Terms of Use

Legal

Terms of Use

These Terms of Use require dispute resolution through arbitration for disputes related to this Agreement (other than disputes related to patent, copyright, or trademark matters) and limit remedies to you in the event of a dispute. By clicking on “I agree,” which means accepting these Terms of Use and our Privacy Policy, YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY AND TO PARTICIPATE AS A PLAINTIFF OR A CLASS MEMBER IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING IN ANY FORUM. The arbitration agreement described below in these Terms of Use requires you to pay fees and costs for a Frivolous Claim and includes a one (1)-year deadline in which to bring a claim. 

SUNFLOWER ACADEMY® 
Terms of Use  
Effective DECEMBER 15, 2021

Welcome to Sunflower Academy, powered by SunVia™!   

This Sunflower Academy® website (www.sunfloweracademy.com or “Website”) includes many ways to engage with Sunflower Academy, which is operated and brought to you by SunVia Corp. in collaboration with Sunflower Process, LLC (“we,” “our,” “us,” or Sunflower Academy”).   These Terms of Use (“Terms”) apply to

  • any person interacting with and accessing the Sunflower Academy, the Website, or our Services through any means, including but not limited to applying to participate in a Sunflower Academy cohort, participating in our on-line forum (which is also governed by our Community Guidelines), and participating in any 3D interactive Sunflower Academy worlds (collectively, unless otherwise noted “you,” or “your”); and  
  • any content purchased, obtained or otherwise acquired or accessed through the Website, including the Sunflower Academy and its curriculum and online forums, a Session (as defined below), and any related services (collectively the “Services”). 

These Terms together with our Privacy Policy (collectively “Agreement”) form a binding contract between you and SunVia, regarding your use of the Website and/or participation in the Services. By accessing, browsing, and/or using the Website and/or participating in the Services, you acknowledge and represent that (1) you are 18 years of age or older and (2) you have read, understood, and agree to be legally bound by this Agreement and its counterparts; and (3) you represent, warrant, understand, agree to, and accept all terms and conditions contained therein.

If you are not at least 18 years of age and do not agree to be bound by this Agreement, you may not use the Website or participate in the Services. 

Unless otherwise stated herein, we have the right at any time to amend this Agreement, effective immediately upon notice on the Website. Any use of the Website by you after such notice is subject to the amendments.

1. INTRODUCTION TO THE SERVICES

The Services are based in whole or in part on the Sunflower® and Sunflower Model® executive and leadership development platforms created by the founders of Sunflower Process, LLC, which is the owner of the trademarks for Sunflower®Sunflower Model®, and Sunflower Academy®.  In collaboration with Sunflower Process, LLC, we bring together the latest collaborative technology using various formats such as video, audio, 3D worlds, and interactive boards to deliver the Sunflower Academy.

1.1. Participants in the On-Line Community

The Website provides different levels of interactions and Services for different types of visitors.  Sunflower Academy in its sole discretion assigns a status based on your affiliation with us to determine your access to different types and levels of Services, including but not limited to “Public” (visitors to the Website seeking information about the Services) and “Registered Users” who register and/or complete a profile on the site. Registered Users include “Members,” “Cohort Members,” and “Scholars,” with each status assigned different access privileges to our content and the forums.  Our approval of registrants for and participants in the Sunflower Academy and assignment of a status, which determines access to different groups or forum topics, are functions exclusive to us and within our sole discretion.  

Applying to participate in the Services may require additional such steps as: (i) completing a registration profile on our Website; (ii) providing us with information about your company, the team, and the product or service; and (iii) sharing company documents and information and, when appropriate, subject to a confidentiality agreement, so that we can determine how and whether to provide the Services.   

Sunflower Academy and its associated forums are also governed by Community Guidelines, which give us the right to moderate the forums and enforce violations of the guidelines.

1.2. Participation in a Session

Interacting with Sunflower Academy in a live interchange is a “Session.”  Not all companies, even if they are accepted to participate in the Sunflower Academy, are candidates for a Session.  We reserve the right in our sole discretion to determine how and whether we will work with a person or company who seeks or obtains Services through a Session.

