Terms of Service (ToS)
Scope of this agreement
This TERMS OF SERVICE and any other documents referred to in it (hereinafter collectively referred to as this “ToS”) governs all Products (as defined herein) and Services (as defined herein) offered by The Wound Company, Inc., a Delaware corporation and its affiliates (collectively, “Company”, “we”, “us” or “our”) that are used by any customers, subscribers, or other users (“you” or “Customers”) who subscribe or otherwise use any Company Products (as defined herein.
IN ADDITION TO ANY OTHER PROVISIONS SET FORTH HEREIN OR IN COMPANY’S PRIVACY POLICY, YOU HEREBY ACKNOWLEDGE AND CONSENT THAT WE ARE NOT A HEALTHCARE PROVIDER AND OUR SERVICES (AS DEFINED HEREIN) OR PRODUCTS (AS DEFINED HEREIN) ARE NOT INTENDED TO PROVIDE MEDICAL ADVICE. IF YOU HAVE QUESTIONS RELATED TO ANY INFORMATION PROVIDED IN OUR PRODUCT (AS DEFINED HEREIN), WE RECOMMEND YOU CONSULT YOUR HEALTHCARE PROVIDER.
BY YOUR ACT OF CONTINUING TO USE ANY SERVICES (AS DEFINED HEREIN) OR PRODUCTS (AS DEFINED HEREIN), INCLUDING WITHOUT LIMITATION BY YOUR ACT OF REGISTERING TO USE ANY OF THE FEATURES OR FUNCTIONALITIES OF ANY OF THE FOREGOING, YOU HEREBY AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AS IT IS PRESENTED TO YOU AS OF THE DATE OF YOUR FIRST USE OF ANY OF THE SERVICES (AS DEFINED HEREIN) OR PRODUCTS (AS DEFINED HEREIN).
NO CHANGES (ADDITIONS OR DELETIONS) BY YOU TO THIS AGREEMENT WILL BE ACCEPTED BY COMPANY. THUS, IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS Tos THEN YOU SHOULD NOT USE OF THE TESTING SERVICES.
THIS IS A LEGALLY BINDING CONTRACT. YOU SHOULD DOWNLOAD AND PRINT THIS AGREEMENT FOR YOUR RECORDS
This ToS governs your subscription, installation, and use of our Company technology products including [names of Applications/products] ("Product") directly from Company or indirectly through an authorized referral affiliate, reseller, or white label partner (an "Authorized Partner").
Please read the ToS carefully before using the Product. It provides a subscription to use the Product and contains warranty information and liability disclaimers.
If a free trial is available for the Product, the ToS will also govern that trial. By installing and/or using the Product, you are confirming your acceptance of the Product and agreeing to become bound by the terms of the ToS. At the end of the free trial, both parties will agree to purchase a subscription to a Product.
If you are entering into the ToS on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions. If you do not have such authority or if you do not agree with the terms and conditions of the ToS, do not install or use the Product, and you must not accept the ToS.
The ToS shall apply only to the Product supplied by Company herewith regardless of whether other software is referred to or described herein. The terms also apply to any Company updates, supplements, derivative works, and support services for the Product.
SUBSCRIPTION RIGHTS
Company hereby grants you a personal, non-transferable, non-exclusive subscription to use the Product on your devices in accordance with the ToS.
Your users under your control are permitted to access the Product (for example a PC, laptop, mobile or tablet). You are responsible for ensuring your device meets the minimum requirements of the Product.
You are not permitted to:
Edit, alter, modify, adapt, translate, prepare derivative works of, or otherwise change the whole or any part of the Product nor permit the whole or any part of the Product to be combined with or become incorporated in any other software, nor decompile, disassemble or reverse engineer the Product or attempt to do any such things.
Reproduce, copy, distribute, resell, sublicense, assign or otherwise use the Product for any commercial purpose.
Allow any third party to use the Product on behalf of or for the benefit of any third party without written approval from Company.
Use the Product in any way which breaches any applicable local, national or international law.
Use the Product for any purpose that Company considers is a breach of the ToS.
SUBSCRIPTION & SERVICE FEES
In consideration for the subscription granted by Company under the ToS, Client shall pay Company a subscription fee and fees for any additional services (“Subscription & Service Fees”). Subscription & Service Fees are subject to change upon the first day of each Renewal Term. Subscription & Service Fees are non-refundable.
