Section A Terms 

Last Updated: April 1, 2024 (Section A) 

The Mandatory Arbitration Provision and Class Action Waiver at Disputes (Dispute Resolution, Class Action Waiver, Arbitration Agreement) below govern the resolution of disputes. Please read them carefully. If you do not agree with these terms (as defined below), including the Mandatory Arbitration Provision (if you have not opted as allowed herein) and class action waiver, please do not use the Services or Platform. 

1 Introduction

Thank you for choosing ActiveDraft. ActiveDraft LLC, along with any parent, subsidiary, or affiliate companies, are referred to in these provisions as the “ActiveDraft Group Companies” or simply “ActiveDraft,” “we”, “our”, or “us”. We provide an online technology platform (“Platform”) that includes hardware, hosted software, networks, or other information technology resources owned, subscribed to, or licensed by ActiveDraft, including our website located at www.activedraft.com and our hosted Subscription Service offerings (each, a “Service”).  

2 Legal Agreement

These Terms of Service (“Terms”) are a legal agreement (“Agreement”) between you and ActiveDraft. By clicking “I Agree,” otherwise indicating acceptance electronically, or by accessing our Platform or using a Service, you enter into a binding contract with us and agree to this Agreement. If you do not agree to this Agreement, then you may not access the Platform or use any Service. If you are an individual acting on behalf of your company or other entity (Business as defined below), you accept these provisions on your and its behalf and the term “you” will refer to you or your Business.  

This Agreement includes by reference: 

• ActiveDraft’s Privacy Policy; 
• The provisions in the current version of this Section A which apply to the Platform and Services generally; 
• The provisions in the current version of Section B which include additional provisions for your use of the Services; and, 
• Any additional provisions and conditions provided separately for your use of the Services, including product ordering, activation, payment terms, and the like. 

You must be at least 18 years of age and resident in the United States to access our Platform and use our Services. Our Services are only available to persons who confirm they reside in the United States. By accessing or using our Services you agree that: 

• You can form a binding contract with ActiveDraft (on your behalf, personally, or as an authorized of your company); 
• You are not a person who is prohibited from receiving the Services under the laws of the United States; 
• You reside in the United States and intend to access the Services only from the United States; and 
• You will comply with this Agreement and all applicable local, state, and national laws and regulations of the United States, including import and export regulations. 

3 Users

If you received an Authorized Usage Right (defined as the right to access and use a Service) from an organization or group, including a business or any other commercial entity, government entity, non-profit organization, or educational institution (each, a “Business”), then you, when accessing a Service pursuant to such Authorized Usage Right, are a “Business User” of such Business and your ActiveDraft profile associated with such Authorized Usage Right is your “Business Profile”. If you are a Business User, you agree that, due to your receipt of an Authorized Usage Right from such Business, (i) ActiveDraft may provide such Business with the ability to access, use, remove, retain, and control your Business Profile and all Content therein whether uploaded or imported before or after the date these Terms were last updated; (ii) ActiveDraft may provide your personal information to such Business; and (iii) your access to the Services is further governed and limited by your and such Business’ agreement to these Terms, including as specified by at Service ordering, activation, and payment terms. If you did not receive an Authorized Usage Right from a Business (e.g., you created an ActiveDraft personal account providing access to a Service solely for your individual use), then (a) you are an “Personal User”; (b) your ActiveDraft profile is a personal profile; (c) you maintain sole access and control over all Content in your personal account or personal profile (except as otherwise indicated in the Privacy Policy).  

Use of Business Email Domains As a Personal User or a Business User You may create an ActiveDraft account or an ActiveDraft profile using an email address provided or assigned to you by a Business (such as your work email address). If the Business establishes a direct relationship with us, it may want to add your ActiveDraft account to such relationship. If this happens, the Business may, with prior notice, roll your account and/or profile into the Business’s account. This means the Business may (a) access the account; (b) take control over your profile and/or the account, any Content therein whether stored, uploaded, or imported before or after the date these Terms were last updated; and (c) recommend any non-Business Content associated with such account to be moved to a new account that utilizes an email address not associated with such Business. You, as a Personal or a Business User, also acknowledge that ActiveDraft may provide your personal information to such Business, such as your name, email address, and the like. If you do not want a Business to access, use, remove, retain, or control an account or profile, then do not use a Business email address with that account or profile. 

4 Ownership

You (as a Business or an individual, as applicable) retain all rights and ownership of your Content (as defined below). We do not claim any ownership rights to your Content. 

5 Changes to Agreement

We may modify the provisions of this Agreement from time to time. We may notify you of such modifications by posting through the Platform on our website or by other means. It is important that you review this Agreement whenever we modify it because your continued use of the Platform indicates your agreement to the modifications.  

In some cases, you may need to accept changes to this Agreement to continue using the Platform. If you do not agree to the changes, you may stop using the Platform or terminate your account. 

