERS. FORAGE CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SERVICES. USE IS AT YOUR OWN RISK.

13. INDEMNIFICATION

You agree to indemnify, defend and hold harmless Forage, its affiliates, officers, directors, employees, consultants, agents, suppliers and Resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys’ fees) arising from Your use of the Services, Your violation of this Agreement or the infringement or violation by You or any other User who accesses the Services in Your account, of any intellectual property or other right of any person or entity or applicable law.

14. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FORAGE, ITS AFFILIATES, SUBSIDIARIES, PARENTS, SUCCESSORS AND ASSIGNS, AND EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SHAREHOLDERS (COLLECTIVELY “FORAGE” FOR PURPOSES OF THIS SECTION 14), BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY FORAGE, SERVICE INTERRUPTIONS, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT, STATEMENTS OR CONDUCT OF ANY THIRD PARTY REGARDING THE SERVICES, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT, HOWEVER ARISING, REGARDLESS OF LEGAL THEORY, WHETHER BASED ON TORT, STRICT LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY OR ANY OTHER LEGAL THEORY, EVEN IF FORAGE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT FORAGE HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY GOODS OR SERVICES PROVIDED TO YOU OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT. IN NO EVENT WILL FORAGE OR ITS AFFILIATES, SUPPLIERS OR RESELLERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS OR DAMAGE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT SERVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE) CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF FORAGE, ITS AFFILIATES, SUPPLIERS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, FORAGE’S, ITS AFFILIATES’, SUPPLIERS’ AND RESELLERS’ MAXIMUM CUMULATIVE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY YOU, IF ANY, TO FORAGE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM FOR THE SERVICES, BUT IN NO EVENT GREATER THAN FIVE THOUSAND DOLLARS ($5,000.00). THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF FORAGE ARISING OUT OF THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE, OR OTHERWISE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to You.

15. AGREEMENT TO ARBITRATE; WAIVER OF CLASS ACTION

If You are located in the United States, You expressly agree to resolve disputes exclusively on an individual basis, through arbitration pursuant to the provisions of Exhibit A.  The parties expressly waive any right to bring any action, lawsuit, or proceeding as a class or collective action, private attorney general action, or any other proceeding in which any party acts or proposes to act in a representative capacity. BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU AND FORAGE ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS AGREEMENT.

16. PRIVACY AND OTHER POLICIES

Use of the Services is also subject to Forage’s Privacy Policy, a link to which can be found by selecting “Privacy Policy” in the footer of Forage’s website. The Privacy Policy, and all other policies available at Foragenow.com, are incorporated into this Agreement by this reference. Furthermore, if Your use of the Services requires Forage to process any personally identifiable information (“PII” or “Personal Data”) Forage shall do so at all times in compliance with our Forage Global Data Processing Addendum available at Foragenow.com, which is incorporated in these Terms of Service. Additionally, You understand and agree that Forage may contact You via e-mail or otherwise with information relevant to Your use of the Services, regardless of whether You have opted out of receiving marketing communications or notices.

17. MISCELLANEOUS

7.1 Choice of law and Forum. This Agreement shall be governed by and construed under the laws of the State of New York, U.S.A., as applied to agreements entered into and to be performed in New York by New York residents. Except as provided in Exhibit A, the Parties consent to the exclusive jurisdiction and venue of the state courts located in and serving New York County, New York and the federal courts in the Southern District of New York.