1.3. Limitations on Services

The Services do not include investment by SunVia. Nor do the Services include any legal advice, accounting advice, or any guarantee of investment from any investor.  SunVia is not responsible for compliance with any securities, data, or other legal obligations related to our Services, solicitations for investment, or other activities that may take place within the context of our Services.  You are solely responsible for the conduct, documentation, and other requirements related to investments and/or securities.

SunVia may choose to offer additional services, under other terms and conditions, either through itself, an affiliate, which may include advisory board services and referrals to a network of professional service providers. Any such referrals to professionals are suggestions only. It is always your responsibility to enter into your own negotiations and agreements with any such providers and determine how or whether you would like to work with them.

1.4. Conditions on Continued Participation in a Session or Services

We are passionate about the companies we choose to accept as participants for the Sunflower Academy and the Services.  We must therefore reserve the right, in our sole discretion, to discontinue working with you should you not be available to participate in a timely manner, violate any participation agreement for Sunflower Academy, violate these Terms or the forums’ Community Guidelines.

1.5. Third Parties

The Services also rely on and include use of third-party software or platforms (“Third-Party Services”) that may be accessible from the Website. To the extent that our Services are enabled or delivered with or through any Third-Party Services, such as your ISP or our website hosting partners such as WPEngine (https://wpengine.com/legal/privacy/) or data we have hosted by an independent data storage provider, or multimedia services provided through Miro (https://miro.com/legal/terms-of-service/)the terms of that relationship will be governed by documents furnished by that third party.  Whether or not we furnish a link to the terms of those independent third parties, you are responsible for your choice to agree to those terms.  You are strongly encouraged to review any policies that apply to you.  Any links provided here are for convenience only; you are otherwise bound by the terms set forth by those third parties.

2. YOUR RIGHT TO USE THE WEBSITE

We grant you a non-exclusive, personal, and revocable right to access the Website and our Services and to use them for only lawful purposes.  You are responsible for protecting the confidentiality of your password(s), and for the acts and omissions of any third party that accesses the website through use of your password, as if such acts and omissions were your own.  We shall have the right at any time to change or discontinue any aspect or feature of the Website, including, but not limited to, content on the Website and any information needed for access or use or to register and/or have access to any of the Services.

3. CONDUCT IN USING THE WEBSITE

3.1 Intellectual Property

The Website contains copyrighted material, trademarks and other proprietary information, which may include, but is not limited to, text, software, photos, video, graphics, music and sound. We own a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original, granted or assigned to us. You may not modify, publish, transmit, participate in the transfer or sale of, create derivative works, publicly distribute, publicly display, reproduce, publicly perform, or in any way exploit in any format whatsoever (including, without limitation, print, digital, and electronic formats) any of the Website content, without our prior written authorization. This material includes, but is not limited to, the design, layout, look, appearance and graphics. You acknowledge that you do not acquire any ownership rights by downloading, viewing, or accessing copyrighted material. We rely on and use the trademarks Sunflower Academy®, Sunflower®, and Sunflower Model® with the consent of their owner Sunflower Process, LLC.  You may not modify or rely on or exploit in any format whatsoever (including, without limitation, print, digital, and electronic formats) the Sunflower Academy®, Sunflower®, and Sunflower Model® trademarks or content based on them. Without limiting the foregoing, all marks and content found or displayed on the Website are otherwise owned by their respective owners

