- End User License Agreement -
Effective Date: August 26, 2019
This End User License Agreement (“Agreement”) is a legal agreement between you and VITALTEK, INC., including its affiliates, subsidiaries (collectively, “VITALTEK”, “we”, “us” or “our”), governing your access to and use of the mobile application named Lunar along with any revisions, updates and/or modifications thereto (the “App”), and any data, products, services and associated materials or media supplied with the App (collectively, the “Services”).
Note that Section 15 of this Agreement contains a mandatory arbitration provision that requires the use of arbitration on an individual basis and limits the remedies available to you in the event of certain disputes.
By clicking “START” or by accessing or using the Services, you agree to be bound by the Agreement. If you do not agree with this Agreement, including the mandatory arbitration provision and class action waiver in Section 15, you are not authorized to access or use the Services for any purpose.
THE SERVICES ARE NOT TARGETED TOWARD OR INTENDED FOR USE BY ANYONE UNDER THE AGE OF EIGHTEEN (18). IF YOU ARE UNDER EIGHTEEN (18) YEARS OF AGE, YOUR PARENT OR GUARDIAN MUST AGREE TO THIS AGREEMENT (BOTH FOR THEMSELVES AND ON YOUR BEHALF) BEFORE YOU CAN USE THE SERVICES. BY USING THE SERVICES, YOU REPRESENT AND WARRANT THAT YOU (A) ARE EIGHTEEN (18) YEARS OF AGE OR OLDER, (B) HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICES, OR ENGAGED IN ANY ACTIVITY THAT COULD RESULT IN SUSPENSION OR REMOVAL FROM THE SERVICES, AND (C) HAVE FULL POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND IN SO DOING WILL NOT VIOLATE ANY OTHER AGREEMENT TO WHICH YOU ARE A PARTY.
3. REGISTRATION, ACCOUNT AND COMMUNICATION PREFERENCES.
To access and use certain areas or features of the Services, you may need to register for an account. You can use your Google Play account and/or Apple ID or create a user account if applicable to purchase and use the Services provided in the App. We own your account and enjoy the right of ownership. You shall obtain the right to use the account after completing the registration process. The right to use the account only belongs to the initial legal registrant. Paid or unpaid transfer, succession and sale of your account are prohibited.
By creating an account, you agree to (a) provide accurate, current and complete account information, (b) maintain and promptly update, as necessary, your account information, (c) maintain the security of your account credentials, (d) be responsible for the confidentiality of any passwords associated with your account as well as the acts or omissions of any third party who has authority to access or use the Services on your behalf, and (e) immediately notify us if you discover or otherwise suspect any security breaches related to the Services or your account.
By creating an account, you also consent to receive electronic communications from us (e.g., via email, text message or by posting notices to the Services) about password changes and other transactional and account information. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal notice requirements, including, but not limited to, that such notices be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by sending an email to email@example.com.
4. TERMS OF SALE
4.1. Continuous Subscriptions. WHEN YOU REGISTER FOR OUR PREMIUM SERVICE SUBSCRIPTION, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT (A) WE ARE (OR OUR THIRD PARTY PAYMENT PROCESSOR IS) AUTHORIZED TO CHARGE YOU ON A MONTHLY, QUARTERLY OR YEARLY BASIS (WHICH MAY VARY FROM VARIOUS SUBSCRIPTION ITEMS ACCORDING TO THE ACTUAL SITUTATION PROVIDED IN THE APP) FOR YOUR SUBSCRIPTION (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR SUBSCRIPTION CONTINUES, AND (B) YOUR SUBSCRIPTION IS CONTINUOUS UNTIL YOU CANCEL IT OR WE SUSPEND OR STOP PROVIDING ACCESS TO THE SERVICES IN ACCORDANCE WITH THIS AGREEMENT.
4.2. Cancellation Policy. YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME BY CANCEL SUBSCRIPTION FROM GOOGLE PLAY OR APPLE CONTACTING CUSTOMER SUPPORT.
