Looper
Social Health Innovations, Inc.
TERMS OF SERVICE
Social Health Innovations, Inc. provides the “Looper” mobile application
that allows people to track their experiences by ranking them on a scale from 1
to 10, and share their answers with others.
The Service does not
include the provision of medical care, mental health services or other
professional services.
USE OF THE SERVICES
IS NOT FOR EMERGENCIES. IF YOU THINK YOU HAVE A MEDICAL OR MENTAL HEALTH
EMERGENCY, CALL YOUR LOCAL EMERGENCY PROVIDER (CLICK HERE TO FIND A LIST) OR GO TO THE NEAREST OPEN CLINIC OR EMERGENCY
ROOM.
1.1
The
following terms are used regularly throughout these Terms of Service and have a
particular meaning:
(a)
Agreement
means these Terms of Service.
(b)
Business Day means a day (other than a Saturday, Sunday
or public holiday) on which banks are open for general banking business.
(c)
Company means Social Health Innovations, Inc., a
Delaware corporation.
(d)
Confidential Information
has the meaning given to it under clause 6.10.
(e)
EHR (Electronic Health Record) means the record of an Individual’s
Health Information in the Platform.
(f)
Follower
means a User that is authorized by a Looper to connect their account with a
Looper’s account and access the information supplied by the Looper via the
Platform.
(g)
Health Information
means information about the health (including mental heath), injury or a
disability of an Individual at any time.
(h)
Individual
means an individual with an EHR about them in the Platform.
(i)
Intellectual Property
means all copyright, patents, inventions, trade secrets, know-how, product
formulations, designs, circuit layouts, databases, registered or unregistered
trademarks, brand names, business names, domain names and other forms of
intellectual property;
(j)
Looper
means a User that answers questions via the Platform.
(k)
Platform means
the “Looper” mobile application published by the Company that allows Loopers to
answer questions posed by the platform on a scale from 1 to 10, and share their
answers with Followers.
(l)
Privacy
Law means the
collective enactments and legislation governing privacy of personal information
as determined by, and subject to the Governing Law.
(m)
Privacy Policy
means the Company’s privacy policy as updated from time-to-time, which can be
found at http://www.bealooper.com
(n)
Subscription
Fee means the fee
charged for access to and use of the Platform.
(o)
User
means any registered User of the Platform, including Followers.
(p)
User Content
means all information, data, code, images, video files, audio files, documents
and other such materials that belong to a User, but does not include derivative
data (such as analytics).
(q)
Tax
Invoice means an
invoice that may be used for tax purposes in accordance with the Governing Law.
2
USING The
PLATFORM
(a)
To use the Platform, the User must:
i
Download the Platform to their device;
ii
Register for an account within the Platform by
providing all requested information.
(b)
The Company may not support all devices and the
Company is not liable to a User who cannot access the Platform on an
unsupported device.
(c)
The Company may in its discretion require a User to
verify their identity before granting further access to the Platform.
2.2
Children’s
Online Privacy Act. The Children’s Online Privacy Protection Act (“COPPA”)
requires that online service providers obtain parental consent before they
knowingly collect personally identifiable information online from children who
are under 13. We do not knowingly collect or solicit personally identifiable
information from children under 13; if you are a child under 13, please do not
attempt to register for the Services or send any personal information about
yourself to us. If we learn we have collected personal information from a child
under 13, we will delete that information as quickly as possible and terminate
the associated account. If you believe that a child under 13 may have provided
us personal information, please contact us at support@bealooper.com.
2.3
Features
(a)
The Platform shall enable a Looper to:
i
Answer questions by ranking on a scale from 1 to
10, about how they are tracking, and refine their answers relative to different
aspects of their experience (e.g. Anxiety, Friendships, Finance etc.);
ii
Receive notifications and reminders;
iii
Authorise Followers to view answers provided by the
Looper.
(b)
The Platform shall enable a Follower to:
i
Receive notifications and reminders; and
ii
View answers provided by the Looper.