Similarly, we may update the Platform, including with tools, utilities, improvements or third party applications. You agree to receive these updates. We may further modify, suspend, or discontinue the Platform (including any Service) at any time. You agree that we will not be liable to you or any third party for any modification, suspensions, or discontinuance of the Platform or any Service. 

6 Account

You may need to sign up for an Account to use any Service, or, if you are a Business User who received an Authorized Usage Right to a Service, you may need to set up only a user Profile. In either case, we may need to verify your identity and you authorize us to collect information (e.g., name, email address, etc.) from you to do so (referred to, collectively, as, “Account Information”). You will provide accurate, up-to-date Account Information, and we disclaim any liability arising from your failure to do so. Such failure may further limit your ability to access the Platform and affect a Service’s accuracy and effectiveness. 

You are responsible for securely managing your Account Information, including any password(s) for the Platform (including any Service). You will notify us immediately if you believe that your Account Information or device you use to access the Platform has been lost or stolen or that someone is using your account without your permission. 

7 ActiveDraft Free Access Period

ActiveDraft is offering a free access period to the full functionality of its Subscription Service until June 14, 2024 (the “Free Access Period”). All users who sign up for an ActiveDraft account before May 15, 2024 will be entitled to this Free Access Period.

During the Free Access Period, users will have access to the following:

• Unlimited projects
• Up to 10GB of storage
• Up to 10 users in their workspace

This Free Access Period is separate and distinct from the Free Tier of Service that will be offered starting in May 2024. The Free Tier (“Starter Plan”) will have more limited functionality as described in Section 29.

At the end of the Free Access Period on June 14, 2024, users will need to select either:

• The Starter Plan, which will have limitations on number of projects, storage, files, and users as compared to what was offered during the Free Access Period. If a user is over the allotted limits for the Starter Plan, they may need to remove projects, files or users to fit within the Starter Plan limits.
• The Pro Plan, which allows for additional projects, storage and users for a fee.

If a user does not select a plan by June 14, 2024, their account will be automatically transitioned to the Starter Plan. To retain access to all projects, files and users from the Free Access Period, the user may need to upgrade to the Pro Plan.

ActiveDraft reserves the right to modify or discontinue the Free Access Period at any time and for any reason in its sole discretion. ActiveDraft makes no commitment to retaining any projects, files, or user data beyond the Free Access Period unless the user upgrades to a paid tier or transitions to the Starter Plan and the workspace limitations of the Starter Plan.

By participating in the Free Access Period, users agree to be bound by all other terms and conditions in the ActiveDraft Terms of Service.

8 Your Right to Access the Platform and Use the Services / Purchase and Cancelation Terms

Access License Subject to your, and as applicable, your Business’ compliance with the Terms and applicable law, you may access and use the Platform and such Services that we make available in accordance with the specific access license set forth in the order document. An access license expires at the end of the term set forth in the order document. The version(s) of the Services available at the renewal date may be different from the version(s) available when you, or your Business, first purchased the access license(s) from ActiveDraft. You agree that any decision to use or purchase Services is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features. 

ActiveDraft Intellectual Property We (and our licensors) remain the sole owner of all right, title, and interest in the Services and Platform. Except as stated in the Terms, we do not grant you any rights to patents, copyrights, trade secrets, trademarks, or any other rights in respect to the items in the Services and Platform. We reserve all rights not granted under the Terms.   

Shared User-Generated Content We may host user-generated content from other users that is shared with you. If you access our Services, you may come across user-generated content that you find offensive. Your sole remedy is to stop viewing the content. If available, you may also report offensive user-generated content to us at Customer Service. 

Tutorial Files “Tutorial Files” means ActiveDraft-provided audio, visual, video, or other content files for use in tutorials, demonstrations, and for other trial purposes, which may be identified as tutorial or demonstration files. Tutorial Files cannot be used for any other purpose than for which they were provided. You cannot claim any rights in the Tutorial Files. 

Content Files “Content Files” means ActiveDraft assets provided as part of the Services or Platform. Unless documentation or specific access licenses (including but not limited to Additional Terms) state otherwise, we grant you a personal, non-exclusive, non-sublicensable, and non-transferable license to use the Content Files to create your end use (i.e., the input, product, or Content authored by you) into which the Content Files, or derivations thereof, are embedded for your use (“End Use”). You may reproduce and distribute Content Files only in connection with your End Use. 

Free Offers and Trial Usage ActiveDraft may offer free usage and trial evaluation usage in its sole discretion. If access to any Services is provided to you for free or for trial purposes, such access is governed by these Terms. At any time prior to or during the free or trial period, ActiveDraft may, in its sole discretion, terminate the free or trial access without prior notice and without any liability to you, to the extent permitted under applicable law, for any reason, including to prevent abuse of the free or trial access. After the free or trial access period expires, you may only continue using the Services by purchasing an access license by enrolling in a paid subscription or as otherwise permitted by ActiveDraft. During the free or trial period, no express or implied warranties shall apply to the Services and Platform, all Services and Platform are provided “as-is” with all defects, and, unless otherwise expressly agreed by written additional terms, no technical or other support is included. 