4.3. Payment and Billing Information. By providing a credit card or other payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third-party payment processor) to charge your payment method for the total amount of your subscription or other purchase (including any applicable taxes and other charges) (collectively, as applicable, an “Order”). If the payment method cannot be verified, is invalid or is otherwise not acceptable, your Order may be suspended or cancelled. You must resolve any payment method problems before we proceed with your Order. If you want to change or update your payment method information, you can do so at any time by logging into your account.
You acknowledge that the amount billed may vary due to promotional offers, preferences you select, changes you make to your subscription or changes in applicable taxes or other charges, and you authorize us (or our third party-payment processor) to charge your payment method for the corresponding amount.
4.4. Pricing. All prices are shown in U.S. dollars and applicable taxes and other charges, if any, are additional. We reserve the right to adjust prices as we may determine in our sole discretion, at any time and without notice; provided, however, that if we change the amounts or other charges associated with our various subscription plans, we will provide advance notice of such changes in accordance with Section 3. We will not, however, be able to notify you of changes in any applicable taxes. You can choose whether or not to accept the new price prior to completing your next purchase. The new price will apply to your next purchase after it has been published.
4.5. Taxes. We will collect applicable sales tax on the Services for which we determine we have a duty to collect sales tax. If any of our Services are subject to sales tax, you agree that the amount of taxes shown at checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in tax rates.
4.6. Free Trials. From time to time, to the extent legally permitted, we may offer free trials of certain subscriptions for specified periods of time without payment. If we offer you a free trial, the specific terms of your free trial will be provided in the marketing materials describing the particular trial or at registration. Free trials are limited to one (1) per household.
ONCE YOUR FREE TRIAL ENDS, WE (OR OUR THIRD-PARTY PAYMENT PROCESSOR) WILL BEGIN BILLING YOUR DESIGNATED PAYMENT METHOD ON A RECURRING BASIS FOR YOUR SUBSCRIPTION (PLUS ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR SUBSCRIPTION CONTINUES, UNLESS YOU CANCEL YOUR SUBSCRIPTION PRIOR TO THE END OF YOUR FREE TRIAL. INSTRUCTIONS FOR CANCELING YOUR SUBSCRIPTION ARE DESCRIBED IN SECTIONS 4.1 AND 4.2 ABOVE. PLEASE NOTE THAT YOU WILL NOT RECEIVE A NOTICE FROM US THAT YOUR FREE TRIAL HAS ENDED OR THAT THE PAID PORTION OF YOUR SUBSCRIPTION HAS BEGUN. WE RESERVE THE RIGHT TO MODIFY OR TERMINATE FREE TRIALS AT ANY TIME, WITHOUT NOTICE AND IN OUR SOLE DISCRETION.
5. USER SUPPLIED MATERIAL.
Our Services may allow you to upload, store and share content, including messages, text, photos, videos and other materials (collectively, “User Content”). Except for the license you grant below, as between you and VITALTEK, you retain all rights in and to your User Content.
You hereby grant us a nonexclusive, royalty-free, worldwide, fully-paid, and sub-licensable license to (a) use, reproduce, copy, modify, adapt, publish, translate, create derivative works from, distribute, and display your User Content in all media formats and channels now known or later developed without compensation to you; (b) make your User Content available to other users, whether paid or for free (including but not limited to license other users to download, save, view, share or make comments and likes on your User Content); (c) use your User Content in whole or in part, in any manner (whether independently or together with the App), for any purpose, at our own discretion, to do the self-promotion (including but not limited to the promotion of the App in websites, product introduction, exhibitions, demo for potential cooperators and/or customers, press conference, advertising, promotion in cooperative websites).
The foregoing license will stop when you remove your User Content from the App, provided however, the authorized use (whether by us or by other users) happened prior to the removal shall not be affected. For example, if your User Content has been downloaded by any other users via the Services, they can still view your User Content even after you have removed the same from the App.