3.2 Works and Material You Submit to the Website

You shall not upload, post or otherwise make available on the Website any works or material protected by copyright, trademark or other proprietary right without the express written permission of the owner of the copyright, trademark or other proprietary right and the burden of determining that any works or material are not so protected rests entirely with you. You are liable for any damage resulting from any infringement of copyrights, trademarks, or other proprietary rights, or any other harm resulting from such a submission. For all works, information, content, and material submitted by you to the Website, you automatically grant, or warrant that the owner of such material has expressly granted, us a royalty-free, perpetual, irrevocable, worldwide, fully-paid up license to use, reproduce, create derivative works, publicly distribute, publicly perform, publicly display, create advertisements or marketing materials, assume any sound recording rights or moral rights of attribution or integrity, transmit, modify, adapt, publish, translate and distribute such material (in whole or in part) worldwide and/or to incorporate it in other works or the Services in any form, media or technology now known or hereafter developed (including, without limitation, print and electronic form, media and technology) for the full term of any copyright or other protection that may exist in such works or materials, for our legitimate business purposes. Except as limited under applicable law, and subject to any functionality on the Website allowing you to restrict access, you also permit any other Website user to access, view, store or reproduce the works or materials consistent with the provision entitled “Your Right to Use the Website.”   

You are consenting to our use and sharing of any information or content (i.e. data), including Personal Information, that is submitted to or collected by us in accord with these Terms and our Privacy Policy.  Therefore, we may use such data in the normal course of business, to provide our Services, to improve our Services, or to otherwise support our Services and/or Services delivery.  We may also use data: 

  • In response to legal process, such as a search warrant, court order, or subpoena, or when we have a good faith belief that the law requires us to do so; 
  • To detect, prevent, investigate, or address fraud, illegal activity, or violations of our terms and agreements;
  • With our current and future subsidiaries or corporate affiliates or actual or potential investors; 
  • In connection with a potential or actual sale, merger, transfer, exchange, reorganization or other disposition (whether of assets, stock, or otherwise) of all or a portion of the business conducted by or related to our Services. If such a transaction occurs, the acquiring company’s use of your information will remain subject to these terms and any related policy, as may be subsequently amended; 
  • Any other purposes described in these Terms or our Privacy Policy; or 
  • When we otherwise have your permission.

3.3 No Unauthorized Access and Unauthorized Activities on the Website

The Website is only available for the authorized uses described in this Agreement. Unauthorized activities, include, but are not limited to: any access and use of the Website for automated access, screen or data scraping, data acquisition and consolidation, automated offers; using the Website in an attempt to break security, or so as to actually break security of any computer network (including, without limitation, the Website itself); using the Website for unauthorized relays through any third party systems; attempting, in any way, to interfere with or deny service to any user or any host on the Internet; using the Website to engage in unsolicited commercial email, or to add or attempt to add addresses to any mailing list (yours or a third party’s); using the Website to engage in flood attacks, which are defined as overburdening a recipient computer system by sending a high volume of spurious data that effectively impedes or totally disables functionality of the recipient system(s), or any other denial of service attacks; furnishing false data on your sign-up form, contract, or online application, including, without limitation, providing fraudulent payment information; actively engaging in or authorizing making the Website or any portion available as part of a “co-branded” or private label” website, web service, or Internet access service, or as part of a “channel” through a software or Internet service, or similar arrangements or relationships that offer or provide access to the Website from or through other websites, web services, or Internet access services.

3.4 Data and Content Submissions and Collections

You understand and agree that these Terms along with our Privacy Policy and other privacy-related disclaimers, pop-up boxes, and other similar notifications, such as our cookie policy and notices, shall govern the collection and use of data obtained by us through your content submissions and access to the Services.  You agree that we may use data about you and your behavior, along with content you submit to the Services, for our business purposes.  (Please, rest assured, we do not sell your data for advertising purposes.) 

You are under no obligation to submit anything to us. However, in order for us to provide the Services, we need your permission to process, display, reproduce, and otherwise use content you make available to us.  We may also create or use de-identified content to create, administer, maintain, improve, support, deliver and analyze our Services.  Therefore, if you choose to submit any content to us, or otherwise make available any content through the Services, you hereby grant to us your permission to use the content and data we collect from you through a perpetual, irrevocable, transferrable, sub-licensable, non-exclusive, worldwide, royalty-free, fully-paid license to reproduce, use, modify, display, perform, transmit, distribute, translate, and create derivative works from any such content, including without limitation distributing part or all of the content in any media format through any media channels, to comply with applicable law or court order, or as necessary to provide the Services or our own purposes.  We likewise reserve the right to withhold, remove, and/or discard any such content at any time.

