EFFECTIVE DATE: November 1 2021
REVIEW THESE TERMS CAREFULLY. BY ACCESSING OR USING OUR PLATFORM (IN WHOLE OR IN PART), YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS AND/OR ARE NOT ELIGIBLE TO USE OUR PLATFORM PURSUANT TO ANY OF THE AGREEMENTS, YOU ARE NOT PERMITTED TO ACCESS OR USE OUR PLATFORM (IN WHOLE OR IN PART).
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN COURT OR JURY TRIALS OR CLASS ACTIONS AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. CAREFULLY REVIEW THE DISPUTE RESOLUTION SECTION OF THESE TERMS BEFORE YOU ACCESS OR USE OUR PLATFORM.
NO MEDICAL ADVICE
ANY INFORMATION AVAILABLE FROM US, WHETHER THROUGH OUR PLATFORM, OUR SERVICES, ANY PRODUCT DESCRIPTIONS, OR OTHERWISE IS FOR INFORMATIONAL PURPOSES ONLY. WE DO NOT, THROUGH OUR PLATFORM, SERVICES, PRODUCT DESCRIPTIONS OR OTHERWISE, OFFER ANY MEDICAL ADVICE. WE DO NOT INTEND FOR YOU TO, AND YOU SHOULD NOT, RELY ON ANY INFORMATION YOU OBTAIN FROM US IN ANY WAY AS A SUBSTITUTE FOR MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION, TREATMENT OPTIONS, OR OTHER MEDICAL RELATED ISSUES. NEVER DISREGARD, OR FOREGO, PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING MEDICAL ADVICE BECAUSE OF INFORMATION YOU OBTAINED FROM US IN ANY WAY.
IF YOU ARE HAVING A MEDICAL EMERGENCY CALL 911.
ACCEPTANCE AND APPLICABILITY OF AGREEMENTS
Acceptance of Agreements. By accessing or using our Platform you agree to be bound by these Terms, whether you access or use our Platform as a visitor (meaning that you browse our Platform without creating an account) or as a registered user (meaning that you have created an account with us). To use our Platform as a registered user, you must read and confirm that you accept these Terms and any other applicable Agreements.
Eligibility. Without limiting anything set forth in the Agreements, our Platform is solely intended for use by individuals at least 18 years old (or age of majority if higher in your place of residence).
Your Representations and Warranties. Without limiting anything set forth in the Agreements by accessing or using our Platform, you represent to us that: (1) you are 18 years of age or older (or age of majority or older if higher in your place of residence); (2) you are legally able to enter into contracts; (3) that you are not a person barred from receiving or using our Platform under federal, state, local or other laws; and (4) you have not previously been suspended or prohibited from using our Platform for any reason other than your cancellation of your account on our Platform.
Our Rights. We have the right, but not the obligation, to take any of the following actions in our sole discretion without providing any prior notice to you and without liability to you or any third party:
change or terminate all or any port of our Platform;
restrict or terminate your access to all or any part of our Platform;
refuse, move or remove anything that is available on our Platform; or
deny access to our Platform to anyone at any time in our sole and absolute discretion.
Conflicts. In the event of any conflict between these Terms and any other Agreement, unless otherwise specified in such other Agreement, these Terms shall control.
USE OF OUR PLATFORM
Acceptable Use. Your access to and use of our Platform must comply with the following (the “Acceptable Use Restrictions”):
You are only allowed to access and use our Platform for its intended purposes, as determined by us in our sole discretion.
Without limitation, you are not allowed to access or use our Platform to: (1) publish, post, distribute or disseminate any content which is or could reasonably be viewed as: (a) hate speech, obscene, harassing, threatening, pornographic, abusive or defamatory to an individual or group of individuals on the basis of religious belief, race, gender, age, disability or otherwise; (b) inciting violence, or containing nudity or graphic or gratuitous violence; (c) an unauthorized commercial communication of any kind (including, without limitation, spam); (d) fraudulent, inaccurate or misleading, or otherwise objectionable content of any kind; (e) infringing or violating someone else’s rights or otherwise violating the law; or (f) identifying any person without their consent or disclosing anyone else’s personal contact details or invading their privacy; (2) violate any laws; (3) transmit or upload any software or other materials that contain any viruses, worms, trojan horses, defects, time bombs or other items of a destructive nature; or (4) engage in commercial activity except as expressly permitted under the applicable Agreements.