If you supply or transmit any User Content via the Services, you represent and warrant to us that you have the legal right necessary to grant us the license described above, and that such material will not violate any applicable law or the lawful rights of any person or entity (including, without limitation copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity).
Any User Content posted publicly or sent privately is the sole responsibility of the person that submitted it. Although we reserve the right to review or remove all User Content on the Services, we do not necessarily review all of it. As such, we do not take responsibility for any User Content provided through the Services.
6. APPROPRIATE USE OF THE SERVICES.
You agree to use the Services in accordance with all applicable local, state, national and foreign laws, treaties and regulations. You will not violate any contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using our Services.
In addition, without limitation, you will not, directly or indirectly, do any of the following while using or accessing the Services:
You may also only upload or otherwise share User Content that you have all necessary rights to disclose. You may not upload, store or share any User Content that:
In addition, although we have no obligation to screen or monitor User Content, we may delete or remove User Content at any time and for any reason.
7. TERMINATION; CANCELLATION.
We may change the Services, and Our Content (as defined below) at any time. We may discontinue offering our Services, and we may suspend or terminate your right to use our Services at any time, in the event that you breach this Agreement, for any other reason, or for no reason at all, in our sole discretion, and without prior notice to you.
All licenses and other rights granted to you by this Agreement will immediately terminate upon termination of your right to use our Services or our termination of the Services. This Agreement will survive and continue to apply after any suspension, termination, or cancellation, except that your access rights and other rights as a user will be suspended, terminated or cancelled, respectively.
8. INTELLECTUAL PROPERTY; LIMITED LICENSE.
The Services, and the text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans and other content contained therein (collectively, the “Our Content”) are owned by or licensed to us and are protected under any and all applicable laws. Except as explicitly stated in this Agreement, we and our licensors reserve all rights in and to our Services and Our Content. You acknowledge such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with the ownership of or rights with respect to the App.
We hereby grant you a limited, revocable, non-transferable, non-exclusive and non-sublicensable license to access and use the Services and Our Content; provided, however, that such license is subject to this Agreement and does not include any right to (a) sell, resell our Services and Our Content; (b) copy, reproduce, distribute, publicly perform or publicly display Our Content, except as expressly permitted by us or our licensors; (c) modify Our Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Services and Our Content; (d) use any data mining, robots or similar data gathering or extraction methods; and (e) use our Services and Our Content other than for their intended purposes or in a manner prohibited under this Agreement. Any use of our Services and Our Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.
9. LINKS TO THIRD PARTIES.
10. COPYRIGHT COMPLAINTS.
We have a policy of limiting access to our Services and terminating the accounts of users who infringe the intellectual property rights of others. If you believe that your work has been improperly copied and posted on the Services, such that it constitutes infringement, you may send copyright infringement compliants to us by emailing at firstname.lastname@example.org.
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to us for certain costs and damages, thus we suggest that you consult your legal advisor before filing a notice with us.
11. DISCLAIMER OF WARRANTIES.
WHILE WE ENABLE USERS TO COMMUNICATE WITH ONE ANOTHER, WE ARE NOT RESPONSIBLE FOR MONITORING SUCH INFORMATION AND COMMUNICATIONS, AND WE ARE NOT A PARTY TO INTERACTIONS, AND ARE NOT RESPONSIBLE FOR INTERACTIONS THAT MAY OCCUR BETWEEN USERS, WHETHER ONLINE OR OFFLINE.
YOUR USE OF THE SERVICES AND OUR CONTENT IS AT YOUR SOLE DISCRETION AND RISK. THE SERVICES AND OUR CONTENT, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND. IT IS YOUR RESPONSIBILITY TO PROVIDE AND MAINTAIN ALL EQUIPMENT AND INTERNET SERVICE NECESSARY TO USE THE SERVICES.
WE AND OUR LICENSORS AND AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THE SERVICES AND OUR CONTENT, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, COURSE OF DEALING, OR COURSE OF PERFORMANCE.