(c)
The User agrees that
it shall only use the Platform for legal purposes and shall not use it to
engage any conduct that is unlawful, immoral, threatening, abusive or in a way
that is deemed unreasonable by the Company in its discretion.
3
NO MEdical Advice
3.1
While the Services
may provide access to certain general medical information the Services cannot
and are not intended to provide medical advice. We advise you to always seek
the advice of a physician or other qualified healthcare provider with any
questions regarding your personal health or medical conditions. Never disregard,
avoid, or delay in obtaining medical advice from your doctor or other qualified
healthcare provider because of something you have read on the Site. If you have
or suspect that you have a medical problem or condition, please contact a
qualified healthcare professional immediately.
3.2
You acknowledge
that although some of the Content that is provided to you on the Site,
(including information provided in direct response to your questions or
postings) may be provided by individuals in the medical profession, the
provision of such information does not create a medical professional /patient
relationship, and does not constitute an opinion, medical advice, or diagnosis
or treatment of any particular condition, but is provided to assist you in
completing your self-help program.
3.3
NO LICENSED MEDICAL
PROFESSIONAL/PATIENT RELATIONSHIP IS CREATED BY USING INFORMATION AND/OR
SERVICES PROVIDED BY OR THROUGH THE USE OF THE SITE OR THROUGH ANY OTHER
COMMUNICATIONS FROM US. THE CONTENT OF THE SITE AND THE SERVICES ARE NOT AND
SHOULD NOT BE CONSIDERED MEDICAL ADVICE OR A SUBSTITUTE FOR INDIVIDUAL MEDICAL
ADVICE, DIAGNOSIS OR TREATMENT. DO NOT DISREGARD, AVOID OR DELAY OBTAINING
MEDICAL ADVICE FROM A QUALIFIED HEALTH CARE PROFESSIONAL BECAUSE OF SOMETHING
YOU MAY HAVE READ ON THE SITE. YOU SHOULD ALWAYS TALK TO YOUR MEDICAL
PROFESSIONALS FOR DIAGNOSIS AND TREATMENT. DO NOT USE THE SITE OR SERVICES
FOR EMERGENCY MEDICAL NEEDS. IF YOU EXPERIENCE A MEDICAL EMERGENCY, CALL YOUR
LOCAL EMERGENCY PROVIDER (CLICK HERE FOR A
LIST). YOUR USE OF
INFORMATION PROVIDED ON THE SITE IS SOLELY AT YOUR OWN RISK. NOTHING STATED OR
POSTED ON THE SITE OR AVAILABLE THROUGH ANY SERVICES IS INTENDED TO BE, AND MUST
NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE OR THE PROVISIION OF MEDICAL CARE.
3.4
Looper Terms. The Looper agrees and accepts that:
(a)
Where the Looper provides personal information
relative to a Follower (including contact details for the purposes of inviting
the person to become a Follower) the Looper warrants that they are authorized
to do so.
(b)
The Platform may send the Looper emails, text
messages, push notifications and other alerts on behalf of Followers connected
to the Looper’s account, and may connect the Follower directly via telephone
call;
(c)
All information about an individual is used and
controlled by the Looper, or Follower, not the Company.
3.5
Follower
Terms. The Follower agrees and warrants that:
(a)
It shall not disclose any information about a User to
any other person or party other than as authorized by the User;
(b)
It shall ensure all Personal Information it has
access to through its use of the Platform is kept and used in accordance with
applicable privacy laws in the jurisdiction;
(c)
It shall only use the Platform for its intended
purpose as set out in this Agreement.
(d)
The Looper may revoke the Follower’s access to the
Platform (including any feature or information within it) at any time, at the
Looper’s discretion.
(e)
By using the Platform, the Follower warrants that
he or she is the person authorized by the Looper to connect their account with
the Looper’s account.
3.6
Conduct. The
User acknowledges and accepts that:
(a)
The
Company accepts no responsibility for the conduct of any User of the Platform.
(b)
The
Company accepts no responsibility for any interaction between Users, whether
that interaction occurs via the Platform or not (including via a TPS or a
personal meeting).
(c)
The Company makes no warranty or representation as
to the accuracy of any information provided by any User.