You are also prohibited from: (1) reformatting or framing any portion of our Platform; (2) using any device, software, or procedure that interferes with, or attempts to interfere with, the normal operations of our Platform; (3) taking any action that imposes, or may impose, as determined by us in our sole discretion, an unreasonable or disproportionately large load on our information technology infrastructure; (4) modifying, adapting, translating, disassembling, decompiling, translating or reverse engineering any portion of our Platform or otherwise attempt to reconstruct or discover any source code or underlying ideas, algorithms, file formats or programming interoperability interfaces of our Platform; (5) disrupting or otherwise interfering with our Platform or the networks or servers we use; (6) impersonating any person or entity or misrepresenting your connection or affiliation with a person or entity; (7) collecting or storing, or attempting to collect or store, personal information about other users of our Platform, except as expressly permitted under the applicable Agreements; (8) engaging in any activity that is illegal under federal, state, local or other laws; (9) creating a false identity on our Platform; (10) creating an account on our Platform for anyone else (except when ,and only to the extent, you create one or more sub-accounts on our Platform for your employees or other representatives that are authorized to access or use our Platform on your behalf); (11) releasing to any third party information related to your access to or use of our Platform for purposes of monitoring our Platform’s availability, performance or functionality, or for any other benchmarking or competitive purposes without our prior written approval; (12) copying our Platform, except as expressly permitted in the applicable Agreements; (13) accessing or using our Platform in a service bureau or time-sharing environment (including, without limitation, accessing or using our Platform to provide third parties a service consisting solely of the collection and entry of data and other information on our Platform); (14) selling, assigning, transferring, sublicensing, pledging, renting or otherwise sharing your rights under the Agreements; (15) creating any derivative works based upon our Platform; and (16) modifying, obscuring or removing any product identification or proprietary notices on our Platform or copies thereof.
Companies and Other Legal Entities. If you are a company or other legal entity, the following provisions apply:
our Platform may only be accessed and used by you and your officers, employees and contractors you authorize to access and use our Platform on your behalf (“Authorized Users”);
without limiting anything provided in the applicable Agreements, you shall be responsible for the actions of your Authorized Users in connection with your obligations under these Terms, including, without limitation, any access or use of our Platform. You shall ensure that your Authorized Users: (1) do not breach these Terms; and (2) comply with all applicable laws in connection with their access to and use of our Platform; and
you acknowledge and agree that any breach of the applicable Agreements by your Authorized Users constitutes your breach of the applicable Agreements.
Access to our Platform. Access and use of our Platform requires access to the Internet. You are responsible for providing all equipment necessary to establish a connection to the Internet, access to the Internet, and any telephone, wireless, or other connection and service fees associated with such access. Using our Platform may allow you to receive content on your mobile phone or wireless device. The manner in which that content is delivered to your mobile phone or wireless device may cause you to incur extra data, text messaging, or other charges from your wireless carrier, which are your sole responsibility.
Compliance with Applicable Laws. You certify that you will comply with all applicable laws (e.g., federal, state, local, and other laws) and the applicable Agreements when accessing or using our Platform. Without limiting the foregoing, by accessing or using our Platform, you represent and warrant that: (1) 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 (2) you are not listed on any U.S. Government list of prohibited or restricted parties. If you access or use our Platform outside the United States, you are solely responsible for ensuring that your access to and use of our Platform in such country, territory, or jurisdiction does not violate any applicable laws. We reserve the right, but have no obligation, to, in our sole discretion, monitor where our Platform is accessed from, and the right, but not the obligation, to block or otherwise restrict access to our Platform, in whole or in part, from any geographic location.
Mistakes or Errors. Without limiting anything set forth in the applicable Agreements, you acknowledge and agree that under no circumstances will we or any of our licensors or suppliers be responsible for any loss, damage or liability arising out of any mistakes or other errors made by you as a result of your access to or use of our Platform.