Prerelease or Beta Version We may designate Services, or a feature of the Services, as a prerelease or beta version (“Beta Version”). A Beta Version is not a final product and may contain bugs that may cause system or other failure and data loss. You must promptly cease using the Beta Version and destroy all copies of the Beta Version if we request you to do so. In exchange for your use of a Beta Version, you agree that ActiveDraft may collect data regarding your use of the Beta Version to improve our products and personalize your experience, regardless of whether or not you have opted-out of data collection for non-Beta Versions. If you do not wish to have your usage tracked, you must discontinue your use of the Beta Version by uninstalling such Beta Version or utilizing a non-Beta Version of the Services. Any separate agreement we enter into with you governing the Beta Version will supersede these provisions.  

Usage Restrictions You agree not to use, nor permit any third party to use, the Services in a manner that violates any applicable law, regulation, or this Agreement. You agree you will not: 

• Reproduce, modify, copy, sell, trade, lease, rent or resell the Services. 
• Decompile, disassemble, or reverse engineer the Services. 
• Make the Services available on any application hosting service. 
• Provide access to the Services to Users in excess of the number of Authorized Usage Rights permitted by the Service to which you subscribe and as specified and agreed in your product ordering document. 

8.1 Pro Plan Terms / Annual Contract, prepaid / Renewals

While access to some Services may be free, our paid Subscription Service (each a “Pro Plan”) is associated with a fee. If you subscribe to a Pro Plan, we charge your payment method for fees on an annual basis for a maximum number of Users. The Fees are specified in your order document.  

Your Pro Plan begins as soon as your initial order document is processed, and your Plan fee paid. You will be charged the lump sum, an annual rate, stated in your order document, plus any applicable taxes. Your Pro Plan will automatically renew on your annual renewal date until you cancel. You authorize us or our third-party payment processor to store your payment method(s) and to automatically charge your payment method(s) every year until you cancel. 

If your primary payment method fails, you authorize us or our third-party payment processor to charge any other payment method in your account. If you have not provided us with a backup payment method(s) and you fail to provide payment, or if all payment methods in your account fail, we may suspend your access. You can edit your payment information anytime on your ActiveDraft Account page.  

8.2 Pro Plan Cancelation

You can cancel your Pro Plan at any time by emailing ActiveDraft support. [see ActiveDraft Contact Information]. If you cancel within 14 days of purchasing your Annual Contract, including any renewal, we will refund your purchase payment. If you cancel more than 14 days after purchase, your payment is non-refundable, and your subscribed Service will continue until the end of your contracted annual term. 

In rare instances ActiveDraft may, in our sole discretion, issue a refund if ActiveDraft cannot resolve a substantial issue where the Service does not conform to the product’s documentation. When we determine a refund is appropriate in such circumstance, the refund paid will be the Pro Plan purchase price minus the order processing and banking fees (generally, 5% of the purchase payment). In such instances, ActiveDraft requires that you, the Pro Plan subscriber, provide enough information for us to positively identify the original purchase transaction (e.g., order number, Business name, date of transaction, purchase code, number of authorized Users, etc.) 

9 Your Personal Information

You agree that ActiveDraft may use and maintain your personal information according to ActiveDraft’s Privacy Policy and any changes published by ActiveDraft.  

To the extent we allow you to input personal information (as the term is defined under applicable law) about other individuals other than yourself, you represent and warrant that you have complied with all applicable laws and received the proper authority or consent to allow us to collect and process such information to operate our business, in accordance with our Privacy Policy. You further agree that any sharing of Personal Information among ActiveDraft Group Companies is contemplated in connection with our provision of the Platform through which we deliver the Services. You agree such sharing does not constitute a “sale” of information as defined under any applicable consumer privacy or similar privacy statutes of the United States or of any of its individual states including the California Consumer Privacy Act (CCPA), as amended.  

10 Content and Data

You are solely responsible for anything you submit, receive, share, and store or any data you write or input (collectively, “input”) to or at the Platform including through any Service (collectively, your “Content”). Content includes the data, information, materials, text, graphics, and images that are uploaded, posted, generated, stored, input, shared, or otherwise made available by or to you by other users through the Platform. You have no obligation to provide any Content to the Platform.  

11 ActiveDraft’s License to Your Content

Your Content remains yours, which means that you retain any intellectual property rights that you have in your Content. By inputting your Content on the Platform, you hereby grant ActiveDraft a license to use your Content, as described in more detail below. 

This license covers your Content to the extent your Content is protected by intellectual property rights and is: 

• Worldwide, which means it’s valid anywhere in the world; 
• Non-exclusive, which means you can license your Content to others; and 
• Royalty-free, which means there are no fees for this license. 

