1. ABOUT US
1.1 Our Platform means our website(s), including but not limited to: https://neome.info (the “Site”) and mobile applications (including the Neome app, which is available as follows:
- iPhone https://apps.apple.com/us/app/neome-self-care-stories/id1624470343
- Android https://play.google.com/store/apps/details?id=mental.health.self.therapy ,
each an “App” and collectively the “Apps”; and, together with the Site, the “Platform”). Any related documentation; any images, logos, music, photographs, and video content that are incorporated into and form part of the Platform, are managed and operated by us (“Company”, “we”, “our”, or “us”).
Our services to you (the “User” or “you”), include daily personal development emails (as described on the Platform), and access to the App and any other services made available to you on our Platform for the period of time you selected when you purchased our services (the “Services”).
The Company/Us/We/Our shall mean: BROADMIND LIMITED, a private company incorporated and registered in Cyrpus whose office is at Boumpoulinas, 1-3, Bouboulina Building, 4th Floor, Flat/Office 42, 1060, Nicosia, Cyprus
1.2 We can be contacted by writing to: BROADMIND LIMITED, Boumpoulinas, 1-3, Bouboulina Building, 4th Floor, Flat/Office 42, 1060, Nicosia, Cyprus, General Partner: Daria Curamsina and by email at firstname.lastname@example.org.
2.1 Our Services are for your personal use only. They are not designed or intended to be used by any other party. Accordingly, you agree not to distribute or provide access to our Services to any other party. We grant you a limited, revocable, nonexclusive license to use the Platform and our Services for your own personal use and not for re-publication, distribution, assignment, sublicense, sale, preparation of derivative works or any other use.
2.3 These Terms constitute an agreement between you and us regarding your use of our Platform.
(b) Any terms you have with your respective mobile network provider (“Mobile Provider”) continue to apply and you may be charged by the Mobile Provider for access to network connection services for the duration of the connection while accessing our Platform and any third party charges as may arise from time to time. You will be solely responsible for any costs and other charges or expenses charged by your Mobile Provider, internet service provider, network operator and/or any other third party provider in relation to your internet service, your mobile service and any use of our Platform. In the event that you are not the bill payer for the device being used to access our Platform, you will be assumed to have obtained permission from the relevant bill payer for using our Platform.
(c) If you use our Platform on any device not owned by you, you must have the owner’s permission to do so. You will be responsible for complying with these Terms, whether or not you own the device or not.
(d) Any words following the terms ‘including’, ‘include’, ‘in particular’, ‘for ‘example’ or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(e) While all of these Terms are important, you should pay particular attention to:
(i) the conditions of use of our Platform as set out in paragraph 6;
(ii) the acceptable use of our Platform as set out in paragraph 8;
(iii) our liability to each other as set out in paragraph 13; and
(iv) when we may bring these Terms to an end as set out in paragraph 21.
3.1 In order for us to provide the Services and for you to make full use of our Platform, you will need to register and set up an account (the “Account” or “User Account”), which Account will remain in effect for the period of time you selected to receive our Services. You acknowledge and agree that the information provided by you is true, accurate and correct and agree to the following:
(a) You agree to promptly notify us in writing in the event of any changes to any of your information.
(b) Your login details are for your own personal use only and you must keep your login details confidential and secure. Sharing your login details with any other person is strictly prohibited.
(c) You must notify us immediately if you suspect or become aware of any unauthorized use of your login details or any breach of our security by sending us an email to the address listed in paragraph 1 detailing the unauthorized use or breach.
3.2 Without prejudice to our rights and remedies, we reserve the right to promptly disable your login details and suspend the Services and your access to our Platform if in our reasonable opinion we believe that you have breached any of the provisions of these Terms.
4. OUR PLATFORM
Our Platform includes our Site and our Apps. In order to comply with applicable legislation, as well as the policies applied by various app stores, the names of our applications may vary (e.g. depending on the User’s locale).