(d)
The Company makes no warranty as to the character
or credentials of any User.
3.7
Lodging a Complaint.
(a)
If a
User believes that another User’s behaviour is threatening, discriminatory,
deliberately offensive, or breaches confidentiality or trust with another User,
the User may lodge a complaint to the Company via email at
support@bealooper.com
(b)
The
Company may suspend or delete the account of any User that the Platform
determines conducts itself inappropriately.
(c)
The
Company will advise the User of a suspended or deleted account of the decision
to do so, but is under no obligation to identify a complainant.
(d)
The
Company’s decision whether or not to suspend or remove a User account is at its
absolute discretion. The Company’s decision shall be final and not subject to
review.
3.8
Support
(a)
The
Company provides user support for the Platform via the email address
support@bealooper.com
(b)
The
Company shall endeavour to respond to all support requests within one Business
Day.
(c)
The
Company reserves the right to require the payment of reasonable fees for
non-standard support requests prior to the provision of such support.
3.9
Privacy
(a)
The
Company maintains the Privacy Policy in compliance with the provisions of the
Privacy Law for data that it collects about the User and other customers.
(b)
By
agreeing to this Agreement, the User also agree to the terms of the Privacy
Policy and consent to the Company handling its personal information in
accordance with the Privacy Policy.
(c)
The
Company website may use cookies (a small tracking code in your browser) to
improve a User’s experience while browsing, while also sending browsing
information back to the Company. The User may manage how it handles cookies in
its own browser settings.
4
account access
using third-party services
4.1
Registration & Login
(a)
The
User may be able to register for the Platform by using its account with certain
third party services (TPS) -
including, but not limited to, Facebook, Twitter and LinkedIn.
(b)
As part
of the functionality of the Platform the User may connect its profile with a
TPS by:
i
Providing
the User’s TPS login information to the Company through the Platform; or
ii
Allowing
the Company to access the User’s TPS in accordance with its terms &
conditions of service; and
(c)
When
connecting to the Platform using a TPS, the User warrants that it is not in
breach any of its terms & conditions of service.
4.2
Ongoing Availability
(a)
The
User agrees that access to the Platform may be unavailable if the TPS becomes
unavailable, and that the User may lose functionality or content that is shared
between the TPS and the Platform.
(b)
The
User may disconnect the connection between the Platform and the TPS at any
time.
(c)
the
Company has no relationship with any TPS and cannot guarantee the efficacy of
any TPS connection.
4.3
Data from TPS.
Where the User connects and/or registers its
profile using a TPS, the User authorizes the Company to use data from that TPS
to create the User’s profile on the Platform.
5
Paying for the
Platform
5.1
Fees
(a)
The primary
Fee to use the Platform (if any) shall be the Subscription Fee.
(b)
All
Fees will be charged in accordance with the prices advertised on the Platform,
or as otherwise agreed between the Company and the User.
5.2
Currency.
All Fees
are quoted in US dollars, however transactions may be processed in an
equivalent foreign currency (such as Euros or British pounds).
5.3
Refunds.
The Company shall only provide a pro-rata
refund to a User if:
(a)
The
Company terminates this Agreement without cause;
(b)
The
Agreement is terminated as the result of a breach by the Company; or
(c)
As
otherwise required by law.
(a)
If the
User does not pay the full Fees as required, the Company may suspend access to
the Platform for that
Account.
(b)
If Fees
are not brought out of arrears within 28 days of becoming overdue, the Company
may terminate the User’s Account in the Platform
without notice and end this Agreement.
(c)
The
User agrees that the Company shall not be responsible or liable in any way for:
i
Interruptions
to the availability of the Platform in the event of (a);
ii
Loss of
User Content in the event of (b).
6
General
conditions
6.1
License
(a)
By
accepting the terms and conditions of this Agreement, the User is granted a
limited, non-exclusive and revocable license to access and use the Platform for
the duration of this Agreement, in accordance with the terms and conditions of
this Agreement.
(b)
The
Company may issue the license to the User on the further terms or limitations
(including the number of users or volume of use or transactions) as it sees
fit.