WE MAKE NO REPRESENTATIONS CONCERNING, AND DO NOT GUARANTEE, (A) THE SECURITY, ACCURACY, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY OUR CONTENT OR ITS APPLICABILITY TO YOUR INDIVIDUAL CIRCUMSTANCES, OR (B) THAT THE SERVICES WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED.
IF YOU ARE USING THE APP PRE-LOADED ON, EMBEDDED IN, COMBINED, DISTRIBUTED OR USED WITH OR DOWNLOADED ONTO OTHER PRODUCTS, HARDWARE, SOFTWARE APPLICATIONS, PROGRAMS OR DEVICES (“OTHER TECHNOLOGY”), YOU HEREBY AGREE AND ACKNOWLEDGE THAT: (A) YOU MAY BE REQUIRED TO (I) ENTER INTO A SEPARATE LICENSE AGREEMENT WITH; AND/OR (II) PURCHASE A SUBSCRIPTION FROM; AND/OR (III) PAY A FEE, TO THE RELEVANT THIRD PARTY OR LICENSOR FOR THE USE OF SUCH OTHER TECHNOLOGY; (B) SOME PRODUCTS AND/OR FUNCTIONALITY MAY NOT BE ACCESSIBLE THROUGH THE OTHER TECHNOLOGY; AND (C) WE CANNOT GUARANTEE THAT THE APP SHALL ALWAYS BE AVAILABLE ON OR IN CONNECTION WITH SUCH OTHER TECHNOLOGY.
NO ADVICE OR INFORMATION PROVIDED TO YOU BY US WILL CREATE ANY WARRANTY THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT PERMIT US TO EXCLUDE WARRANTIES IN THESE WAYS, SO IT IS POSSIBLE THAT THESE EXCLUSIONS WILL NOT APPLY TO OUR AGREEMENT WITH YOU. IN SUCH EVENT THE EXCLUSIONS WILL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
12. LIMITATION OF LIABILITY.
IN NO EVENT WILL WE, OUR LICENSORS, AFFILIATES, AND OUR RESPECTIVE OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS AND REPRESENTATIVES, (COLLECTIVELY, “OUR PARTIES”) BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF DATA OR LOST PROFITS, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON INFORMATION OBTAINED THROUGH THE SERVICES OR FROM THE CONDUCT OF YOU OR ANYONE ELSE (INCLUDING BUT NOT LIMITED TO BODILY INJURY, DEATH OR PROPERTY DAMAGE), WHETHER ONLINE OR OFFLINE, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES, OR OUR CONTENT, WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
IF YOU ARE DISSATISFIED WITH THE SERVICES, OUR CONTENT, OR THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES. IF THE FOREGOING IS NOT ENFORCEABLE AGAINST YOU, IN NO EVENT WILL THE CUMULATIVE LIABILITY OF OUR PARTIES TO YOU, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE GREATER OF (I) THE AGGREGATE AMOUNT YOU PAID US TO ACCESS OR USE THE SERVICES IN THE MOST RECENT THREE-MONTH PERIOD, OR (II) $50.
SOME JURISDICTIONS DO NOT PERMIT US TO LIMIT OUR LIABILITY IN THESE WAYS, SO IT IS POSSIBLE THAT THESE LIMITATIONS WILL NOT APPLY TO OUR AGREEMENT WITH YOU. IN SUCH EVENT THE LIMITATIONS WILL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
You will indemnify, defend, and hold harmless Our Parties from and against any and all claims, causes of action, demands, liabilities, losses, costs or expenses (including, but not limited to, reasonable attorneys’ fees and expenses) arising out of or relating to any of the following matters:
13.1. your access to or use of the Services and/or Our Content;
13.2. your User Content;
13.3. your violation of any of the provisions of this Agreement;
13.4. any activity related to your registration by you or any other person accessing the Services through your account, including, without limitation, negligent or wrongful conduct;
13.5. your conduct in connection with our Services; or
13.6. your violation of any third party right, including, without limitation, any intellectual property right, publicity, confidentiality, property or privacy right.