5. AVAILABILITY AND SUPPORT
We will use reasonable endeavors to ensure that our Platform is available for use at all times, that our App is available for download and use at all times and that we provide the daily email for each day of the Account term period. In addition, we will respond to a User’s questions about the Services or the Platform within 48 hours of receipt of such question, which should be sent by email to the email address listed in paragraph 1. Notwithstanding the above, our Platform is provided over the internet and mobile networks and aspects of our Services are provided by email and so their operation and availability may be affected by factors outside of our control at any time for any reason. We do not guarantee that our Services or use of or access to our Platform will always be available and/or uninterrupted.
6. CONDITIONS OF USE
6.1 Upon your agreeing to comply with these Terms, you shall be permitted to:
(a) download our Apps onto a device and view, use and display our Apps on the device for your personal purposes for the duration of our Service to you;
(b) use any related documentation to support use of our Apps as permitted by these Terms; and
(c) receive updates to the software code of our Apps via the Apps store that you downloaded our Apps from, which may incorporate patches and corrections to errors in our software code.
(d) receive daily emails regarding our Services for the duration of our Services to you.
Your right to use our Apps is personal to you, you may not otherwise transfer our Apps to anyone else for any reason. If you sell or give away any device on which our App is installed, you must remove our Apps from it first.
The ways in which you can use our App may also be governed by the terms of the app store that you downloaded our Apps from. In the event of a conflict between these Terms and the terms of the app store that you downloaded our App from, the terms of the App store from which you downloaded our Apps shall take priority.
Unless you have requested and received our prior written consent or unless expressly permitted in these Terms, you must not:
(a) copy our Platform or our emails transmitted to you as part of our Services except as part of the normal use of our Platform where it is necessary for the purpose of creating a back-up for security;
(b) modify or translate our Apps or any part of our Platform in whole or in part, or combine or merge our Apps or Platform with any other object code or program;
(c) reverse engineer, decompile, disassemble, reduce the object code of our Apps or any part of our Platform to source code form or create (or attempt to create) derivative works based on the whole or any part of our Apps or any part of our Platform, except to the extent permitted by applicable law and provided that the information obtained by you during such activities:
(i) is not disclosed or communicated without our prior written consent to any third party to whom it is not necessary to disclose or communicate it to in accordance with applicable law;
(ii) is not used to create any software that is substantially similar in its expression to our Apps or any part of our Platform;
(iii) is kept secured; and
(iv) is used only in accordance with applicable law;
(d) distribute, sub-license, assign, share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau purposes, or otherwise transfer our Apps or your right to use our Apps or any part of our Platform;
(e) remove, modify, block, disable, obscure or impair any copyright, trademark, or other proprietary notices, material or advertising belonging to us, our licensors or other third parties contained within our Apps or any part of our Platform;
(f) incorporate our Apps into another service or website or make it available via framing or mirrors;
(g) extract any data or metadata from our Apps, Platform or Services (including our emails) nor create any index or database incorporating any part of either;
(h) circumvent, disable or otherwise interfere with security-related features of our Apps or Platform or features that:
(i) prevent or restrict use or copying of any part of our Apps or Platform; or
(ii) enforce limitations on use of our Apps or Platform;
(i) do anything that may cause damage to our Apps or Platform;
(j) carry out any harmful or illegal activities using our Apps, Platform or our Services; or
(k) use our Apps, Services or Platform in any manner not expressly authorized by these Terms;
(l) use any robot, spider or other automated device or process to access the Apps or Platform for any purpose or copy any material;
(m) publish, post, upload or distribute user content or content that is illegal or that you don’t have permission to freely distribute;
(n) use or distribute unauthorized software programs or tools, such as “auto” software programs, “macro” software programs, “cheat utility” software program or applications, exploits, cheats, or any other hacking, altering or cheating software or tool;
(o) modify any file or any other part of the Apps, Services or our Platform that we do not specifically authorize you to modify.