You understand and acknowledge that you are fully aware and responsible for the impact of sharing content with us, and you agree that we shall not be held responsible, and we shall be released and held harmless by you from any liability or damages arising out of such content sharing.

With regard to content that contains medical, health, financial, genetic, or other sensitive information, you are encouraged to utilize sensible privacy and sharing practices.  To the extent that your content or general use of the Service includes or reflects any sensitive information, you may refer to our Privacy Policy for additional information regarding our treatment of this information.  Your privacy is important to us and we do employ a variety of privacy and security controls to protect you and Content you post/share, however, you are also strongly encouraged to post and share responsibly.

3.5 De-Identified Information

We may de-identify any data or information collected or shared with us in any way, including Personal Information (“De-Identified Information”), and subsequently use and disclose De-Identified Information for any legitimate business purpose whatsoever.  In consideration of our provision of the Services, you hereby transfer and assign to us all rights, title and interest in and to all De-Identified Information that we make from your Personal Information. You agree that we may use, disclose, market, license and sell such De-Identified Information for any legitimate business purpose without restriction, and that you have no interest in such information, or in the proceeds of any sale, license, or other commercialization thereof. You acknowledge that the rights conferred by this Section constitute principal consideration for the provision of the Services, without which we would not enter into this Agreement.

4. MONITORING

We have the right, but not the obligation, to monitor all content of the Website, including the forums accessible through the Sunflower Academy community, to determine compliance with this Agreement, any other agreement between you and us, and any operating rules established by us, as well as to satisfy any law, regulation, authorized government request, or trade association guideline. We have the right to edit, refuse to post or remove any material submitted to or posted on the Website. You acknowledge and agree that any communication or material you post or transmit to the Website is, and will be treated as, non-confidential and non-proprietary. Without limiting the foregoing, we shall have the right to remove any material that we find violates this Agreement, may cause liability for us, or is otherwise objectionable.

5. DISCLAIMER

EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, YOU ACKNOWLEDGE AND AGREE THAT THE WEBSITE AND ITS CONTENTS AND THE SERVICES THAT MAY BE OBTAINED THEREFROM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.  WE DO NOT MAKE ANY, AND SPECIFICALLY DISCLAIM ANY, REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE WEBSITE OR ITS CONTENTS OR THE SERVICES OFFERED THROUGH CREATING A PROFILE, REGISTERING ON THE WEBSITE, OR REQUESTING, OBTAINING OR RECEIVING SERVICES INCLUDING, WITHOUT LIMITATION, ANY LIABILITY REGARDING OR ARISING FROM: (A) MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; (B) COURSE OF DEALING, COURSE OF USAGE, OR COURSE OF PERFORMANCE; OR (C) TIMELINESS, ACCURACY, RELIABILITY, ACCESSIBILITY, OR CONTENT OF THE WEBSITE.

AS TO ANY INFORMATION PROVIDED THROUGH THE WEBSITE UNDER THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DISCLAIM ANY WARRANTY REGARDING THE PROFITABILITY OF TRANSACTIONS EXECUTED ON OR ARISING FROM ANY USE OF THE WEBSITE OR SERVICES OBTAINED THEREFROM OR THE RESULTS TO BE OBTAINED FROM THE USE OF THE INFORMATION ON THE WEBSITE. 

INFORMATION ON THE WEBSITE OR DELIVERED VIA THE SERVICES IS NOT INTENDED TO PROVIDE LEGAL, FINANCIAL, ACCOUNTING, TAX OR OTHER ADVICE, AND SHOULD NOT BE RELIED UPON AS PROFESSIONAL ADVICE.