NO MEDICAL ADVICE. ALL INFORMATION AND CONTENT IS PROVIDED FOR GENERAL INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY AND IS NOT MEANT TO BE, AND IS NOT A SUBSTITUTE FOR, PROFESSIONAL ADVICE PROVIDED BY A PHYSICIAN OR OTHER QUALIFIED AND LICENSED MEDICAL OR CLINICAL PROFESSIONAL PURSUANT TO PERSONAL IN-PERSON EXAMINATION AND PROFESSIONAL CONSULTATION.
COMPANY DOES NOT ENDORSE NOR IS IT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, CURRENTNESS, COMPLETENESS OR TIMELINESS OF ANY OPINION, ADVICE OR STATEMENT IN COMPANY MATERIALS, INCLUDING IN THE PRODUCT.
While we hope you find it helpful, you should not use the information contained in Company Products for selecting a specific course or method of treatment. Healthcare professionals using this Product, website and services should also remember that this information is not meant to serve as a substitute for your medical or clinical judgment as a healthcare professional. HEALTHCARE CONSUMERS WHO USE THE INFORMATION FROM THE COMPANY’S SITE OR ANY OTHER PRODUCT DO SO AT THEIR OWN AND SOLE RISK. Company provides only the services and Products explicitly defined in this Agreement. If we communicate your results to you in writing (by mail or electronically), know that, unless otherwise required by law:
Any test results from labs ordered by your physician have already been, or are simultaneously being communicated to the ordering/referring provider authorized by law to order and use the information.
THE COMMUNICATION SHOULD NOT BE VIEWED AS MEDICAL ADVICE AND IS NOT MEANT TO REPLACE DIRECT COMMUNICATION WITH A PHYSICIAN OR OTHER HEALTH SERVICE PURVEYOR; and
All inquiries regarding the meaning or interpretation of the any test results should be made to the ordering/referring healthcare provider or your personal healthcare provider.
MUST BE 18 YEARS OR OLDER TO USE OUR PRODUCTS. This Website is offered and available to users who are 18 years of age or older and reside in the United States or any of its territories or possessions. By using this Product, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Product.
TAXES
Client shall, in addition to the other amounts payable under the ToS, pay all applicable customs, duties, sales, use, value added or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by the ToS, excluding only taxes based on Company’s net income. Client agrees to indemnify, defend, and hold Company, its officers, directors, consultants, employees, successors and assigns harmless from all claims and liability arising from Client's failure to report or pay any such taxes, duties or assessments.
PAYMENT TERMS
All amounts payable to Company under the ToS will be paid according to the pricing and payment terms, as set forth on the Site. Company may add new services for additional fees and charges, or amend fees and charges for existing services, at any time in its sole discretion. You will be notified of any change to Company pricing or payment terms. Overdue payments will be subject to interest at the rate of 1.5% per month, or the maximum allowable under applicable law, whichever is less.
TERMINATION
The ToS is effective from the date you first use the Product and shall continue until terminated. You may terminate it at any time upon 30-days written notice to Company prior to your renewal date.
Should Company terminate its agreement with the supplier of the Product, the ToS will automatically terminate. The ToS will also terminate immediately if you fail to comply with any term of the ToS.
Upon either such termination, the subscriptions granted by the ToS will immediately terminate and you agree to stop all access to and use of the Product, immediately destroy or permanently delete all copies, full or partial of the Product, and provide written notice, signed by your authorized representative, that you have complied with the foregoing obligations. The provisions that by their nature continue and survive will survive any termination of the ToS including timely payment of your Subscription & Service Fees.
INTELLECTUAL PROPERTY AND OWNERSHIP
Company shall at all times retain ownership of the Product and all subsequent updates and derivative works of the Product. The Product (and the copyright, and other intellectual property rights of whatever nature in the Product, including any modifications and Custom IP made thereto) are and shall remain the property of Company.
Custom IP shall mean IP made, conceived, or developed by Company, including derivative works, on behalf of Client, outlined in an SOW. Custom IP shall include the copyright in the collective work. Custom IP does not include Client IP or Third Party IP.
Company reserves the right to grant subscriptions to use the Product to other parties.
As between Client and Company, the Client shall retain all right, title and interest in and to the Client Data and all Intellectual Property Rights therein. Nothing in the ToS will confer on Company any right of ownership or interest in the Client Data or the Intellectual Property rights therein.