8. ACCEPTABLE USE
(a) not use our Platform or Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these Terms, or act fraudulently or maliciously (for example, by hacking into or inserting malicious code, such as viruses, or harmful data, into our Apps or into any operating system);
(b) comply with all applicable federal, state and local laws, rules and regulations regarding the use of the Platform and your use of our Services;
(b) not infringe any rights (including intellectual property rights) belonging to us or any third party in relation to your use of our Platform or the Services;
(c) not transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of our Platform or the Services;
(d) not use our Platform or Services in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users;
(e) comply with any applicable third party terms and conditions in respect of your use of our Platform; and
(f) not collect or harvest any information or data from any service or our systems or attempt to decipher any transmissions to or from our servers.
9. MEDICAL DISCLAIMER
WE ARE NOT A LICENSED MEDICAL CARE OR METHAL HEALTH PROVIDER AND OUR APPS ARE NOT INTENDED TO REPLACE PROFESSIONAL MEDICAL OR MENTAL HEALTH ADVICE, THERAPY, COUNSELING OR DIAGNOSIS, TREATMENT OR MANAGE ANY ILLNESS OR MENTAL HEALTH OR OTHER MEDICAL CONDITION. You are solely responsible for your own health AND MENTAL HEALTH. This App is offered for informational purposes only, and in no way intends to diagnose, cure, or treat any medical, mental health or other condition.
NOTHING IN OUR APPS OR SERVICES ARE ASSOCIATED WITH, SHOULD BE TAKEN AS, OR UNDERSTOOD AS MEDICAL ADVICE, ASSISTANCE OR MENTAL HEALTH THERAPY, NOR SHOULD IT BE INTERPRETED IN SUBSTITUTION FOR ANY MEDICAL ADVICE, ASSISTANCE OR MENTAL HEALTH THERAPY OR COUNSELING, OR USED OR REFERRED TO INSTEAD OF SEEKING APPROPRIATE MEDICAL ADVICE, ASSISTANCE OR MENTAL HEALTH THERAPY OR COUNSELING FROM HEALTH CARE, INCLUDING MENTAL HEALTH, PROVIDERS.
PLEASE NOTE THAT YOU SHOULD CONSULT WITH A HEALTH CARE PROVIDER IF YOU ARE EXPERIECING A HEALTH CARE ISSUE; AND, YOU SHOULD CONSULT WITH A MENTAL HEALTH PRACTICTIONER IF YOU ARE EXPERIENCING A MENTAL HEALTH ISSUE.
WE DISCLAIM LIABILITY FOR ANY ERRORS OR OMISSIONS, OR FOR UNINTENDED TECHNICAL INACCURACIES, OR TYPOGRAPHICAL ERRORS IN THE PROVIDED MATERIALS, AS WELL AS VIOLATION OF ANY ETHICAL OR MORAL STANDARDS APPLICABLE TO YOUR WELL BEING AND PERSONAL DEVELOPMENT.
10. FEES AND TAXES
(a) Our fees are as set forth and listed on the Site.
(B) In certain jurisdictions, the Company may be required to collect tax on your payment for the Services.
11. APP CONTENT
The App Content may include trademarks or copyright material owned by us or third parties. The App Content includes the images, logos, music, photographs and video content that are incorporated into and form part of our Apps. The term App Content also includes any part of any of the App Content, or any assemblage, deviation, manipulation, modification, screen print or copy of, or derivative work based on or including any of the App Content. The App Content may only be used as part of our Apps and may not be used independently.
12. INTELLECTUAL PROPERTY RIGHTS
All intellectual property rights in our Platform and Services (including each any every email transmitted to you as part of the Services) throughout the world belong to us and our licensors and the rights in our Platform and Services are licensed (not sold) to you. The information provided by the Company on the Platform and through its Services will continue to be the exclusive property of the Company. Your payment and our provision of the Services shall not be deemed to convey any right, title or interest, including patent, copyright or other proprietary right, in or to such information. The programs and software which operate the Platform is confidential trade secrets of the Company and, therefore, you agree not to modify the programs or any embodiment thereof or attempt to decipher, decompile, disassemble or reverse engineer the programs or software or any embodiment thereof.