This license allows ActiveDraft to: 

• Host, reproduce, distribute, communicate, sublicense, and use your Content — for example, to save your Content on our systems and make it accessible from anywhere you go; 
• Publish or publicly display your Content if you’ve made it visible to others; and 
• Modify and create derivative works based on your Content, such as reformatting or translating it. 

This license is for the limited purpose of operating, providing, and improving the Platform, which means allowing the Platform to work as designed and creating new features and functionalities. This license lasts for as long as your Content is protected by intellectual property rights. 

12 ActiveDraft’s Use of Deidentified and Aggregated Data Derived from Content

Regardless of whether or not you have otherwise under applicable law opted-out of data collection, ActiveDraft may collect, derive or generate deidentified and/or aggregated data regarding your usage of or the performance of the Platform, including data derived from your Content. ActiveDraft will own all such data and may use this data without restriction, including, but not limited to, operating, analyzing, improving, or marketing ActiveDraft’s products and services, including the Platform.  

13 Restricted Use of the Services

You shall not, and shall not permit any Users of the Services or any other party to, engage in, solicit, or promote any activity that is objectionable or may be illegal, violates the rights of others, is likely to cause notoriety, harm or damage to the reputation of ActiveDraft or could subject ActiveDraft to liability to third parties, including: (i) unauthorized access, monitoring, interference with, or use of the Platform or third party accounts, data, computers, systems or networks; (ii) interference with others’ use of the Platform or any system or network, including hacking, broadcast or denial of service attacks; (iii) unauthorized collection or use of personal or confidential information, including phishing, pharming, spidering, and harvesting; (iv) viewing or other use of any Content that, in ActiveDraft’s opinion, is prohibited under this Agreement; (v) any other activity that places ActiveDraft in the position of fostering, or having potential or actual liability for, illegal activity in any jurisdiction; or (vi) attempting to probe, scan, penetrate or test the vulnerability of an ActiveDraft system or network or to breach ActiveDraft’s security or authentication measures, whether by passive or intrusive techniques. ActiveDraft reserves the right to not authorize and may terminate your use of the Services based on reasonable suspicion of your activities, business, products, or services that are objectionable or promote, support or engage in any of the restricted uses described above. 

14 ActiveDraft may freely use feedback you provide

You agree that ActiveDraft may use your feedback, suggestions, or ideas in any way, including in future modifications of the Services, other products or services, advertising, or marketing materials. You grant ActiveDraft a perpetual, worldwide, fully transferable, sublicensable, non-revocable, fully paid-up, royalty free license to use the feedback you provide to ActiveDraft in any way. 

15 ActiveDraft may monitor Content

ActiveDraft may, but has no obligation to, monitor access to or use of the Services or Content or to review or edit any Content for the purpose of operating the Services, to ensure compliance with this Agreement, and to comply with applicable law or other legal requirements. We may disclose any information necessary to satisfy our legal obligations, protect ActiveDraft or its customers, or operate the Services properly. ActiveDraft, in its sole discretion, may refuse to post, remove, or refuse to remove, or disable any Content, in whole or in part, that is alleged to be, or that we consider to be unacceptable, undesirable, inappropriate, or in violation of this Agreement. 

16 Communications about Other ActiveDraft Services

You may be offered other services, products, or promotions by ActiveDraft (“ActiveDraft Services”). You agree that ActiveDraft may send these communications to you via email, text, or at the Platform. 

17 Disclaimers

The only warranties we make about the Platform (including any Service) are (1) stated in this Agreement, or (2) as provided under applicable laws. The Platform is otherwise provided “as-is,” and we do not make any other warranties about the Platform. Unless required by law, we do not provide implied warranties, such as the implied warranties of merchantability, fitness for a particular purpose, or non-infringement. We do not warrant that the Platform is error-free, secure, or free from any viruses or other harmful components. We also do not provide any warranties with respect to data loss or to the accuracy, reliability, or availability of the Platform, nor of any content (including any Content) or information made available in, at, or through Platform. If the exclusions for implied warranties do not apply to you, any implied warranties are limited to sixty (60) days from the date of purchase or delivery of the Platform, whichever is sooner. 

18 Limitation of Liability

Other than the rights and responsibilities described in this Agreement and as allowed by applicable law, ActiveDraft won’t be responsible for any losses. 

• The total aggregate liability of ActiveDraft Group Companies and our third party providers, licensors, distributors, or suppliers (“ActiveDraft Parties”) arising out of or relating to this Agreement is limited to the greater of: (1) the fees that you paid to use the relevant Service(s) in the 12 months before the breach or (2) $100. 
• To the maximum extent permitted by law, the ActiveDraft Parties won’t be responsible for the following: 
• Loss of data, profits, revenues, business opportunities, goodwill or anticipated savings; 
• Indirect, incidental, or consequential loss; or 
• Punitive damages. 