CUSTOM TRAINING CONTENT
If Company creates Custom Training Content for you to use along with a Company Product, the terms of the ToS also apply to the Custom Content except that:
You shall be the owner of Custom Intellectual Property ("Custom IP") in the Custom Content, subject to a permanent prohibition on its sale; and
Pricing and delivery of the Custom Content and terms that vary from the ToS shall be governed by a Statement of Work ("SOW") agreed to by you and Company.
PRIVACY, SECURITY AND DATA BACKUP
“Process” means to perform any operation or set of operations on any data, information, material, work, expression or other content, including to (i) collect, receive, input, upload, download, record, reproduce, store, organize, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other improvements or derivative works, (ii) process, retrieve, output, consult, use, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or (iii) block, erase or destroy.
“User Data” means any and all information, data, materials, works, expressions or other content, including any that are (i) uploaded, submitted, posted, transferred, transmitted or otherwise provided or made available by or on behalf of Client or any of its customers or their respective users through the services subscribed hereunder, or (ii) collected, downloaded or otherwise received by Company or the services subscribed hereunder for Client or any of its customers or their respective users pursuant to the Company SOW or at the written request or instruction of Client or any of its customers or their respective users. All output, copies, reproductions, improvements, modifications, adaptations, translations and other derivative works of, based on, derived from or otherwise using any User Data are themselves also User Data.
Permitted Use. Company shall not cause or permit any User Data to be Processed in any manner or for any purpose other than the performance of the services subscribed hereunder in compliance with the restrictions set forth in the ToS and all applicable laws. Company represents, warrants and covenants that it shall not Process or otherwise undertake or refrain from any act with respect to any User Data in any manner, including any actual or attempted Processing thereof, except for the sole purpose of performing the services subscribed hereunder and in compliance with: (i) the express terms and conditions of the SOW or as Client may hereafter expressly direct in advance in writing; (ii) Client's then current privacy, security and backup policies; and (iii) all applicable laws.
Privacy and Security. Company shall maintain and enforce a privacy and information security program, including safety and physical and technical security policies and procedures, with respect to its User Data and Client's Confidential Information.
Compliance with Laws; Privacy. You also are responsible for complying with all applicable governmental regulations of any non-U.S. countries. You shall not transmit any personally identifiable information to Company with the exception of information required to setup user accounts. Additionally, you should not transmit to Company any user Social security numbers, credit card information, web data such as IP addresses cookies, RFID tags, biometric data, racial or ethnic data, political opinion or sexual orientation.
Data Backup. Company shall conduct backups of User Data and store such backup User Data in a commercially reasonable location and manner consistent with industry practices and standards.
For more information on Company’s privacy standards, please read our full Privacy Policy.
CONFIDENTIALITY
Nondisclosure. Each Party (each a "Receiving Party") agrees that it shall use and reproduce the Confidential Information of the other Party (the "Disclosing Party") only for purposes of exercising its rights and performing its obligations under the ToS and only to the extent necessary for such purposes; shall restrict disclosure of such Confidential Information to the Receiving Party's employees, consultants, or advisors who have a need to know; and shall not disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party. Confidential Information includes, but is not limited to, all information, whether written or oral, and in any form, including without limitation, information relating to the ToS, research, development, products, methods of manufacture, trade secrets, business plans, customers, vendors, finances, personnel data, and third-party proprietary information. The foregoing obligations shall be satisfied by the Receiving Party through the exercise of at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. All third parties to whom the Receiving Party discloses Confidential Information must be bound in writing by obligations of confidentiality and non-use at least as protective of such information as the ToS. Notwithstanding the foregoing, it shall not be a breach of the ToS for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure.
Exceptions. Notwithstanding anything to the contrary herein, neither Party shall be liable for using or disclosing information that such Party can prove: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Receiving Party; (ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; (v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of the ToS by the Receiving Party and otherwise not in violation of the Disclosing Party's rights; or (vi) is disclosed generally to third parties by the Disclosing Party without restrictions similar to those contained in the ToS.
Remedies. The Receiving Party agrees that a breach of this Section may result in immediate and irreparable harm to the Disclosing Party and that money damages alone may be inadequate to compensate. Therefore, in the event of such a breach, the Disclosing Party will be entitled to seek equitable relief, including but not limited to a temporary restraining order, temporary injunction or permanent injunction without the posting of a bond or other security.