13. LIABILITY AND INDEMNIFICATION
13.1 If we fail to materially comply with these Terms we are responsible for any material loss or damage you suffer that is a foreseeable result of our breaking these Terms or our failing to use reasonable care and skill, but subject to this paragraph 13, we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time you accepted these Terms, both we and you knew it might happen (“Foreseeable Losses”); and subject to this paragraph 13, we limit our aggregate liability for Foreseeable Losses, arising out of or in connection with these Terms, to you in respect of all events occurring in any calendar year, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, to the greater of:
(a) 100% of the fees paid by you to us for the Services; and
13.2 YOU WAIVE CALIFORNIA CIVIL CODE §1542, OR ANY SIMILAR LAW, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
13.3 Subject to this paragraph 13, circumstances giving rise to a loss or damage which is not foreseeable includes but shall not be limited to:
(a) any use of our Platform in a manner that we do not authorize;
(b) ending, suspending or restricting use of our Platform in accordance with these Terms;
(c) any loss or damage caused by us in circumstances where there is no breach of contractual obligation or legal duty owed to you by us;
(d) any loss or damage (including to any device or content belonging to you) caused by us to the extent that such loss or damage results from your negligence, your failure to follow our reasonable instructions or any other breach of these Terms (or any other contract you have in place with us), unless we were in breach of a legal obligation or duty of care owed to you by us and that breach is the substantial cause of the loss or damage;
(e) any loss or damage caused by any error, bugs or viruses arising in your use of our Platform that are not directly caused by or attributable to our Platform or Services, or any incompatibility of our Platform or Services with any other software, hardware or material on your device; and
(f) any breach of paragraphs 7 or 8 by you.
13.4 Nothing in these Terms excludes or limits our liability for death or personal injury arising from our negligence, or our fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited under applicable legislation.
13.5 If defective digital content that we have supplied damages a device or digital content belonging to you, we will either repair the damage or pay you compensation. However, we will not be liable for damage that you could have avoided by following our advice to apply an update offered to you free of charge or for damage that was caused by you failing to correctly follow installation instructions or to have in place the technical requirements advised by us.
13.6 Our Apps are for U.S. and Canadian domestic and private use only. If you use our Apps for any commercial, business or resale purpose we will have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
13.7 In some jurisdictions consumer protection laws may not allow certain disclaimers or exclusions or limitations of liability and consequently some of the disclaimers, exclusions and limitations of liability in these Terms may not apply.
13.8 We recommend you back up any content and data used in connection with our Apps, to protect yourself in case of problems with our Apps.
13.9 Our Apps have not been developed to meet your individual requirements. Please check if the facilities and functions of our Apps (as described on the app stores where our Apps are available and in the related documentation) meet your requirements.
13.10 If our provision of support for our Platform is delayed by an event outside our control then we will contact you as soon as possible to let you know and we will take steps to minimize the effect of the delay. Provided we do this we will not be liable for delays caused by the event.
13.11 If our provision of our Services to you is delayed by an event outside our control then we will contact you as soon as possible to let you know and we will extend the term period to reflect the days we were unable to provide Services.
13.12 You agree that you will compensate us for any losses (including reasonable legal fees) that we incur as a result of any breach of paragraph 7 or 8 by you.
13.13 Providing a valid email address is the sole responsibility of the User. If an incorrect email address is specified, the User will not receive the Services and may be limited in access to the application, as well as in receiving response from Company’s support for objective reasons.
13.14 UNDER NO CIRCUMSTANCES WILL THE COMPANY BE LIABLE OR RESPONSIBLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING DAMAGES FROM LOSS OF BUSINESS, LOST PROFITS, LITIGATION, OR THE LIKE), SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN ANY WAY RELATING TO THE PLATFORM OR THE SERVICES, YOUR USE OF THE PLATFORM OR THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE AND/OR CONTENT IS TO CEASE ALL OF YOUR USE OF THE PLATFORM AND SERVICES.