The above limitations apply even if the ActiveDraft Parties have been advised of the possibility of such damages. This Agreement sets forth your exclusive remedy with respect to the Platform and its use. 

19 Indemnity Obligations

You will indemnify and hold harmless the ActiveDraft Parties for any losses, damages, judgments, fines, costs, and expenses (including legal fees) in connection with any claims arising out of or relating to your unlawful or unauthorized use of the Platform or violation of this Agreement. ActiveDraft reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any claims. You agree to reasonably cooperate as requested by ActiveDraft in the defense of any claims. 

20 Termination

ActiveDraft may, in its sole discretion and without notice, restrict, deny, terminate this Agreement or suspend the Services effective immediately, in whole or in part, if we determine that your use of the Services violates the Agreement, is improper or substantially exceeds or differs from normal use by other users, exceeds agreed raises suspicion of fraud, misuse, security concern, illegal activity or unauthorized access issues, to protect the integrity or availability of the Services or systems and comply with applicable ActiveDraft policy, if you no longer agree to receive electronic communications, or if your use of the Services conflicts with ActiveDraft’s interests or those of another user of the Services. Upon ActiveDraft notice that your use of the Services has been terminated you must immediately stop using the Services and any outstanding payments will become due. Any termination of this Agreement shall not affect ActiveDraft’s rights to any payments due to it. ActiveDraft may terminate a free account at any time. The provisions of this Agreement which, by their terms, require performance after the termination or expiration of this Agreement, or have application to events that may occur after the termination or expiration of this Agreement, will survive the termination or expiration of this Agreement.  

21 Export and Trade Restrictions

You acknowledge that the Services, and the underlying software may include U.S. technical data subject to restrictions under export control laws and regulations administered by the United States government. You agree that you and your users who use the Services are not prohibited from receiving the Services under the laws of the United States. For example, you are not on the U.S. Treasury Department’s list of Specially Designated Nationals or are subject to any other similar prohibition. You will not export or re-export any part of the Services, in violation of these laws and regulations, directly or indirectly. 

22 Governing Law and Jurisdiction

Nevada law and the U.S. Federal Arbitration Act will govern all disputes arising out of or relating to the Platform, this Agreement, and any Additional Terms, regardless of conflict of laws rules. 

23 Disputes

You and ActiveDraft agree that, except as provided below, any dispute, claim or controversy arising out of or relating in any way to the Platform or this Agreement (a “Claim”) will be determined by binding arbitration or small claims court, instead of in courts of general jurisdiction. 

Either you or ActiveDraft can seek to have a Claim resolved in small claims court if all the requirements of the small claims court are satisfied. Either you or ActiveDraft may seek to have a Claim resolved in small claims court in your county of residence or the small claims court in closest proximity to your residence, and you may also bring a claim in small claims court in the Second Judicial District Court of Nevada, County of Washoe. 

Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision, and that you and ActiveDraft are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement and/or the termination of your account. 

If you elect to seek arbitration, you must first send to ActiveDraft a written notice of your Claim (“Notice of Claim”). The Notice of Claim to ActiveDraft should be sent in care of our Nevada registered agent Northwest Registered Agent, LLC with copy by email to [email protected]. The Notice of Claim should include both the mailing address and email address you would like ActiveDraft to use to contact you. If ActiveDraft elects to seek arbitration, it will send, by certified mail, a written Notice of Claim to your address on file. A Notice of Claim, whether sent by you or by ActiveDraft, must (a) describe the nature and basis of the Claim or dispute; and (b) set forth the specific amount of damages or other relief sought. 

You and ActiveDraft agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost and mutually beneficial outcome. You and ActiveDraft therefore agree that, after a Notice of Claim is sent but before either you or ActiveDraft commence arbitration or file a Claim in small claims court against the other, we will personally meet, via telephone or videoconference, in a good-faith effort to confer with each other and try to resolve informally any Claim covered by this Agreement. If you are represented by counsel, your counsel may participate in the conference as well, but you agree to fully participate in the conference. Likewise, if ActiveDraft is represented by counsel, its counsel may participate in the conference as well, but ActiveDraft agrees to have a company representative fully participate in the conference. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph. 