(c)
The
Company may revoke or suspend the User’s license(s) in its absolute discretion
for any reason that it sees fit, including for breach of the terms and
conditions in this Agreement by the User or any of its users.
6.2
Modification of Terms
(a)
The
terms of this Agreement may be updated by the Company from time-to-time.
(b)
Where
the Company modifies the terms, it will provide the User with written notice,
and the User will be required to accept the modified terms in order to continue
using the Platform.
6.3
Use & Availability
(a)
The
User is solely responsible for the security of its username and password for
access to the Platform. The User shall notify the Company as soon as it becomes
aware of any unauthorized access of its the Platform account.
(b)
The
User agrees that the Company shall provide access to the Platform to the best
of its abilities, however:
i
Access
to the Platform may be prevented by issues outside of its control; and
ii
It
accepts no responsibility for ongoing access to the Platform.
(a)
The
Company agrees to treat all User Content as Confidential Information under this
Agreement (including EHRs), however the Customer agrees that the Company is not
responsible for the maintaining the confidentiality of any User Content by
Users.
(b)
The
Company accepts no liability for the content of User Content.
(c)
Each
User is responsible for the accuracy, quality and legality of any content
uploaded by the User, and the User’s acquisition of it, and the users that
create, access and/or use User Content.
(d)
The
Company shall not access, use, modify or otherwise deal with User Content
except where required by compulsion of law or upon the User’s authority (such
as to provide support for the Platform).
(e)
The Company shall not grant a User access to an EHR
without the consent of the User to whom the EHR relates.
6.5
Data
(a)
Security. The Company takes the security of the
Platform and the privacy of its Users very seriously. The User agrees that the User shall not
do anything to prejudice the security or privacy of the Company’s systems or
the information on them.
(b)
Transmission. The Company shall do all things
reasonable to ensure that the transmission of data occurs according to accepted
industry standards. It is up to the
User to ensure that any transmission standards meet the User’s operating and
legal requirements.
(c)
Storage.
Data that is stored by the Company shall be stored according to accepted industry
standards.
(d)
Backup. The Company shall perform backups of its
entire systems in as reasonable manner at such times and intervals as is
reasonable for its business purposes.
The Company does not warrant that it is able to backup or recover specific
User Content from any period of time unless so stated in writing by the
Company.
6.6
Intellectual Property
(a)
Trademarks.
The Company has moral & registered rights in its trade marks and the
User shall not copy, alter, use or otherwise deal in the marks without the
prior written consent of the Company.
(b)
Proprietary Information.
The Company may use software and other proprietary systems and
Intellectual Property for which the Company has appropriate authority to use,
and the User agrees that such is protected by copyright, trademarks, patents,
proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not
infringe on any third-party rights through the use of the Platform (U.S.
Copyright Act of 1976, Title 17 U.S.C).
(c)
The Platform. The User agrees and accepts that the
Platform is the Intellectual Property of the Company and the User further
warrants that by using the Platform the User will not:
i
Copy
the Platform or the services that it provides for the User’s own commercial
purposes; and
ii
Directly
or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain,
modify or use any source or object code, architecture, algorithms contained in
the Platform or any documentation associated with it.
(d)
Content. All content (with the exception of User
Content) remains the Intellectual Property of the Company, including (without
limitation) any source code, analytics, insights, aggregations, ideas,
enhancements, feature requests, suggestions or other information provided by
the User or any other party with respect to the Platform.
6.7
Disclaimer of Third Party Services &
Information
(a)
The
User acknowledges that the Platform has dependencies on third-party services,
including but not limited to:
i
Telecommunications
services;
ii
Hosting
services;
iii
Email
services; and
iv
Analytics
services.
(b)
The
User agrees that the Company shall not be responsible or liable in any way for:
i
Interruptions
to the availability of the Platform due to third-party services; or
ii
Information
contained on any linked third party website.
6.8
Governing Law and Jurisdiction
(a)
These
Terms, as well as the respective rights and obligations hereunder, shall be
governed by and construed and enforced in accordance with the laws of the State
of Delaware without regard to conflict of laws principles. Please note that use
of the Platform by any User may be subject to other local, state, national, and
international laws.