We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
To the fullest extent permitted by applicable law, you release us and Our Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties.
IF YOU ARE A CALIFORNIA RESIDENT IN THE UNITED STATES, YOU HEREBY WAIVE ANY RIGHTS YOU MAY HAVE UNDER CALIFORNIA CIVIL CODE § 1542 AS WELL AS ANY OTHER STATUTE OR COMMON LAW PRINCIPLES THAT WOULD OTHERWISE LIMIT THE COVERAGE OF THIS RELEASE TO INCLUDE ONLY THOSE CLAIMS WHICH YOU MAY KNOW OR SUSPECT TO EXIST IN YOUR FAVOR AT THE TIME OF AGREEING TO THIS RELEASE.
SOME JURISDICTIONS DO NOT PERMIT THE AFORESAID RELEASE, SO IT IS POSSIBLE SUCH RELEASE WILL NOT APPLY TO OUR AGREEMENT WITH YOU. IN SUCH EVENT THE RELEASE WILL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
15. DISPUTE RESOLUTION; BINDING ARBITRATION.
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
15.1. Binding Arbitration
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) arising out of or related to a violation of Section 6 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and we agree (a) to waive your and our respective rights to have any and all Disputes arising from or related to this Agreement, or the Services, resolved in a court, and (b) to waive your and our respective rights to a jury trial. Instead, you and we agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
15.2. No Class Arbitrations, Class Actions or Representative Actions
You and we agree that any Dispute arising out of or related to this Agreement or the Services is personal to you and us, and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and we agree that there will be no class arbitration or arbitration in which an individual attempt to resolve a Dispute as a representative of another individual or group of individuals. Further, you and we agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals. The arbitrator does not have the power to vary these class action waiver provisions.
15.3. Federal Arbitration Act
You and we agree that this Agreement affects interstate commerce and that the enforceability of this Section 15 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
15.4. Notice; Informal Dispute Resolution
You and we agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to us shall be sent by email to email@example.com. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with Section 3, and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and we cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or we may, as appropriate and in accordance with this Section 15, commence an arbitration proceeding or, to the extent specifically provided for in Section 15.1, file a claim in court.
EXCEPT FOR DISPUTES ARISING OUT OF OR RELATED TO A VIOLATION OF SECTION 6 OR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND WE AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR US WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND WE WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE).
You and we agree that (a) any arbitration will occur in the State of California, Santa Clara County, or in the county in which you reside, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the American Arbitration Association (“AAA”) under its rules for consumer arbitrations (“AAA Rules”), which are hereby incorporated by reference, and (c) that the state or federal courts of the State of California and the United States, respectively, sitting in the State of California, Santa Clara County, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
15.6. Authority of Arbitrator
As limited by the FAA, this Agreement and the applicable AAA Rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by this Agreement. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. Notwithstanding any other provision of this Section 15, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained in this Section 15, are to be decided only by a court of competent jurisdiction, and not by the arbitrator.
15.7. AAA Rules
The AAA Rules and additional information about AAA are available on the AAA website. By agreeing to be bound by this Agreement, you either (a) acknowledge and agree that you have read and understand the AAA Rules, or (b) waive your opportunity to read the AAA Rules and any claim that the AAA Rules are unfair or should not apply for any reason.
If any term, clause or provision of this Section 15 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 15 will remain valid and enforceable. Further, the waivers set forth in Section 15.2 are severable from the other provisions of this Agreement and will remain valid and enforceable, except as prohibited by applicable law.
