Mark, feeling stressed out from work, decided to search for a meditation app for his phone that would help him relax during the day. One app, CalmDown, appeared to be promising. It didn't have any reviews yet and looked to be a brand$-$new app, so he decided to try it out. He downloaded the app to his phone and opened it up$.$ The first screen required he enter in his name and email address. At the very bottom of the screen it had some small writing, but Mark didn't notice it and hit the continue button.

A screenshot shows the first screen of a meditation app, CalmDown. The screenshot shows the official logo of the CalmDown app, at the top center, followed by the app name below. Two rectangular textboxes below read, name and Email Address. A button below reads, CONTINUE. A text at the bottom center reads, By continuing to use this app, user agrees to abide by the terms of service provided at w w w dot C D $8765$ l k a p p dot com.

Had Mark clicked on the link at the bottom of the screen, he would have seen the following:

A screenshot shows the Terms of Use of a meditation app, CalmDown. The heading, Terms of Use, is at the top left. Text below reads, $1,$ Any controversy or claim arising out of or relating to the purchase or use of the CalmDown app, shall be settled by arbitration. The number of arbitrators shall be one. The place of arbitration shall be Fairbanks, Alaska. The arbitrator's award shall be final and binding. $2,$ User may not distribute any content on this app for any purpose other than individual use. $3,$ User agrees to allow CalmDown to "harvest" information for sale to third$-$parties. $4,$ User agrees to use the app at their own risk. CalmDown shall not be liable for damages arising out of use of the app. $5,$ User may terminate their account by sending an email to terminate at C D $8765$ l k a p p dot com.

The second screen stated "Three$-$day trial version $-$ Free! $$59\mathrm{.}99$ annual fee thereafter." Mark was annoyed that the app would cost him almost $$60$ but figured he would set a reminder on his phone to cancel the app before the trial period expired so he wouldn't get charged. Plus, he wanted to see the app in action. If it was actually worth the price, he wouldn't mind paying the annual fee. He clicked "Continue" and put in his bank card information on the next screen. The following screen asked Mark a series of questions about his stress level and what he felt caused stress in his life. He clicked "high" and "work" as the level and cause. He then completed the first CalmDown meditation in the app but was not impressed with its functionality.

Deciding he would cancel his subscription immediately, he went into the profile settings to try to find the cancel option but couldn't. He searched every possible place on the app but didn't see a way to cancel the subscription. Mark decided to try to find the app's developer through their website, but a quick search didn't turn up anything. Already stressed and becoming more frustrated, Mark decided to contact the app store. They informed him that he should be able to go into his app store account and cancel the subscription there. However, when Mark went there, he didn't see the app as an option or as a subscription. Thinking that maybe his subscription didn't process, he just deleted the app from his phone.

Mark didn't give the app or the subscription any more thought, becoming increasingly more distracted by the amount of stress at work. Four months later, Mark was looking at his bank account online and noticed it was lower than it should have been. He began reviewing the charges and noticed multiple charges for $$59\mathrm{.}99$ to a merchant named "CDgotU." He immediately remembered the app and contacted his bank to dispute the charges.

His bank replied that due to the charges being debit withdrawals he needed to dispute them within $2$ days of being made. Moreover, if he had been diligent about watching his account, they could have put a block on the account and the remaining fraudulent charges would have been prevented. The bank representative also told him that he should try to get a refund from the company that charged him. After making his case with the bank representative for several hours about how he tried to cancel his subscription, he was unsuccessful. The bank's representative was able to provide Mark a phone number attached to the Merchant account, but when Mark called the number it was disconnected. The bank could not provide him with any additional information such as a company address or website.

After more internet searching, Mark saw a number of other complaints online about the app and noticed it had been removed from the app store and was no longer available for download. Mark decided to bring an action against the company for fraud, breach of contract, conversion, and several other claims in his home state of Vermont.

Question at position $1$

$1$

$1$ point

Question at position $1$

The maker of CalmDown argues that it sho