If we do not reach an agreement to resolve the Claim within thirty (30) days after the Notice of Claim is received, you or ActiveDraft may commence an arbitration proceeding by filing a Demand for Arbitration or, alternatively, by filing a Claim in small claims court. You agree that you may not commence any arbitration or file a Claim in small claims court unless you and ActiveDraft are unable to resolve the Claim within thirty (30) days after we receive your completed Notice of Claim and you have made a good faith effort to resolve your claim directly with ActiveDraft during that time. If a Claim qualifies for small claims court, but a party commences an arbitration proceeding, you and ActiveDraft agree that either party may elect instead to have the Claim resolved in small claims court, and upon written notice of a party’s election, the American Arbitration Association (“AAA”) will administratively close the arbitration proceeding. Any dispute about whether a Claim qualifies for small claims court shall be resolved by that court, not by an arbitrator. In the event of any such dispute, the arbitration proceeding shall remain closed unless and until a decision by the small claims court that the Claim should proceed in arbitration. You may download or copy a form of notice and a form to initiate arbitration at www.adr.org or by calling 1-800-778-7879. The arbitration will be conducted by the AAA before a single AAA arbitrator under the AAA’s rules, which are available at www.adr.org or by calling 1-800-778-7879, except as modified by this Agreement. Unless ActiveDraft and you agree otherwise, any arbitration hearings will take place by video conference. 

The arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the state of Nevada or the state of your residence and will be selected by the parties from the AAA’s National Roster of Arbitrators. The arbitrator will be selected using the following procedure: (a) the AAA will send the parties a list of five candidates meeting this criteria; (b) if the parties cannot agree on an arbitrator from the list, each party shall return its list to the AAA within 10 days, striking up to two candidates, and ranking the remaining candidates in order of preference; (c) the AAA shall appoint as arbitrator the candidate with the highest aggregate ranking; and (d) if for any reason the appointment cannot be made according to this procedure, the AAA may exercise its discretion in appointing the arbitrator. The arbitrator is bound by this Agreement. Except as otherwise provided below, all issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration provision. 

The parties agree that an administrative conference with the AAA shall be conducted in each arbitration proceeding, and you and an ActiveDraft company representative shall appear at the administrative conference via telephone or video conference. If you fail to appear at the administrative conference, regardless of whether your counsel attends, the AAA will administratively close the arbitration proceeding without prejudice, unless you show good cause as to why you were not able to attend the conference. 

The arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The award shall be binding only among the parties and shall have no preclusive effect in any other arbitration or other proceeding involving a different party. ActiveDraft will not seek to recover its attorneys’ fees and costs in arbitration from you unless the arbitrator finds that either the substance of your Claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). Judgment on any award may be entered in any court having jurisdiction. This agreement to arbitrate shall not preclude any party to the arbitration from at any time seeking injunctions or other forms of equitable relief in aid of arbitration from a court of appropriate jurisdiction including whether a Demand for Arbitration is filed in violation of this Agreement. 

Unless you or ActiveDraft seek to have a Claim resolved in small claims court, the arbitrator shall determine all issues of liability on the merits of any Claim asserted by you or ActiveDraft and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or ActiveDraft prevail on a Claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual Claims in arbitration. Before a court of competent jurisdiction issues any public injunctive relief, it shall review the factual findings of the arbitration award on which any injunction would issue with no deference to the arbitrator. 

Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. You are required to pay AAA’s initial filing fee, but ActiveDraft will reimburse you for this filing fee at the conclusion of the arbitration to the extent it exceeds the fee for filing a complaint in a federal or state court in your county of residence or in Washoe County, Nevada. If the arbitrator finds that either the substance of your Claim or the relief sought in your Demand for Arbitration was frivolous or was 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 fees will be governed by the AAA Rules and ActiveDraft will not reimburse your initial filing fee. The parties agree that the AAA has discretion to modify the amount or timing of any administrative or arbitration fees due under the AAA Rules where it deems appropriate, provided that such modification does not increase the AAA fees to you or ActiveDraft, and you and ActiveDraft waive any objection to such fee modification. 

You and ActiveDraft agree that each may bring Claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Further, if you have elected arbitration, unless both you and ActiveDraft agree otherwise, the arbitrator may not consolidate any other person’s Claims with your Claims and may not otherwise preside over any form of a representative or class proceeding. If ActiveDraft believes that any Claim you have filed in arbitration or in court is inconsistent with the limitations in this paragraph, then you agree that ActiveDraft may seek an order from a court determining whether your Claim is within the scope of the Class Action Waiver. If this Class Action Waiver is found to be unenforceable, then the entirety of this Disputes Section shall be null and void. 

24 Waiver

ActiveDraft’s failure to act or enforce any of its rights does not constitute a waiver of any of our rights. Any waiver by ActiveDraft of any of the provisions in the Agreement must be made in writing and signed by a duly authorized officer of ActiveDraft. 

25 Force Majeure

Neither party will be liable to the other for any delay or failure to perform any obligation (other than your payment obligations to ActiveDraft) under the Terms if the delay or failure is due to unforeseen events, which occur after the effectiveness of the Terms and which are beyond the reasonable control of the parties, such as blockade, war, terrorism, riots, natural disasters, refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost. 

