Under Paragraph 12 below, any disputes or claims related to this Agreement will be resolved by arbitration to the extent permitted by law. The Agreement contains a waiver of any rights to sue in court, including through a class action. You may opt-out of these provisions by following the instructions in Paragraph 12.
1. AGE RESTRICTION
The Sites are intended for persons who are at least 18 or older and are of legal age to form a binding agreement. If you are under 18, or not of age to form a legally binding agreement, you may not access or use the Sites without your parent or guardian’s consent and such parent or guardian will remain responsible for your and their compliance with this Agreement.
With respect to the Sites and related software, source code, platforms, servers and interfaces, whether owned by us or third parties (collectively, “System”), you must not: (a) copy, redistribute, publish, reverse engineer, decompile, disassemble, modify, alter, revise, translate, creative derivative works, or make any unauthorized attempt to access or use; (b) sell, assign, sublicense, transfer, distribute, lease, rent or grant a security interest; (c) reproduce, duplicate, copy, sell, resell, or exploit for commercial purposes; or (d) access or use in a manner prohibited by applicable laws, directives, or regulations or this Agreement.
All content and other materials available at or through the Sites, including without limitation publications, articles, trademarks, service marks, trade names, images, audio, text, videos, software, designs and the “look and feel” of the Sites (collectively, “Content”) are owned or licensed by us and/or our affiliates and are protected by copyright, trademark, and other intellectual property laws. You may access Content only for your own informational and non-commercial purposes, provided that you comply with the terms of this Agreement with respect to such Content. Nothing herein creates a license for you to use Content in any other manner. The Content may not be up-to-date at all times and does not constitute legal advice. You may not use any Content for commercial purposes or reproduce, republish, distribute, display, perform, modify, transmit, or sell Content without our express written permission. If you would like to seek permission to publish Content, please send your request to [email protected]. Notwithstanding the foregoing, we may permit you to share Content with others or on social media using a “share” button or other feature on the Sites but you may share such Content only for informational, non-commercial purposes. Without limiting any other disclaimers herein, we expressly disclaim any liability or responsibility arising out of actions or inactions you or others take based on the Content. All rights not expressly granted to you in this Agreement are reserved by us and/or our licensors.
5. DISCLAIMER REGARDING LEGAL SERVICES
Your use of the Sites is subject to the Disclaimer. The Content is provided for informational purposes and is not, and should not be relied upon for, legal advice. Your use of the Sites does not create an attorney-client relationship between us and you. An attorney-client relationship will not be formed unless and until we enter into a separate written engagement letter agreement with you. Your communications with us through the Sites, email or otherwise prior to entering into an engagement agreement with us does not create an attorney-client relationship, will not preclude us from representing any other person or entity in any matter, and will not require us to keep the information you provide confidential. Unless you have entered into a separate written engagement letter agreement with us, do not send us confidential or sensitive information.
We do not accept any unsolicited ideas including without limitation images, suggestions about promotion of the Sites, additions to our services, or changes in methods of doing business. If, notwithstanding this policy, you send us any ideas, suggestions, images, drawings, graphics, innovations, concepts, recommendations, or similar materials (“Submissions”), you agree that the Submissions are not confidential and we assume no obligation, expressed or implied, by considering them. You hereby assign such Submissions to us without compensation (or the expectation of compensation) and agree that we may disclose, reproduce, republish, modify, distribute, display, perform, transmit, sell, or otherwise use your Submissions for commercial or non-commercial purposes with no compensation to you. For any Submissions that cannot be legally assigned to us, you hereby grant us an unrestricted, perpetual, royalty-free, irrevocable and worldwide license to disclose, reproduce, republish, modify, distribute, display, perform, transmit, sell, or otherwise use your Submissions for commercial or non-commercial purposes in any manner and medium with no compensation to you.
7. PROHIBITED CONDUCT
You agree to abide by all applicable laws and not to (a) upload, transmit, post, email, or otherwise make available to the System any material in any format that (i) is false, inaccurate, misleading, fraudulent, unlawful, harmful, threatening, tortious, defamatory, vulgar, invasive of another’s privacy, or libelous; (ii) infringes any third party’s intellectual property or other proprietary right or rights of publicity or privacy; or (iii) contains viruses, worms, Trojan horses, time bombs, corrupted files, or any other software or programs designed to interrupt, interfere, intercept, expropriate, destroy or limit the functionality of the System or any computer software or hardware or equipment associated with the System; (b) alter, remove, obscure or falsify any attributions, trademark, copyright or other proprietary designations of origin or source of the System or Content; (c) impersonate any person or entity; (d) attempt, through any means, to gain unauthorized access to the System or Content in a way not intended by us or for any unlawful purpose, or another person’s account or information on or through the System; (e) use any robot, scraper, spider, or any other automatic device or manual process to monitor or copy the System or any Content unless we have authorized such use; (f) take any action that imposes an unreasonable or disproportionately large load on the System; (g) take any action that creates liability for us or causes us to lose any of the services of our business partners, vendors or suppliers; (h) take any action that would cause us to violate any applicable law, statute, ordinance or regulation, or that violates the Agreement; (i) attempt to tamper with, alter, disable, hinder, by-pass, override, or circumvent any security, reliability, integrity, restriction or requirement of the System; (j) interfere with or disrupt the integrity or performance of the System or the data contained therein; or (k) access the System or Content in order to build a competitive product or service, copy any features, functions or graphics of the System or Content or monitor the availability and/or functionality of the System or Content for any benchmarking or competitive purposes.