13.15 THE ABOVE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 13 ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. THEY SHALL APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND ANY ASPECTS OF THEM THAT ARE DEEMED VOID OR UNENFORCEABLE SHALL BE SEVERED WHILE LEAVING THE REMAINDER IN EFFECT.
13.16 You will indemnify, defend and hold the Company and its subsidiaries and affiliates (collectively, the “Indemnitees”) harmless from and against any and all claims and expenses, including reasonable attorney’s fees, which may be asserted against or incurred by the Indemnitees based upon your improper use of the Platform, the Services or your failure to comply with the Terms.
13.17 WE DISCLAIM ALL WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY EXPRESS WARRANTIES, STATUTORY WARRANTIES, AND ANY IMPPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TO THE EXTENT YOUR JURISIDICTION DOES NOT ALLOW LIMITATIONS ON WARRANTIES, THIS LIMITATION MAY NOT APPLY TO YOU. YOUR SOLE AND EXCLUSIVE REMEDY RELATING TO YOUR USE OF OUR PLATFORM AND SERVICES, EXCEPT AS MAY OTHERWISE BE SET FORTH HEREIN, SHALL BE TO DISCONTINUE USING OUR PLATFORM AND SERVICES.
14. YOUR PRIVACY
14.2 Please be aware that internet transmissions are never completely private or secure and that any message or information you send using our Platform may be read or intercepted by others, even if there is a special notice that a particular transmission is encrypted.
14.3 By using our Platform, you agree to us collecting and using technical information about the devices you use our Platform on and related software, hardware and peripherals to improve our products.
15. THIRD-PARTY WEBSITES
You acknowledge that our Platform may contain links to third-party websites (whether by way of advertisements or otherwise) that are not owned or controlled by us. Such links are provided for your reference only. We do not control such websites and are not responsible for the contents or your use of them, and as a result, we do not accept responsibility for the availability, suitability, reliability or content of such third-party websites.
Our inclusion of such hyperlinks in our Platform does not imply any endorsement of the material or the views expressed within them.
If you think our Platform is faulty or misdescribed please contact us using the details provided in paragraph 1.
If we have to contact you we will do so by email, using the contact details you have provided to us.
17. ADVERTISING AND MONETISATION
You acknowledge that our Apps and the App Content may be supported by advertising revenues and we may place advertising, promotions or sponsored content on our Apps or on, about, or in conjunction with the App Content. You acknowledge that we may not always identify advertising, promotions and sponsored content and the manner, mode and extent of such advertising, promotions and sponsored content is subject to change without notice to you. We may at our sole discretion provide the ability to pay to remove advertisements via the settings menu within our Apps.
18. CHANGES TO OUR PLATFORM
From time to time we may automatically update our Platform to improve performance, enhance functionality, reflect changes to the operating system or address security issues. In respect of the Apps, if you choose not to install such updates or if you opt out of automatic updates you may not be able to continue using our Apps. Changes to our Apps will not prevent our Apps working with the versions of the operating system shown on the app store that you downloaded the App from.
19. CHANGES TO THESE TERMS
19.1 These Terms may only be modified with our prior written consent. We may alter or amend these Terms, including introducing new terms, that are:
(a) the result of a change in applicable law or our business;
(b) necessary for the provision of our Platform; or
(c) the result of any improvements to our Platform.
19.2 Subject to paragraph 19, if we make any changes (including any changes to our policies), we will give advance written notice to you via electronic communication within our Apps or the Services. If you notify us in writing within the fifteen (15) days that you do not accept the change, these Terms and our Services will terminate immediately. However, if you do not terminate our Services or if you continue to use our Platform after providing such notice or after the fifteen (15) day period, you are accepting these Terms as updated.
19.3 We are under no obligation to notify you of any changes to these Terms that result in minor adjustments or corrections to these Terms.
20. TRANSFER OF RIGHTS
20.1 We may transfer our rights and obligations under these Terms to another organization. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under these Terms.