26 General

This Agreement, including the Additional Terms below, is the entire agreement between you and ActiveDraft regarding its subject matter and replaces all prior understandings, communications, and agreements, oral or written, regarding its subject matter. If any court of law, having the jurisdiction, rules that any part of this Agreement is invalid, that section will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable. You may not assign or transfer this Agreement to anyone without written approval of ActiveDraft. However, ActiveDraft may assign or transfer this Agreement without your consent to (a) an affiliate, (b) a company through a sale of assets by ActiveDraft or (c) a successor by merger. Any assignment in violation of this Section shall be void. If you want to request a transfer of this Agreement, contact ActiveDraft via an email to: [email protected]. 

27 DMCA Notices

We respect the Intellectual Property Rights of others, and we expect our users to do the same. We will respond to clear notices of copyright infringement consistent with the Digital Millennium Copyright Act (DMCA).  

If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify ActiveDraft’s copyright agent. For your notice to be valid under the DMCA, you must provide the following information in writing: 

• An electronic or physical signature of a person authorized to act on behalf of the copyright owner 
• Identification of the copyrighted work that you claim has been infringed 
• Identification of the material that is claimed to be infringing and where it is located on the Service 
• Information reasonably sufficient to permit Heroku to contact you, such as your address, telephone number, and, e-mail address 
• A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law 
• A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner 

The above information must be submitted to our DMCA Agent: 

Attn: DMCA Notice 

ActiveDraft: ActiveDraft LLC 

Address: 5470 Kietzke Lane, Suite 300 # 337, Reno, NV 89511 

Email: [email protected] 

UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES. 

Please note that this procedure is exclusively for notifying ActiveDraft that your copyrighted material has been infringed. The preceding requirements are intended to comply with ActiveDraft’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws. 

28 Contact Information

If you have any questions about the Platform, any Service, or this Agreement, or you wish to cancel a Pro Plan, please contact ActiveDraft support at [email protected]. 

SECTION B TERMS 

Last Updated: October 27, 2023 (Section B) 

29 ADDITIONAL TERMS AND CONDITIONS FOR THE SERVICES

Your use of the Services provided by ActiveDraft (as defined in the Section A Terms) and, as described below, are subject to the Section A Terms above and these Additional Terms and Conditions (“Section B Terms”). 

30 Services Covered

The Section B Terms include provisions applicable to your use of ActiveDraft Services generally, as well as certain additional terms and provisions applicable to your use of specific Services.

This Agreement governs your use of each of the following ActiveDraft Services, as applicable:

Pro Plan: A Pro Plan is a fee-based online ActiveDraft hosted subscription service for AEC businesses (architecture, engineering, and construction). A Pro Plan account allows up to a specified number of registered Users to receive an Authorized Usage Right to access the Account and create, revise, and collaborate on digital design and construction drawings, and to share such documents externally with others who also maintain an ActiveDraft Account – under either another ActiveDraft Pro Plan or the Starter Plan. Your Pro Plan’s annual Fee, maximum number of Authorized Usage Rights (one for each Business User), and specific Plan storage quota (if any) is specified by your Order document.

Starter Plan: Starting in May 2024, ActiveDraft will offer a Starter Plan that allows individuals or AEC businesses to use limited functionality of the ActiveDraft platform at no cost. The Starter Plan includes the following:

• 1 project
• Up to 25 files
• 500MB of storage
• 3 full seats (registered Users) in the workspace
• Ability to share file access with up to 25 viewer/commenter roles

The Starter Plan is distinct from the ActiveDraft Free Access Period described elsewhere in these Terms of Service. The Free Access Period offers full platform functionality for a limited time, while the Starter Plan has ongoing limited functionality.

Users on the Starter Plan can upgrade at any time to a paid Pro Plan to access additional features, storage, and Users.

ActiveDraft reserves the right to modify or discontinue the Starter Plan at any time and for any reason in its sole discretion. ActiveDraft makes no commitments about the specific features, storage limits, or number of Users that will always be included in the Starter Plan.

31 Administrators / Workspaces / Additional Users

When you register an Account to access and use ActiveDraft under a Pro Plan, Starter Plan, or Trial Version, you may also establish and name a specific workspace (each a “Workspace”) associated with your Account. You, or a party that you authorize under your Account, will administer that Workspace as “Administrator.” 

Administrators may authorize additional registered Users (“Additional Users”) to access the Services within your Workspace to create, revise, and collaborate on digital design and construction drawings, and share such documents outside of the Workspace with others who maintain a registered ActiveDraft Account. The number of Additional Users may not exceed the number of Authorized Usage Rights you purchased under your Pro Plan (one for each Additional User) or the number of Authorized Usage Rights you are permitted under your Starter Plan or Trial Version. 

All Additional Users are required to register an Account with us and accept this Agreement before using the Services and accessing your Workspace. Only Administrators may designate another individual as a replacement Administrator. You and you are responsible for your Additional Users’ access to the Services within your Workspace. 