INDEMNIFICATION
Company shall indemnify, defend and hold you harmless from and against all third-party claims, suits, actions, damages, settlements, losses, liabilities, costs (including without limitation reasonable attorney's fees) and expenses arising from a claim that Company violates any applicable statute, regulation or law, or infringes any intellectual property right or other legal right of any third party (a "Claim"). This indemnity does not apply to, and Company will have no obligation to Client for, any infringement or misappropriation claim that arises from (i) modifications to the Product by anyone other than Company, (ii) modifications to the Product based upon specifications furnished by Client, (iii) Client's use of the Product other than as specified in the ToS or in the applicable documentation, (iv) use of the Product in conjunction with third-party software, hardware or data other than that approved by Company or (v) any combination of the foregoing. HOWEVER, IN NO EVENT WHATSOEVER SHALL COMPANY’S TOTAL LIABILITY FOR INDEMNIFICATION HEREUNDER EXCEED THREE TIMES THE AMOUNT ACTUALLY RECEIVED BY COMPANY FROM YOU DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT WHICH GAVE RISE TO SUCH LIABILITY.
You shall indemnify, defend and hold Company and its officers, directors, employees, agents, successors and assigns harmless from and against all third-party claims, suits, actions, damages, settlements, losses, liabilities, costs (including without limitation reasonable attorney's fees) and expenses arising from a claim that the User Data violates any applicable statute, regulation or law, or infringes any intellectual property right or other legal right of any third party (a “Claim”), and shall give Company all reasonable information and assistance regarding such claim.
The indemnified Party shall promptly notify the indemnifying Party in writing of any Claim; provided that the failure to provide such notice shall not relieve the indemnifying Party of its indemnification obligations hereunder except to the extent of any material prejudice directly resulting from such failure. The indemnifying Party shall bear full responsibility for, and shall have the right to solely control, the defense (including any settlements) of any Claim; provided, however, that (i) the indemnifying Party shall keep the indemnified Party informed of, and consult with the indemnified Party in connection with the progress of such litigation or settlement and (ii) the indemnifying Party shall not settle any such Claim in a manner that does not unconditionally release the indemnified Party without the indemnified Party's written consent.
In the event any portion of the Product is held or believed by Company, or any portion of the User Data is held or believed by Client, to infringe or misappropriate Intellectual Property Rights of any third party (such portion to be deemed the "Infringing Materials") in any place where the Product is used or accessed, then in addition to any other rights, Company (where the Infringing Materials are the Product) or Client (where the Infringing Materials are the User Data) shall, at its sole expense and at its option: (i) obtain from such third party the right for the other party to continue to use the Infringing Materials; or (ii) modify the Infringing Materials to avoid and eliminate such infringement or misappropriation, as the case may be; or (iii) upon mutual agreement with the other party, remove and disable the Infringing Materials; or (iv) if none of the foregoing remedies is commercially feasible, terminate the ToS.
THIS SECTION SETS FORTH EACH PARTY'S ENTIRE LIABILITY AND OBLIGATION, AND EACH PARTY'S SOLE REMEDY FOR ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS.
LIMITED PRODUCT WARRANTY
Scope of Limited Warranty. Company warrants to Client that during the Term, the Product will perform substantially in accordance with the Product Specifications. The foregoing warranty shall not apply to performance issues of Company (i) caused by factors outside of Company’s reasonable control; (ii) that result from any actions or inactions of Client or any third parties; or (iii) that result from Client's data structure, operating environment or equipment.
Sole Remedy. Should the Product not perform or function as expressly warranted herein, Company shall use its commercially reasonable efforts to correct the nonconformities giving rise to such breach. The foregoing remedy is available only if Client notifies Company in writing of such non-conformity within fifteen (15) days of its discovery by Client, and Company's examination of the Product discloses that such non-conformity exists. THE FOREGOING REMEDIES SHALL BE CLIENT'S SOLE AND EXCLUSIVE REMEDIES AND COMPANY'S ENTIRE LIABILITY FOR ANY BREACH OF THE WARRANTY SET FORTH HEREIN.