20.2 You may only transfer your rights or your obligations under these Terms to another person if we agree in writing.
21.1 These Terms apply upon your purchase of our Services and acceptance of these Terms or the use of our Services (the “Effective Date”) and will remain in full force and effect while you use our Platform and use our Services until terminated in accordance with this paragraph 21.
21.2 We may terminate these Terms, the Services and your use of our Platform, or suspend your use of our Platform, immediately by written notice to you if:
(a) we reasonably consider that you have used our Platform or Services in violation of these Terms;
(b) we reasonably believe there has been unauthorized access to our Platform;
(c) we, at our sole discretion, decide to withdraw our Platform (whether in whole or in part);
(d) we have a legal or regulatory obligation imposed on us, which impacts our ability to provide our Platform; or
(e) for any other reason provided that we have given you advance written notice by email, SMS or via an electronic communication within our Platform.
21.3 We may discontinue licensing any of the App Content at any time at our sole discretion. In this instance you will be able to continue to use our Apps with the App Content, but it will no longer be available on app stores and will no longer be supported by us.
21.4 You can terminate these Terms by ceasing to use our Platform, deleting or uninstalling our Apps from your device and notifying us (at the email address listed in paragraph 1) that you are terminating our Services.
21.5 Upon termination for any reason:
(a) all rights granted to you under these Terms cease (however, any liabilities incurred by you under these Terms prior shall survive any such termination);
(b) you must cease all activities authorized by these Terms; and
(c) you must delete or remove our Apps from your device.
(a) Upon termination of our Services by the Company pursuant to paragraph 21.2(d)-(e), we shall reimburse you for balance of the days remaining under your Account.
(b) If you are not satisfied with the Services you may cancel the Services at any time within the first 14 days of the Effective Date and receive a full refund. You must send us an email requesting cancellation within the 14 day period to the email address listed in paragraph 1. Any cancelation request after the 14 day period will not receive a refund. Refunds can only be made to the payment method used to purchase or Services.
23. USAGE RESTRICTIONS
Use of Platform is limited to users aged 18 years or older and capable of forming a binding contract.
PLEASE READ THIS SECTION CAREFULLY. IT CONTAINS A MANDATORY ARBITRATION PROVISION AND THEREFORE AFFECTS YOUR RIGHTS AND GOVERNS HOW CLAIMS YOU AND THE COMPANY HAVE AGAINST EACH OTHER ARE RESOLVED.
Subject to applicable law, the parties agree that any disputes or claims between us relating in any way to, or arising out of, this or previous versions of these Terms, your use of or access to the Services, or any breach, enforcement, or termination of our Services will be resolved in accordance with the provisions set forth in this section.
Arbitration dispute resolution. Should a dispute or claim arise between us, you and the Company agree to notify the other party of the nature of the dispute or claim prior to initiating arbitration, and the parties will attempt to negotiate an informal resolution to it first. We will contact you at the email address you have provided to us; you can contact us by email at the email address listed in paragraph 1. Pease provide your name, phone number, email, mailing address, and briefly describe both the nature of your dispute and the relief you would like from the Company. If the parties are unable to resolve the claims described in the notice within 45 days after the notice is sent, then the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with either FairClaims or the American Arbitration Association (“AAA”) as set forth below, pursuant to the FairClaims Rules or AAA’s Consumer Arbitration Rules, as appropriate. A form for initiating arbitration proceedings is available on the FairClaims website or AAA’s website. (AAA provides a Demand for Arbitration form.) Any settlement offer made by you or the Company shall not be disclosed to the arbitrator.
Applicable Law and Period of Time to File Claim. The below agreement to arbitrate evidences a transaction involving interstate commerce and is therefore governed by the Federal Arbitration Act and the applicable procedural rules of FairClaims or AAA, as applicable (see “Arbitration procedures” below). To the extent state law is applicable to the Agreement to Arbitrate, the Parties agree that the substantive law of the state of Delaware will apply, without regard to its conflict of law provisions. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS, THE PLATFORM OR OUR SERVICES MUST BE FILED OR SUBMITTED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.