When an Administrator closes his or her Account or terminates access to the Service, unless he or she first reassigns the Workspace to another registered User’s Account as replacement Administrator, Additional Users will no longer be able to access the Workspace or its Content (defined in the Section A Terms). Accordingly, if you are an Administrator, you agree to provide sufficient prior notice to your Additional Users of your intent to terminate access to a Workspace or to terminate your Account and its associated Service.  

Any violation of the Agreement by any Additional User may result in the termination of an Administrator’s or other Additional User’s access to the Services. You warrant that you have obtained all necessary authorizations from each Additional User to: (i) act as their agent with respect to their accessing the Service within your Workspace, and (ii) allow ActiveDraft to provide the Services to them with respect to your Workspace subject to the terms and conditions of this Agreement. 

32 Service Use, Storage, and Access

When you register to a Service, your order documentation may reflect the amount of storage space you have on the Service, including any associated Workspace. Should you exceed the storage quota allotted, or in the absence of any explicit allotment, your storage becomes, in ActiveDraft’s sole discretion, unreasonably excessive or abusive, ActiveDraft may limit or meter further storage usage and instruct you to free up space by removing files and projects under your Account and/or Workspace. 

ActiveDraft shall have the right, in its sole discretion and with reasonable notice posted on the ActiveDraft website or sent to you or your current Workspace Administrator’s registered email address, to revise, update, or otherwise modify the Services and establish or changes to any limits concerning use of the Service, temporarily or permanently, including but not limited to (i) the amount of storage space you have on the Services at any time, or (ii) your continued access to the Service. ActiveDraft further reserves the right to make any such changes effective immediately to maintain the security of the Platform or User Profile information, or to comply with any laws or regulations, and provide you with electronic or written notice within thirty (30) days after such change, which notice may be through posting within the Service. You may reject changes by discontinuing use of our Services to which such changes relate. Your continued use of the Services will constitute your acceptance of and agreement to such changes. ActiveDraft may, from time to time, perform maintenance upon the Services resulting in interrupted service, delays, or errors in the Services. ActiveDraft will attempt to provide prior notice of scheduled maintenance but cannot guarantee that such notice will be provided. 

33 Beta Features

From time to time, ActiveDraft may, in its sole discretion, include new and/or updated beta features (“Beta Features”) in the Services for your use. This is true with respect to all features under any Beta Version and will apply with respect to certain features under what we expect will be our future paid versions of the Services. You understand and agree that your use of the Beta Features is voluntary and ActiveDraft is not obligated to provide you with any Beta Features. The Beta Features are provided on an “as is” basis and may contain errors or inaccuracies that could cause failures, corruption, or loss of data and/or information from any connected device. You acknowledge and agree that all use of the Beta Features is at your sole risk. 

34 Personal Information

With respect to your Account, you represent and warrant to us that: 

• You, including acting through your Administrator, will provide appropriate notice and have obtained (or will obtain) all consents and rights necessary for us to process the Personal Information of each Business User and all Additional Users, in accordance with this Agreement and our Privacy Policy. 
• If you are providing Personal Information to us that is not personal to you, you agree that you have an appropriate legal basis, as required by applicable law, for us to: (a) use, and/or disclose the personal information in accordance with our Privacy Policy. 

If there is any discrepancy between this Agreement and our Privacy Policy with respect to the collection, use, and/or disclosure of the personal information, the Privacy Policy will control. You further acknowledge and agree that ActiveDraft may provide data in your Account to any Additional Users to which that data is applicable or personal to. 

35 Shared Content

As a User you may have the opportunity to share your data or Content (“Account Content”) with other Users or other ActiveDraft customers. When sharing any Account Content, you agree not to share any confidential information. If you have the option of accessing another User’s Account Content, you understand and agree that the Account Content is being provided by the User, and not ActiveDraft, for information and guidance purposes only, and ActiveDraft and such User are not responsible in any way for your use the Account Content. 

36 Telephone numbers

You may provide us with your telephone number as part of your customer record, User Profile registration, or via other methods. You understand and agree that ActiveDraft may use such telephone number for “multi-factor authentication” (“MFA”), to confirm your identity and help protect the security of your account. Part of the MFA identity verification process may involve ActiveDraft sending text messages containing security codes to your telephone number. You agree to receive these texts from ActiveDraft containing security codes as part of the MFA process. In addition, you agree that ActiveDraft may send automated text messages and pre-recorded voice messages to the telephone number you provide for other limited purposes, including providing you with important critical notices regarding your use of the Services, or fulfilling a request made by you through the Services. Additionally, ActiveDraft may use your telephone number to contact you about special offers or other ActiveDraft products or services unless you opt out of such marketing. With MFA, you also agree and consent to us obtaining and using information from your mobile phone service provider, solely for the purposes of verifying your identity and to compare information you have provided to ActiveDraft (such information may include from your mobile phone service provider account record: your name, address, email, customer type, customer role, billing type, mobile device identifiers (IMSI and IMEI) and other mobile phone subscriber details).