16. GOVERNING LAW; VENUE.
THIS AGREEMENT AND OUR RELATIONSHIP WITH YOU WILL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, EXCLUDING ITS CHOICE OF LAWS RULES. YOU AND WE EACH IRREVOCABLY AGREES THAT ANY DISPUTE BETWEEN THE PARTIES THAT IS NOT SUBJECT TO ARBITRATION OR CANNOT BE HEARD IN SMALL CLAIMS COURT, SHALL BE RESOLVED ON AN INDIVIDUAL BASIS EXCLUSIVELY IN THE U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, OR THE STATE COURTS LOCATED IN SANTA CLARA COUNTY, CALIFORNIA. YOU AND WE EACH IRREVOCABLY CONSENTS TO THE PERSONAL JURISDICTION OF THESE COURTS AND WAIVES ANY AND ALL OBJECTIONS TO THE EXERCISE OF JURISDICTION BY THESE COURTS AND TO THIS VENUE. Notwithstanding the foregoing, however, you and we agree that we may commence and maintain an action or proceeding seeking injunctive or other equitable relief in any court of competent jurisdiction. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect.
17. GENERAL TERMS.
17.1. Severability: If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions, which shall remain in full force and effect.
17.2. Waiver: A provision of this Agreement may be waived only by a written instrument executed by the party entitled to the benefit of such provision. Our failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
17.3. Independent Contractor: You agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement or use of the Services.
17.4. Entire Agreement: This Agreement (including the Apple Device Additional Terms which apply to users of our iOS App) constitutes the entire agreement between you and us relating to your access to and use of the Services.
17.5. Headings: The heading references herein are for convenience purposes only, do not constitute a part of this Agreement, and shall not be deemed to limit or affect any of the provisions hereof.
18. QUESTIONS AND COMMENTS.
If you have other question or suggestion concerning the Services or this Agreement, please contact us via firstname.lastname@example.org.
APPLE DEVICE ADDITIONAL TERMS
If you access an App via a mobile device or tablet branded by Apple, Inc. (“Apple”) and running Apple’s iOS (an “Apple Device”), the following terms (“Apple Device Additional Terms”) are hereby made part of this Agreement:
● Conflicting Terms. If these Apple Device Additional Terms conflict with any other provision of this Agreement, then the Apple Device Additional Terms shall control with respect to access and use of the Services via an Apple Device.
● Agreement with Us, Not Apple. You acknowledge that this Agreement is an agreement between we and you, and not with Apple. We, not Apple, is solely responsible for any App you access via your Apple Device (“iOS App”) and the content thereof. If this Agreement is less restrictive with respect to an iOS App or otherwise conflict with, the Apple App Store Terms of Service (the “App Store Terms of Service”), the App Store Terms of Service shall apply to the extent of any conflict.
● Scope of License. The license granted to use an iOS App is limited to a non-transferable license to use the App on an Apple Device that you own or control and as permitted by the usage rules set forth in the App Store Terms of Service.
● Maintenance and Support. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to any iOS App. If we decide (in our sole discretion) to provide support and maintenance services for an iOS App, we are solely responsible for providing such services.
● Warranty. In the event of any failure of the an iOS App to conform to any applicable warranty provided by us in this Agreement, you may notify Apple and Apple will refund the purchase price for the iOS App (if any) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iOS App and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty is our sole responsibility. Notwithstanding the foregoing, we are not obligated to provide any warranty with respect to an iOS App and you acknowledge and agree that this paragraph will not have any effect on the warranty disclaimers provided in this Agreement.
● Product Claims. You hereby acknowledge that we, not Apple, is responsible for addressing your or any third-party claims relating to an iOS App and/or use of an iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that an iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Note that, pursuant to the limitation of liability provision set forth in this Agreement, this Agreement will not limit our liability beyond what is permitted by applicable law.
● Intellectual Property Rights. You acknowledge that, in the event of any third-party claim that an iOS or your possession and use (in accordance with this Agreement) of an iOS App infringes that third party’s intellectual property rights, we, not Apple, is solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
● Legal Compliance. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
● Third-Party Beneficiary. You hereby acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement with respect to any iOS App, and that, upon your acceptance of this Agreement, Apple has the right (and deemed to have accepted the right) to enforce this Agreement against you with respect to the iOS App as a third-party beneficiary thereof.
● Questions or Complaints. Please address your questions, complaints or claims with respect to an iOS App to us at the contact information herein.