(b)
Each
Party expressly:
i
Agrees
that exclusive jurisdiction for resolving any claim or dispute with Company relating
in any way to use of the Platform resides in the state and federal courts of
the State of Delaware;
ii
Agrees
and consents to the exercise of personal jurisdiction in the state and federal
courts of the State of Delaware;
iii
Waives
any right to a jury trial in any legal proceeding against the Company; and
iv
Agrees
that any claim or cause of action with respect to use of the Platform must be
commenced within one (1) year after the claim arises.
(c)
If the
User is accepting these Terms on behalf of a United States federal government
entity that is legally unable to accept the controlling law, jurisdiction or
venue clauses above, then those clauses do not apply to that User. In this
event, these Terms and any action related thereto will be will be governed by
the laws of the United States of America (without reference to conflict of
laws) and, in the absence of federal law and to the extent permitted under
federal law, the laws of the State of Delaware (excluding choice of law).
6.9
Attorney’s Fees
The prevailing Party in an action to enforce
these Terms may recover from the other its reasonable attorneys’ fees and
costs, if employment of an attorney was necessary.
(a)
Confidential Information
means any written or verbal information that:
i
A party
informs the other party that it considers it confidential and/or proprietary;
ii
A party
would reasonably consider to be confidential in the circumstances; and
iii
Is
personal information within the meaning of the Privacy Law.
but does not include information that a
party can establish:
iv
Was in
the public domain at the time it was given to that party;
v
Became
part of the public domain, without that party’s involvement in any way, after
being given to the party;
vi
Was in
party's possession when it was given to the party, without having been acquired
(directly or indirectly) from the disclosing party; or
vii
Was
received from another person who had the unrestricted legal right to disclose
that information free from any confidentiality obligation.
(b)
The
Company agrees to keep all User Content in the strictest confidence, and to the
extent User Content is accessed and/or received by the Company it shall be
deemed as Confidential Information for the purposes of this Agreement.
(c)
Each
party acknowledges and agrees that:
i
the
Confidential Information is secret, confidential and valuable to the disclosing
party (Discloser);
ii
it owes
an obligation of confidence to the Discloser concerning the Confidential
Information;
iii
it must
not disclose the Confidential Information to a third party except as permitted
in this Agreement;
iv
all
Intellectual Property rights remain vested in the Discloser but disclosure of
Confidential Information does not in any way transfer or assign any rights or
interests in the Intellectual Property to the receiving party; and
v
any breach
or threatened breach by the receiving party of an obligation under this
Agreement may cause the Discloser immediate and irreparable harm for which
damages alone may not be an adequate remedy. Consequently the Discloser has the
right, in addition to other remedies available at law or in equity, to seek
injunctive relief against the receiving party (and its agents, assigns,
employees, officers and directors, personally) or to compel specific
performance of this clause.
(d)
A party
must notify the Discloser in writing, giving full details known to it
immediately, when it becomes aware of:
i
any
actual, suspected, likely or threatened breach by it of any obligations it has
in relation to the Confidential Information.
ii
any
actual, suspected, likely or threatened breach by any person of any obligation
in relation to the Confidential Information; or
iii
any
actual, suspected, likely or threatened theft, loss, damage, or unauthorized
access, use or disclosure of or to any Confidential Information.
(e)
The receiving
party must promptly take all steps that the Discloser may reasonably require
and must co-operate with any investigation, litigation or other action of the
Discloser or of a related body corporate if there is:
i
any
actual, suspected, likely or threatened breach of a term of this Agreement; or
ii
any
theft, loss, damage or unauthorized access, use or disclosure of or to any
Confidential Information that is or was in its possession or control.