Agreement to Arbitrate. The parties each agree that any and all disputes, claims, or controversies that have arisen or may arise at any time between you and the Company (including its respective subsidiaries, employees, officers, directors, agents, any third-party insurance brokers, and third-party claims administrators) will be resolved by binding arbitration according to the procedure set forth below. For the purpose of this agreement to arbitrate, “disputes,” “claims,” and “controversies” shall have the broadest possible meaning that will be enforced and includes, any and all disputes and/or claims that arise out of or in any way relate to your relationship with the Company, including but not limited to: (1) your use of the Services, (2) these Terms and/or this agreement to arbitrate, including the interpretation, validity, enforceability, or scope of this agreement to arbitrate, or (3) your use of, or access to the Services. Through this agreement to arbitrate, and subject to the below exceptions, the parties intend to arbitrate all disputes or claims regardless of whether they are based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory and regardless of whether they arose or accrued before the parties entered into this agreement to arbitrate. For avoidance of doubt, the parties expressly agree that this agreement to arbitrate encompasses all disputes or claims pertaining to the validity, enforceability, or scope of this agreement to arbitrate and any such disputes or claims will be referred to binding arbitration and will be resolved by the arbitrator and not a court.
Exceptions to Agreement to Arbitrate The only exceptions to this agreement to arbitrate are as follows:
- Disputes or claims that can be brought in small claims court.
- Injunctive or equitable relief to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. However, the parties agree that any court proceedings shall be stayed pending the final resolution in arbitration of any arbitrable claims or issues.
- Any cause of action or claim for relief which cannot be arbitrated as a matter of applicable statute or public policy. However, the parties agree that any such court proceedings shall be stayed pending the final resolution in arbitration of any arbitrable claims or issues
- Any remedy of public injunctive relief (i.e., injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the general public). However, the parties agree that any such court proceedings shall be stayed pending the final resolution in arbitration of arbitrable claims, causes of action, or issues.
Arbitration procedures. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. An arbitrator can award the same damages and relief on an individual basis that a court can award to an individual.
The arbitration will be conducted by FairClaims in accordance with its Arbitration Rules and Procedures effective at the time a claim is made. Where the relief sought is $25,000 or less (not including attorneys’ fees and expenses), those Arbitration Rules and Procedures may limit the proceeding to a written submission and, if requested or at the arbitrator’s discretion, there may be a live hearing by teleconference or videoconference. Where the relief sought is $25,001 or more (not including attorneys’ fees and expenses), those Arbitration Rules and Procedures may provide for limited discovery and streamlined proceedings. In the event FairClaims declines to or is unable to adjudicate the claim, the arbitration will be conducted by the AAA under its Commercial Arbitration Rules, as modified by this Agreement to Arbitrate.
In all cases in which a live hearing is requested or required, you and/or the Company may attend by video or phone. To the extent a location must be established for the arbitration, it shall be held in the California and in the county of Alameda or at another mutually agreed location.
The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Company Users but is bound by rulings in prior arbitrations involving the same Company User to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Where permitted, the parties agree that all communications, evidence, and rulings in the arbitration will remain confidential, except as reasonably necessary to enforce or implement such rulings or this agreement to arbitrate.
Costs of arbitration. You and the Company will each pay its own arbitration fees consistent with the rules set by FairClaims (or AAA, as applicable) at the time the claim was made, unless otherwise stated in these Terms. Any fees applicable to both parties will be split evenly between the parties.
Severability. With the exception of the provisions in the below section “Prohibition of class and representative actions and non-individualized relief,” if an arbitrator or court decides that any part of the agreement to arbitrate is invalid or unenforceable, the other parts of the agreement to arbitrate shall still apply. If an arbitrator or court decides that any of the provisions in the section “Prohibition of class and representative actions and non-individualized relief” is invalid or unenforceable, then the entirety of the Agreement to Arbitrate shall be null and void. The remainder of these Terms, and dispute resolution section will continue to apply.