8. OTHER APPLICATIONS AND WEBSITES
YOU AGREE THAT USE OF THE SYSTEM AND CONTENT IS AT YOUR SOLE RISK. THE SYSTEM AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, TITLE, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR AT OR THROUGH THE SITES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE MAKE NO WARRANTY THAT THE SYSTEM AND CONTENT WILL BE ACCURATE, COMPLETE, CURRENT OR TIMELY, UNINTERRUPTED, SECURE, OR ERROR FREE. WE DO NOT WARRANT THAT THE SYSTEM AND CONTENT ARE FREE OF DEFECTS, VIRUSES, MALFUNCTIONS, OR HARMFUL COMPONENTS THAT COULD DAMAGE OR ALLOW UNAUTHORIZED ACCESS TO YOUR DATA.
10. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER WE NOR OUR AFFILIATES OR OUR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, CONTRACTORS OR REPRESENTATIVES (OR THEIR RESPECTIVE SUCCESSORS AND ASSIGNS) SHALL BE LIABLE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OR ATTEMPTED USE OR INABILITY TO USE THE SYSTEM OR CONTENT, INCLUDING WITHOUT LIMITATION LOST REVENUE, LOST OR STOLEN DATA, LOST OPPORTUNITIES, DAMAGED DEVICES OR OTHER INTANGIBLES, EVEN IF WE OR YOU HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF ANY PART OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON OR IF WE ARE OTHERWISE FOUND TO BE LIABLE TO YOU IN ANY MANNER, THEN YOU AGREE THAT OUR TOTAL LIABILITY TO YOU FOR DAMAGES, REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED THE AMOUNT YOU PAID, IF ANY, TO ACCESS THE SYSTEM AND CONTENT, IN THE AGGREGATE FOR ALL CLAIMS. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. THEREFORE, THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
You agree to indemnify, hold harmless, and release us and our affiliates and our respective officers, directors, shareholders, employees, agents, contractors, and representatives (and their respective successors and assigns) from and against any and all claims, demands, liabilities, damages, costs and expenses, including, but not limited to, attorneys’ fees and costs, arising from or related to: (i) your access, use, attempted use, inability to use or misuse of the System or Content; (ii) your violation of any of terms of this Agreement or any applicable law; (iii) your violation of any third party right, including without limitation any copyright, property or privacy right; and (iv) any claim that your use of the System or Content caused damage to a third party.
12. ARBITRATION AND DISPUTES
Any dispute, claim, or controversy arising out of or relating to this Agreement, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by individual arbitration in Boston, Massachusetts before a single neutral arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Any appeal shall be heard and decided by a panel of three neutral arbitrators. All arbitrators shall be retired judges or justices of any Massachusetts state or federal court, and shall in their substantive rulings (as opposed to procedural or discovery-related rulings that are otherwise governed by the JAMS Comprehensive Arbitration Rules and Procedures), apply the laws of the Commonwealth of Massachusetts without giving effect to any choice or conflict of law provision or rules that would cause the application of the laws of any jurisdiction other than the Commonwealth of Massachusetts. The award of the arbitrator(s) shall be binding and final on all parties. The arbitrator(s) shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator(s) determine a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator(s) may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. Judgment on the award rendered may be entered in any court having jurisdiction. The arbitrators may not award any punitive, incidental, indirect, special, or consequential damages, including, but not limited to, damages for lost profits.
Any dispute resolution proceeding arising out of or relating to this Agreement, including without limitation arbitration, will be conducted only on an individual basis and not in a class or representative action on behalf of others. There is no right for any dispute hereunder to be brought or heard as a class arbitration, class action, or private attorney general action or for the consolidation of arbitrations.
For any matters which are not subject to arbitration as set forth in this Agreement, you hereby expressly consent to exclusive jurisdiction and venue in the courts located in Boston, Massachusetts, which shall apply the laws of the Commonwealth of Massachusetts without giving effect to any choice or conflict of law provision or rules that would cause the application of the laws of any jurisdiction other than the Commonwealth of Massachusetts.
To the extent permitted by applicable law, any claims asserted by you in connection with the System and Content must be asserted in writing to us within one (1) year of the date such claim first arose, or such claim is forever waived by you.
You may opt-out of and not be bound by the arbitration and class action waivers set forth above by sending written notice to [email protected] within 30 days of the date you first access the Sites. If you timely opt-out, we will also not be bound by these provisions. If you do not timely opt-out, these provisions will apply to you and us.
You agree that we may send to you in electronic form any notices or other communications regarding the Sites and such electronic form will satisfy any legal requirements with respect to communications or notice.
The Sites are controlled and operated by us from our offices in the United States. We make no representation that that the Sites are available in, appropriate for or comply with laws outside the United States. If you access the Sites outside the United States, you do so at your own risk and are responsible for complying with your local laws and regulations; provided, however, that you agree that your access to the Sites does not subject us to any laws, regulations or jurisdictions of any area outside the United States.
If any part of this Agreement shall be held or declared to be invalid or unenforceable for any reason by any court of competent jurisdiction, such provision shall be ineffective but shall not affect any other part of this Agreement, and in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
Our failure to partially or fully exercise any rights or our waiver of any breach of this Agreement shall not prevent our subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of this Agreement. Our rights and remedies under this Agreement and any other applicable agreement between us and you shall be cumulative, and the exercise of any such right or remedy shall not limit our right to exercise any other right or remedy.
We may at any time, without notice and for any reason in our sole discretion, modify or discontinue the Sites, delete Content, or terminate or restrict your access to the Sites. In addition, this Agreement may be changed at any time. We will notify you of such changes by posting them on the Sites. You should check the Sites for such changes frequently. Your continued access of the Sites after such changes have been posted conclusively demonstrates your acceptance of those changes.
Questions regarding this Agreement should be directed to:
Director of Risk Management and Legal Compliance
Fish and Richardson P.C.
500 Arguello Street, Suite 400
Redwood City, CA 94063
Effective Date: November 12, 2020