(f)
The
protection of all electronic communication is governed by the Electronic
Communications Privacy Act (18 U.S.C. §§ 2701-2711). In compliance with this Act the Company
makes the following notice: THE COMPANY CAN MAKE NO ABSOLUTE GUARANTY OF
CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON
THE SITE OR ANY WEBSITE LINKED TO THE SITE. THE COMPANY WILL THEREFORE NOT BE
LIABLE FOR THE PRIVACY OF E-MAIL ADDRESSES, REGISTRATION AND IDENTIFICATION
INFORMATION, DISK SPACE, COMMUNICATIONS, CONFIDENTIAL OR TRADE-SECRET
INFORMATION, OR ANY OTHER CONTENT STORED ON THE COMPANY’S EQUIPMENT,
TRANSMITTED OVER NETWORKS ACCESSED BY THE SITE, OR OTHERWISE CONNECTED WITH
USER’S USE OF THE SERVICE.
6.11
Liability &
Indemnity
(a)
The User agrees that it uses the Platform at its own
risk.
(b)
The User acknowledges that the Company is not
responsible for the conduct or activities of any User and that the Company is
not liable for such under any circumstances.
(c)
The User agrees to indemnify the Company for any
loss, damage, cost or expense that the Company may suffer or incur as a result
of or in connection with the User’s use of or conduct in connection with the
Platform, including any breach by the User of these Terms.
(d)
In no circumstances will the Platform be liable for
any direct, incidental, consequential or indirect damages, personal injury,
death, damage to property, loss of property, loss or corruption of data, loss
of profits, goodwill, bargain or opportunity, loss of anticipated savings or
any other similar or analogous loss resulting from the User’s access to, or use
of, or inability to use the Platform, whether based on warranty, contract,
tort, negligence, in equity or any other legal theory, and whether or not the
Company knew or should have known of the possibility of such damage, loss,
personal injury or death, or business interruption of any type, whether in
tort, contract or otherwise.
(e)
To the extent permitted by law, the Company’s
liability for breach of any implied warranty or condition that cannot be
excluded is restricted, at the Company’s option to:
i
The re-supply of services or payment of the cost of
re-supply of services; or
ii
The replacement or repair of goods or payment of the
cost of replacement or repair.
6.12
Termination
(a)
Either
party may terminate this Agreement by giving the other party written notice.
(b)
Termination
of this agreement is without prejudice to and does not affect the accrued
rights or remedies of any of the parties arising in any way out of this
agreement up to the date of expiry or termination.
(c)
Termination does not affect any of the rights
accrued by a party prior to termination, and he rights and obligations under clauses 6.6(d), and 6.13 survive termination of this Agreement.
6.13
Disputes
(a)
All
disputes shall be handled in accordance with the Company’s dispute resolution
policy.
i
Negotiation.
If there is a dispute between the parties relating to or arising out of
this Agreement, then within 5 Business Days of a party notifying the other
party of a dispute, senior representatives from each party must meet (or
discuss directly via the telephone or internet) and use all reasonable
endeavours acting in good faith to resolve the dispute by joint discussions;
ii
Mediation. If the dispute between the parties relating
to or arising out of this Agreement is not resolved within five Business Days
of notification of the dispute under Clause (a),
the parties must agree to submit the dispute to mediation, administered by
lawyers engaged in alternative dispute resolution;
iii
Arbitration. If the dispute between the parties
relating to or arising out of this Agreement is not settled by mediation under
clause ii either party may by written notice to the
other refer the dispute binding arbitration before a single arbitrator under
the rules of the American Arbitration Association (AAA) as in effect at such
time. Both parties agree that either party may, within 30 days after the filing
of a demand for Arbitration, demand that the parties' dispute first be
submitted to a neutral evaluator pursuant to the American Arbitration
Association's Early Neutral Evaluation Procedures prior to proceeding with
arbitration. Any resulting arbitration award may be enforced in any court
having valid jurisdiction, wherever located.
iv
Parties
to the arbitration shall each pay an equal share of the costs and expenses of
such arbitration, except as prohibited by law. Each party shall separately pay
for its respective attorneys’ fees and costs.
v
Class Action.