Right to opt-out of arbitration; procedure. IF YOU ARE A NEW USER, YOU CAN CHOOSE TO OPT-OUT OF THE AGREEMENT TO ARBITRATE BY EMAILING US AN OPT-OUT NOTICE TO THE EMAIL ADDRESS LISTED IN PARAGRAPH 1 (“OPT-OUT NOTICE”). THE OPT-OUT NOTICE MUST BE RECEIVED WITHIN 30 DAYS AFTER THE DATE YOU ACCEPT THESE TERMS. In order to opt-out, you must email your full name, address (including street address, city, state, and zip/postal code), and email address(es) associated with your Account. This procedure is the only way you can opt out of the agreement to arbitrate. If you opt out of the agreement to arbitrate, all other provisions of the Agreement will continue to apply to you, including the below forum selection clause specifying Delaware.
Future amendments to the Agreement to Arbitrate. Notwithstanding any provision in these Terms to the contrary, the parties agree that if the Company makes any amendment to the agreement to arbitrate in the future, that amendment shall not apply to any claim that you filed against the Company prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the agreement to arbitrate that have arisen or may arise between the parties. If you do not agree to the amended terms, you may cancel our Services; provided that the parties will arbitrate any dispute in accordance with the provisions of the agreement to arbitrate as of the date you last accepted these Terms (or accepted any subsequent changes to these Terms). Once you have submitted a valid Opt-Out Notice to the Company, you do NOT need to submit another one when these Terms are subsequently updated. Your first Opt-Out Notice will serve as a valid as to future versions of these Terms.
Judicial forum for legal disputes not subject to arbitration. Unless the parties agree otherwise, in the event that the agreement to arbitrate is found not to apply to you or to a particular claim or dispute, whether (1) as a result of your decision to opt out of the Agreement to Arbitrate, (2) as a result of a decision by the arbitrator or a court order, or (3) if one of the above exceptions to the Agreement to Arbitrate applies, you agree that any claim or dispute that has arisen or may arise between the Parties will be resolved exclusively by a state, federal, or small claims court located in Dublin, California. The parties agree to submit to the personal jurisdiction of a state court located in or near Dublin, California or a United States District Court located in northern California. The parties agree that the substantive law of the state of Delaware will apply to any such claim or dispute without regard to conflict of law provisions.
Prohibition of class and representative actions and non-individualized relief. THE PARTIES AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, WHETHER IN COURT OR ARBITRATION. UNLESS THE PARTIES AGREE OTHERWISE, THE COURT OR ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE COURT OR ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS, SUBJECT TO THE ABOVE EXCEPTION ALLOWING PUBLIC INJUNCTIVE RELIEF TO BE SOUGHT IN COURT BUT ONLY IF THAT EXCEPTION IS FOUND TO APPLY.
24.1. Even if we delay in enforcing this contract, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these Terms, or if we delay in taking steps against you in respect of your breaking this contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.
24.2. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the relevant provision shall be deemed modified to the minimum extent necessary to make it valid, and the invalidity of such provision will not affect the validity of the remaining provisions of these Terms which will remain in full force and effect.
24.3. Without prejudice to any other rights or remedies that we may have, you acknowledge and agree that damages alone would not be an adequate remedy for any breach of these Terms by you. Accordingly, we shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of these Terms.
24.4 These Terms constitute the entire agreement between the parties and supersedes any other communications, whether written, oral, electronic or otherwise, with respect to the subject matter of these Terms. These Terms may not be amended, modified or waived orally, but only if done so in writing. Any changes to these Terms will be effective from and after the date that the same are delivered to you by e-mail or regular mail.
24.5 Nothing contained in these Terms or your use of the Platform or our Services shall be construed to constitute either party as a partner, joint venturer, employee or agent of the other, nor shall either party hold itself out as such. Neither party has any right or authority to incur, assume or create, in writing or otherwise, any warranty, liability or other obligation of any kind, express or implied, in the name of or on behalf of the other party, it being intended by both parties that each shall remain independent contractors responsible for its own actions.