17.2 Waiver and Severability. Failure by either Party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.

17.3 General Provisions. This Agreement embodies the entire understanding and agreement between the Parties respecting the subject matter of this Agreement and supersedes any and all prior understandings and agreements between the Parties respecting such subject matter, except that if You or Your company have executed a separate written agreement or you have signed an order form referencing a separate agreement governing your use of the Services, then such agreement shall control to the extent that any provision of this Agreement conflicts with the terms of such agreement. Forage may elect to change or supplement the terms of this Agreement from time to time at its sole discretion. Forage will exercise commercially reasonable business efforts to provide notice to You of any material changes to this Agreement. Within ten (10) business days of posting changes to this Agreement (or ten (10) business days from the date of notice, if such is provided), they will be binding on You. If You do not agree with the changes, You must discontinue using the Services. If You continue using the Services after such ten-business-day period, You will be deemed to have accepted the changes to the terms of this Agreement. In order to participate in certain Services, You may be notified that You are required to download software and/or agree to additional terms and conditions. Unless expressly set forth in such additional terms and conditions, those additional terms are hereby incorporated into this Agreement. This Agreement has been prepared in the English language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes.

Exhibit A

Binding Arbitration

This Exhibit A to the Agreement describes the further provisions which apply to the Binding Arbitration and Class Action Waiver.

  • a. Disputes. A dispute is any controversy between You and Forage concerning the Services, any software related to the Services, the price of the Services, Your account, Forage’s advertising, marketing, or communications, Your purchase transaction or billing, or any term of this Agreement, under any legal theory including contract, warranty, tort, statute, or regulation, except disputes relating to the enforcement or validity of Your or Forage’s intellectual property rights. As part of the best efforts process to resolve disputes, and prior to initiating arbitration proceedings, each party agrees to provide notice of the dispute to the other party, including a description of the dispute, what efforts have been made to resolve it, and what the disputing party is requesting as resolution, to help@foragegroup.com.
  • b. Small Claims Court Available. You may initiate an action in your local Small Claims Court if You meets the court’s requirements. However, if such a claim is transferred, removed or appealed to a different court, Forage reserves the right to require arbitration.
  • c. Arbitration Procedure. Disputes not resolved pursuant to Section A or B shall be resolved through arbitration. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. The American Arbitration Association (“AAA”) will conduct any arbitration under its Commercial Arbitration Rules. For more information, see www.adr.org. Arbitration hearings will take place in the federal judicial district of Your primary business location. A single arbitrator will be appointed. The arbitrator must: (a) follow all applicable substantive law; (b) follow applicable statutes of limitations; (c) honor valid claims of privilege; (d) issue a written decision including the reasons for the award. The arbitrator may award damages, declaratory or injunctive relief, and costs (including reasonable attorneys’ fees). Any arbitration award may be enforced (such as through a judgment) in any court with jurisdiction.  Under AAA Rules, the arbitrator rules on his or her own jurisdiction, including the arbitrability of any claim; however, a court has exclusive authority to enforce the prohibition on arbitration on a class-wide basis or in a representative capacity .
  • d. Arbitration Fees. If You are unable to afford the arbitration costs and are otherwise required to pay a filing fee under the relevant AAA Rules, Forage agrees that, unless your claim is for $5,000 or more, your share of the filing and arbitration fees is limited to $50, and that, after you submit proof of payment of the filing fee to Forage, Forage will promptly reimburse you for all but $50 of the filing fee, subject to the arbitrator’s determination if costs should be reimbursed to Forage if Forage prevails. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the claim is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. For disputes involving more than $5,000, the AAA rules will govern payment of filing fees and the AAA’s and arbitrator’s fees and expenses.
  • e. Conflict with AAA Rules. This Agreement governs if there is a conflict with the AAA’s Commercial Arbitration Rules.
  • f. Requirement to File Within One Year. Notwithstanding any other statute of limitations, a claim or dispute under this Agreement must be filed in Small Claims Court or noticed for arbitration within one year of when it could first be filed, or such claim will be permanently barred.
  • g. Severability. If the class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, then those parts will not be arbitrated but will be resolved in court, with the balance resolved through arbitration. If any provision of this Exhibit A is found to be illegal or unenforceable, then that provision will be severed; however, the remaining provisions shall still apply and shall be interpreted to as nearly as possible achieve the original intent of this Exhibit, inclusive of the severed provision.