6. LIMITATION OF LIABILITY

WE ARE NOT LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, OR ANY OTHER DAMAGES (COLLECTIVELY, THE “DAMAGES”), ARISING OUT OF YOUR USE OR INABILITY TO USE THE WEBSITE OR THE SERVICES. THIS PROVISION ENTITLED “LIMITATION OF LIABILITY” APPLIES REGARDLESS OF: (A) OUR NEGLIGENCE; (B) OUR GROSS NEGLIGENCE; (C) ANY FAILURE OF AN ESSENTIAL PURPOSE; AND (D) WHETHER SUCH LIABILITY ARISES IN NEGLIGENCE, CONTRACT, TORT, OR ANY OTHER THEORY OF LEGAL LIABILITY. THIS PROVISION APPLIES EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN THE DAMAGES. IN THOSE STATES THAT DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR THE DAMAGES, OUR LIABILITY IS LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY LAW. WE ARE NOT RESPONSIBLE AND NOT LIABLE FOR ANY INFORMATION, PRODUCTS, OR SERVICES PROVIDED BY OTHER WEBSITES THAT LINK TO OR FROM THE WEBSITE.

7. TERMINATION

Either we or you may terminate this Agreement at any time. Without limiting the foregoing, we shall have the right to immediately terminate this Agreement, as to you, by terminating your access to the Website, which includes access to the Sunflower Academy and the online forums and other Services associated with it, for our convenience, for any reason or no reason, or for any breach by you of this Agreement. You may terminate this Agreement by deleting your profile or registration and ceasing to use the Website, but if you use the Website again in the future, then you will have agreed to this Agreement again or whatever Terms are in effect at that time.

8. SUNVIA™ and SUNFLOWER® TRADEMARKS

SunVia, which operates Sunflower Academy with the consent of the owner of the Sunflower®, Sunflower Model®, and Sunflower Academy® registered trademarks, has its own pending trademarks for the goods and services that SunVia offers.  You gain no rights in our trademarks, service marks or trade names through your use of the Website or the Services.

9. NO ENDORSEMENTS OR REPRESENTATIONS

We neither endorse nor are responsible for the accuracy or reliability of any opinion, advice or statement made on or off the Website, whether in a Session or in a forumincluding any statement or comment by a mentor, a scholar, or other members of a cohort. It is your responsibility to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other content available through the Website.  Advice of your own independent professional, legal, accounting, tax or other professional service may be necessary for you regarding the evaluation of any specific information, opinion, advice, Services, or other content obtained by or through the Website or the Services, including any information obtained through participation in the Sunflower Academy.

10. ARBITRATION AGREEMENT: Please read this section carefully. It affects your legal rights.

This Arbitration Agreement (“Arbitration Agreement”), which governs all matters arising under or related to these Terms and the Privacy Policy, excluding any matters relating to copyright, trademark, or patents, is a condition of the Terms and Privacy Policy. Its effective date is December 15, 2021 (the “Effective Date”). 

General. Most concerns can be resolved quickly by contacting us directly. In the unlikely event that we are unable to resolve a legitimate legal complaint, we each agree to resolve those disputes through binding arbitration or small claims court instead of in courts of general jurisdiction.  Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, generally allows for more limited discovery than in court, and is subject to very limited review by courts. However, sometimes the costs of an arbitration can exceed costs that would be incurred in litigation.  Arbitrators can award the same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. You understand that any award available under arbitration is subject to the limitations in these Terms.  YOU UNDERSTAND AND AGREE THAT THIS ARBITRATION AGREEMENT MEANS THAT YOU AND SUNVIA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

10.1. Attempt to Resolve Informally 

We want to address your concerns without a formal arbitration or case.  So before filing a claim against us, you agree to make a good faith effort to try to resolve the dispute informally with us by contacting disputenotice@sunvia.com (“Dispute Notice”) and responding promptly to any related communications. Your Notice to us must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought and the specific applicable legal basis for the requested relief (“Demand”).  We will try to resolve the dispute by contacting you via email at the address from which you send the Dispute Notice email or the email address that you used to register or create your account. If a dispute is not resolved within 45 days of your sending us the Notice, you or SunVia may bring a formal arbitration proceeding pursuant to Section 10.5 below. 