BOTH PARTIES AGREE NOT TO BRING OR PARTICIPATE IN A CLASS OR REPRESENTATIVE
ACTION, PRIVATE ATTORNEY GENERAL ACTION OR COLLECTIVE ARBITRATION, EVEN IF AAA
PROCEDURES OR RULES WOULD OTHERWISE ALLOW ONE. THE ARBITRATOR MAY AWARD RELIEF
ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT OF
THAT PARTY’S INDIVIDUAL CLAIM. BOTH PARTIES ALSO AGREE NOT TO SEEK TO COMBINE
ANY ACTION OR ARBITRATION WITH ANY OTHER ACTION OR ARBITRATION WITHOUT THE
CONSENT OF ALL PARTIES TO THIS AGREEMENT AND ALL OTHER ACTIONS OR ARBITRATIONS.
vi
If the
agreement in this Section not to bring or participate in a class or representative
action, private attorney general action or collective arbitration should be
found illegal or unenforceable, Both parties agree that it shall not be
severable, that this entire Section shall be unenforceable and any claim or
dispute would be resolved in court and not in collective arbitration.
vii
Court proceedings. A party may not commence court
proceedings in relation to a dispute relating to or arising out of these Terms,
unless the party seeks appropriate injunctive or other interlocutory relief to
preserve property or rights or to avoid losses that damages are inadequate to
compensate.
viii
Small Claims Court.
Notwithstanding this Section, any User has the right to litigate any dispute in
small claims court, if all the requirements of the small claims court,
including any limitations on jurisdiction and the amount at issue in the
dispute, are satisfied.
7
GENERal release
(california resident)
7.1
In the
event that you have a dispute with one or more other users, you release the Company,
its officers, employees, agents, and successors from claims, demands, and
damages of every kind or nature, known or unknown, suspected or unsuspected,
disclosed or undisclosed, arising out of or in any way related to such disputes
and/or our Services.
7.2
If you
are a California resident, you shall and hereby do waive California Civil Code
Section 1542, which says: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.”
7.3
Electronic Communication, Amendment &
Assignment
(a)
The
User can direct notices, enquiries, complaints and so forth to the Company as
set out in this Agreement. The
Company will notify the User of a change of details from time-to-time.
(b)
The
Company will send the User notices and other correspondence to the details that
the User submits to the Company, or that the User notifies the Company of from
time-to-time. It is the User’s responsibility to update its contact details as
they change.
(d)
Notices
must be sent to the parties’ most recent known contact details.
(e)
The
User may not assign or otherwise create an interest in this Agreement.
(f)
The
Company may assign or otherwise create an interest in its rights under this
Agreement by giving written notice to the User.
7.4
Disclaimers
Each
User acknowledges and agrees that:
(a)
The
Platform (including all content, function, Content and services) is provided "as is," without warranty of
any kind, either express or implied, including any warranty for information,
data, data processing services or uninterrupted access, any warranties
concerning the availability, accuracy, completeness, usefulness, or content of
information, and any warranties of title, non-infringement, merchantability or
fitness for a particular purpose.
(b)
Company
does not warrant that the Platform (or the function, content or services made
available thereby) will be timely, secure, uninterrupted or error free, or that
defects will be corrected. Company makes no warranty that the Platform will
meet User’s expectations or requirements. No advice, results or information, or
Content whether oral or written, obtained through the Platform shall create any
warranty not expressly made herein. If a User is dissatisfied with the
Platform, the sole remedy is to discontinue using the Platform.
7.5
Each
party acknowledges that it has not relied on any representation, warranty or
statement made by any other party, other than as set out in these Terms.
7.6
General
(a)
Special Conditions. The parties may agree to any Special Conditions to
this Agreement in writing.
(b)
Relationship. The relationship of the parties to this Agreement does not form a joint
venture or partnership.
(c)
Waiver. No clause of this Agreement
will be deemed waived and no breach excused unless such waiver or consent is
provided in writing.
(d)
Governing Law. This Agreement is
governed by the laws of the state described in clause 6.8.
Each of the parties hereby submits to the non-exclusive jurisdiction of
courts with jurisdiction there.
(e)
Severability.
Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the
invalidity or unenforceability without affecting the remaining clauses of this
Agreement.