Disclaimer of Any Other Warranties. EXCEPT FOR THE EXPRESS, LIMITED WARRANTY PROVIDED, COMPANY MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SUBSCRIBED MATERIALS, COMPANY, OR ANY OTHER ACCOMPANYING MATERIAL PROVIDED HEREUNDER. COMPANY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND OF UNINTERRUPTED OR ERROR-FREE SERVICE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PRODUCT IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY IN WHOLE OR IN PART TO YOU. IN THAT EVENT, EXCEPT AS PROHIBITED BY LAW, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO 60 DAYS FROM THE DATE YOU FIRST UTILIZE THE PRODUCT. THIS DISCLAIMER OF WARRANTIES AND LIABILITIES APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OR PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF OR USE OF RECORDS OR SERVICES, WHETHER FOR BREACH OF CONTRACT, TORTUOUS BEHAVIOR, NEGLIGENCE OR UNDER ANY OTHER CAUSE OF ACTION.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AGREE THAT COMPANY AND ITS AGENTS, DIRECTORS, SHAREHOLDERS, MEMBERS, PARTNERS, MANAGERS, OFFICERS, EMPLOYEES, INFORMATION PROVIDERS, VENDORS, ATTORNEYS OR AFFILIATES MAY NOT BE LIABLE TO YOU OR ANY THIRD PARTY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, GENERAL, COMPENSATORY, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE OF DATA, BUSINESS INTERRUPTION OR OTHER INTANGIBLE LOSSES (EVEN IF UNBOXED TECHNOLOGY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (1) THE USE OR THE INABILITY TO USE THE PRODUCT; (2) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM THE USE OR INABILITY TO USE THE PRODUCT; OR (3) ANY OTHER MATTER RELATING TO THE PRODUCT, AND WITHOUT REGARD TO WHETHER SUCH DAMAGES, OR CLAIMS OF DAMAGES ARISE BASED IN CONTRACT, TORT OR OTHERWISE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. HOWEVER, IN THE EVENT THAT ANY OF THE ABOVE LIMITATIONS ARE HELD INAPPLICABLE OR UNENFORCEABLE FOR ANY REASON, COMPANY’S CUMULATIVE, AGGREGATE AND MAXIMUM LIABILITY FOR ANY CLAIMS SHALL NOT EXCEED THREE TIMES THE AMOUNT ACTUALLY RECEIVED BY COMPANY FROM YOU DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT WHICH GAVE RISE TO SUCH LIABILITY.THE LIMITATIONS OF DAMAGES AND LIABILITY PROVIDED HEREIN ARE MATERIAL ELEMENTS OF THIS ToS. YOU ACKNOWLEDGE AND AGREE THAT COMPANY WOULD NOT BE ABLE TO PROVIDE THE PRODUCT WITHOUT SUCH LIMITATIONS.
If you are a California resident, you agree to waive California Civil Code Section 1542, and any similar provision in any other jurisdiction (if you are a resident of such other jurisdiction), which states: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
SOLE REMEDY
Your sole and exclusive remedies for (i) any damages or loss in any way connected with the Product provided by Company, and (ii) any and all performance or non-performance of the Product provided hereunder, if any, whether or not due to Company’s negligence or breach of any other duty, shall be updating the Product. Company will not be responsible under the ToS for the correction of any program errors as a result of modification or misuse of the Product by you. Under no condition will Company be responsible under the ToS for preparation or conversion of data into the form required for use with the Product.
NOTICES
Notices shall be in writing and shall be deemed to have been received by each of the parties hereto on: (i) the date when delivered by hand, receipt of which is acknowledged in each instance; (ii) the business day immediately following the day when delivered to Federal Express (or a comparable overnight courier service) for overnight or next day delivery to the address below, with respect to notices to Company, and the address provided by you to Company for purposes of invoicing with respect to notices to you (or such notice address as each party may provide to the other from time to time, or (iii) three (3) business days after the date when mailed by United States certified mail (postage prepaid, return receipt requested).
Notice may also be provided, and is effective the date provided, by e-mail to the appropriate Client Manager on behalf of Company and to you at the email you provide.
GOVERNING LAW AND VENUE FOR RESOLVING DISPUTES
This ToS shall be governed by, and will be construed under, the laws of the State of California, U.S.A., without regard to choice of law principles. Those who choose to utilize the Product from locations outside of the United States do so on their own initiative, and are responsible for compliance with local laws if and to the extent local laws are applicable, including without limitation, all applicable laws, rules and regulations regarding the transmission of data exported from the United States or the country in which you reside (if different from the United States).