10.2. Application of American Arbitration Association Rules

If you reside in the United States or are otherwise subject to the U.S. Federal Arbitration Act, you agree that any and all disputes or claims that have arisen or may arise between us, except as set forth below (“Exceptions”), shall be resolved exclusively through final and binding arbitration rather than in court. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.  Any arbitration proceedings shall be conducted by the American Arbitration Association (“AAA”) under its rules and procedures applicable at that time, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (to the extent applicable), as modified by our Arbitration Agreement. For disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules for Emergency Measures of Protection shall apply. You may review those rules and procedures, and obtain a form for initiating arbitration proceedings, at the AAA’s website. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting us.

10.3. Location of Arbitration

The arbitration shall be held in Austin, Texas or at another mutually agreed location. If the reasonable value of the relief sought is U.S. $10,000 or less, either of us may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on us subject to the arbitrator’s discretion to require an in-person hearing. Attendance at an in-person hearing may be made by telephone by you and/or us unless the arbitrator requires otherwise.

10.4. Exceptions

Notwithstanding the foregoing, nothing in this Arbitration Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; or (c) seek injunctive relief in a court of law in aid of arbitration.

10.5. Notice Address/Demand for Arbitration/Confidentiality

If our good faith negotiations are not successful and you decide to file a formal arbitration proceeding, you must use this address to notify us of the AAA proceeding: General Counsel, SunVia Corp., 501 Congress Ave., Suite 150, Austin, Texas 78701.   

All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or us must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.

10.6. Texas Law Controls

The arbitrator will decide the substance of all claims in accordance with the laws of the State of Texas, including recognized principles of equity and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different participants or users of the Website or Services but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction over the parties, except for a limited right of appeal under the Federal Arbitration Act.  The arbitration will be conducted in English.

10.7. Opt-Out Procedure

If you do not wish to resolve disputes by binding arbitration, you may opt out of this Arbitration Agreement within 30 days after the date that you agree to the Terms by sending a letter to General Counsel, SunVia Corp., 501 Congress Ave., Suite 150 Austin, Texas 78701 or an email to disputenotice@sunvia.com that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once we receive your Opt-Out Notice, this Arbitration Agreement will be void and any action arising out of the Terms or Privacy Policy will be resolved under the governing law and jurisdiction set forth in the Terms and Privacy Policy. The remaining provisions of the Terms and the Privacy Policy will not be affected by your Opt-Out Notice.  

We promise that your decision to opt-out of this Arbitration Provision will not negatively affect your relationship with us. But we do have to enforce the Opt-Out Deadline, so keep in mind that any opt-out request received after the 30-day deadline will not be valid and you must pursue your dispute in arbitration or small claims court.

10.8. Fees And Procedures

The AAA rules will govern the payment of all filing, administration, and arbitrator fees, unless our Arbitration Agreement expressly provides otherwise. If the amount of any claim in an arbitration is U.S. $10,000 or less, we will pay all arbitrator fees associated with the arbitration, so long as: (a) you make a written request for such payment of fees and submit it to the AAA with your Demand for Arbitration; and (b) your claim is not determined by the arbitrator to be frivolous or without merit under SunVia’s Terms /Privacy Policy or otherwise (“Frivolous Claims”). In such case, we will make arrangements to pay all necessary fees directly to the AAA.   

If the amount of the claim exceeds U.S. $10,000 and you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of the filing, administration, and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. If the arbitrator determines the claim(s) you assert in the arbitration are Frivolous Claims, you agree to reimburse us for all fees associated with the arbitration paid by us. Our obligations to pay these fees shall be made after a preliminary determination that the claims are not barred or limited by this Agreement (meaning, the Terms and the Privacy Policy).   Claims that are barred, either by time or other provisions under the Terms, or limited claims, constitute Frivolous Claims.   

In addition to any fees and costs you may be entitled to receive under applicable law, if you send us notice and negotiate in good faith as provided in the section above titled “Attempt to Resolve Informally” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.  If the arbitrator decide that we are the prevailing party, we retain the option to seek our reasonable attorneys’ fee and costs as determined by the arbitrator.

The arbitrator shall decide all issues, including the scope of this Arbitration Agreement.

The arbitrator shall issue a decision in writing but need not given the reasons for the decision.

The AAA website has resources available for anyone seeking to proceed without legal counsel (“pro se”) at https://www.adr.org/pro-se.

10.9. PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS

YOU AND WE AGREE AS PART OF THE ARBITRATION AGREEMENT, THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. WE REFER TO THIS AS THE “PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS.” UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN YOUR OR OUR CLAIM WITH ANOTHER PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE OR CLASS PROCEEDING. THE ARBITRATOR MAY ONLY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER REGISTERED USERS OR VISITORS.

10.10 Enforceability

Except with respect to the Prohibition of Class and Representative Actions, if a court decides that any part of this Arbitration Agreement is invalid or unenforceable, the other parts of this Arbitration Agreement shall continue to apply. If a court decides that the Prohibition of Class and Representative Actions is invalid or unenforceable, then the entire Arbitration Agreement shall be null and void.

10.11. Modifications

If we make any future change to this Arbitration Agreement, other than a change to our Notice Address, you may reject the change by sending us written notice within 30 days of the change to the Notice Address(a) by U.S. Mail or commercial carrier to General Counsel, SunVia Corp., 501 Congress Ave., Suite 150 Austin, Texas 78701 or (b) by email to disputenotice@sunvia.com. The Arbitration Agreement in effect immediately prior to the changes you rejected will survive.

10.12. CLAIMS ARE TIME-BARRED

You agree that regardless of any statute or law to the contrary or the applicable dispute resolution process, any claim or cause of action you may have arising out of or related to use of the Services or otherwise under these Terms must be filed within one (1) year after such claim or cause of action rose or you agree to be forever barred from bringing such claims. 

11. MISCELLANEOUS

11.1 Entire Agreement and Amendments

This Agreement is the entire agreement between you and us and supersedes all earlier and simultaneous agreements or communications regarding the subject matter. This provision does not negate or nullify any signed confidentiality or non-disclosure agreement that may exist between you and SunVia for Sunflower Academy Services.

11.2 Governing Law and Forum

All claims regarding this Agreement are governed by and construed in accordance with the Laws of Texas and the United States, applicable to contracts wholly made and performed in such jurisdiction, except for any choice or conflict of law principles, and must be litigated in Austin, Texas regardless of the inconvenience of the forum, except that we may seek temporary injunctive relief in any venue of our choosing.  For any dispute that is not subject to the Arbitration Agreement you agree to the exclusive jurisdiction of the federal and state courts in Austin, Texas and agree to waive any challenge to lack of personal jurisdiction or improper venue.  You and we acknowledge and agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.

11.3 No Waivers, Cumulative Remedies

Our failure to insist upon strict performance of any provision of this Agreement is not a waiver of any of our rights under this Agreement. All of our remedies under this Agreement, at Law or in equity, are cumulative and nonexclusive.

11.4 Severability

If any portion of this Agreement is held to be unenforceable, the unenforceable portion must be construed as nearly as possible to reflect our original intent, the remaining portions remain in full force and effect, and the unenforceable portion remains enforceable in all other contexts and jurisdictions.

11.5 Assignment

You may not assign or transfer this Agreement, in whole or in part, without our prior written consent, which may be withheld at our sole discretion. We may freely assign this Agreement in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise.

11.6 Captions and Terms

All captions are for purposes of convenience only and are not to be used in the interpretation or enforcement of this Agreement. Terms defined in the singular have the same meaning in the plural and vice versa.

NOTICES: If you need to reach us or send us any notice required under this Agreement, except for the  Dispute Notice email in Section 10, please send us an email at info@sunvia.com.