BY AGREEING TO THESE TERMS YOU ARE: (1) WAIVING CLAIMS THAT YOU MIGHT OTHERWISE HAVE AGAINST COMPANY BASED ON THE LAWS OF OTHER JURISDICTIONS, INCLUDING YOUR OWN; (2) IRREVOCABLY CONSENTING TO THE EXCLUSIVE JURISDICTION OF, AND VENUE IN, STATE AND FEDERAL COURTS IN THE STATE OF CALIFORNIA OVER ANY DISPUTES OR CLAIMS YOU HAVE WITH US; AND (3) SUBMITTING YOURSELF TO THE PERSONAL JURISDICTION OF COURTS LOCATED IN THE CITY OF LOS ANGELES, CALIFORNIA FOR THE PURPOSE OF RESOLVING ANY SUCH DISPUTES OR CLAIMS.
BINDING ARBITRATION
Arbitration Procedures. You and Company agree that, except as provided in Paragraph 4 below, all disputes, controversies and claims related to this ToS, or your use of the Product (each a “Claim”), will be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party will be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of AAA that are in effect at the time the arbitration is initiated (the “AAA Rules”) and under the terms set forth in this ToS. In the event of a conflict between the terms set forth in this Binding Arbitration Section and the AAA Rules, the terms in this Binding Arbitration Section will control and prevail.
Except as otherwise set forth in Paragraph 4 below, you may seek any non-injunctive remedies available to you under state or local laws in an arbitration action. As part of the arbitration, both you and we will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration will be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this ToS, (i) you and Company may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision will be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND COMPANY WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
Location. The arbitration will be conducted in the Los Angeles, California, unless the parties agree to video, phone and/or internet connection appearances.
Limitations. You and Company agree that any arbitration will be limited to the Claim between Company and you individually. YOU AND COMPANY AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION WILL BE JOINED WITH ANY OTHER ARBITRATION.
Arbitration Fees. The party seeking the Claim is responsible for the initial fees to AAA. All other fees and costs of the arbitration will be charged pursuant to the AAA Rules.
Severability. You and Company agree that if any portion this Section is found illegal or unenforceable, except any portion of Paragraph 4, that portion will be severed and the remainder of the Paragraph will be given full force and effect. If Paragraph 4 is found to be illegal or unenforceable, then neither you nor Company will elect to arbitrate any Claim falling within that portion of this Section found to be illegal or unenforceable and such Claim will be exclusively decided by a court of competent jurisdiction within the Los Angeles, California and you and Company agree to submit to the personal jurisdiction of that court.
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS ToS OR YOUR USE OF THE SERVICE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
ENTIRE AGREEMENT; AMENDMENT; WAIVER
The ToS constitutes this entire Agreement between the parties pertaining to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties, whether oral or written. No amendment, supplement, modification, waiver, or termination of the ToS shall be binding unless executed in writing by the party to be bound thereby. No waiver of any of the provisions of the ToS shall be deemed or shall constitute a waiver of any other provision of the ToS, whether or not similar, nor shall such waiver constitute a continuing waiver unless otherwise expressly provided. Conditions may require changes from time to time in the ToS. You will be notified of any changes in advance. Continuing to use the Product after notification of any change is your agreement to the changes, and such changes are then binding on both Company and you.
SEVERABILITY
The possible invalidity of individual provisions of the ToS does not invalidate the ToS as a whole.
NO AGENCY
The ToS does not constitute an agency, partnership, or joint venture between the Parties, and neither Party shall have the authority or power to obligate or bind the other Party in any manner whatsoever, except as specifically provided herein in the ToS.
DIGITAL SIGNATURE PROVISION
Digital Signature Provision. Client represents and warrants that the individual electronically agreeing to the ToS is empowered to agree to the ToS on behalf of Client. Client agrees that an electronic signature as defined in the Electronic Signatures in Global and National Commerce Act validly binds Client.
ASSIGNMENT
Neither Party may assign, sublicense, delegate or otherwise transfer any of its rights or obligations under the ToS without the prior written consent of the other Party. Notwithstanding the foregoing, Company may, without the consent of Clients, assign the ToS to an entity merging with, consolidating with, or purchasing substantially all its assets or stock, provided that the assignee shall assume all rights and obligations under the ToS. Any permitted assignment of the ToS shall be binding upon and enforceable by and against the Parties' successors and assigns, provided that any unauthorized assignment shall be null and void and constitute a breach of the ToS.
FORCE MAJEURE
Neither party shall be entitled to recover damages or terminate this Agreement by virtue of any delay or default in performance by the other party (other than a delay or default in the payment of money) if such delay or default is caused by Acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected; provided that the party experiencing the difficulty shall give the other prompt written notice following the occurrence of the cause relied upon, explaining the cause and its effect in reasonable detail. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.