PLATFORM OWNERSHIP AND LICENSE
Ownership. All right, title and interest in and to our Platform, including, but not limited to, all of the software and code that comprise and operate our Platform, and all of the text, photographs, illustrations, images, graphics, audio, video, URLs and other materials provided through our Platform are owned by us or third parties who have licensed their content to us. Our Platform is protected under trademark, service mark, trade dress, copyright, patent, trade secret and other intellectual property laws. In addition, the entire Platform is a collective work under U.S. and international copyright laws and treaties, and we own the copyright in the selection, coordination, arrangement and enhancement of our Platform.
Marks. The Impact Biosystems names and logos (including, but not limited to, those of its affiliates), all product and service names, all graphics, all button icons, and all trademarks, service marks, and logos appearing within our Platform, unless otherwise noted, are trademarks (whether registered or not), service marks, and/or trade dress of Impact Biosystems (collectively, “Our Marks”). All other trademarks, product names, company names, logos, service marks, and/or trade dress (collectively, “Other Marks”) mentioned, displayed, cited, or otherwise indicated within our Platform are the property of their respective owners. You are not authorized to display or use Our Marks in any manner without our prior written permission. You are not authorized to display or use any Other Marks that appear on our Platform without the prior written permission of the applicable third party.
Limited License. Subject to your acceptance of, and compliance with, the applicable Agreements, we hereby grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use our Platform in a manner that is consistent with the applicable Agreements and our Platform’s intended purpose(s). You obtain no rights in our Platform except to use it in accordance with the applicable Agreements. Without limiting the generality of the foregoing, you shall not access or use our Platform in violation of the terms set forth in any of the applicable Agreement, including, without limitation, the Acceptable Use Restrictions set forth in these Terms (collectively, “Prohibited Activities”). You will be solely liable for any damages, costs or expenses arising out of or in connection with your commission of any Prohibited Activity. You shall notify us immediately upon becoming aware of the commission by any person of a Prohibited Activity and shall provide us with reasonable assistance upon our request with any investigations we may conduct in connection with any such Prohibited Activity.
Registration Requirements. In addition to any applicable eligibility requirements, you are required to open an account or register with Impact Biosystems in order to use some of the features on our Platform. In connection with your account registration, you must provide true, accurate, current, and complete information about yourself as may be prompted in any registration form. If any information you previously provided to Impact Biosystems changes, you must promptly update the relevant information.
Account Security and Responsibility. You are responsible for maintaining the confidentiality of your password and account and are fully responsible for all activities that occur under your password and account. You agree to: (1) notify Impact Biosystems immediately of any unauthorized use of your account or any breach of security; and (2) ensure that you fully logout of your account at the end of each session. You must set up your account in your own name (except when, and only to the extent, you create one or more sub-accounts on our Platform for your Authorized Users). You further agree not to access or use anyone else’s account on our Platform. Impact Biosystems cannot and will not be liable for any loss or damage arising from your failure to comply with this provision or any of the applicable Agreements. If Impact Biosystems suspends or terminates your account, you acknowledge that all information and content associated with such account will no longer be available to you.
Additional Information Sharing. If you open an account, you understand that Impact Biosystems will collect and maintain information related to your access to and use of our Platform. Impact Biosystems connects, though may not always display, that information to your account in order to conduct our business operations.
Our Termination or Suspension of Your Account. Without limiting any other rights we have under the applicable Agreements, in the event we determine, in our sole discretion, that your account information may be compromised due to your personal device being infected with a virus, malware, other malicious code, or due to other theft of your account information, we reserve the right, but do not have the obligation, to invalidate, delete, or otherwise modify your account in order to protect your account, the accounts of other users, and our systems from further damage or exposure. This may include proactively changing your password. If we need to do this, we will make reasonable efforts to inform you of any modifications made via the email address listed on your account or other viable means of communication.
Cancellation. Subject to restrictions and other obligations set forth in the applicable Agreements, you may close your account by contacting us at email@example.com and following the instructions we provide. If you cancel your account, these Terms shall be terminated and your license to access and use our Platform shall immediately terminate and you must discontinue all access to and use of our Platform. Please note, in some circumstances, we may not permit you to close your account, including in situations where: (1) you are not permitted to close your account pursuant to the terms of an applicable Agreement; (2) you have an open dispute or claim; (3) if your account is subject to a hold; and/or (4) you are cancelling your account in an attempt to evade any investigation.
Abusive and Offensive Language. Abusive or offensive language will not be tolerated on our Platform, social media sites or with our personnel. You are not entitled to make untrue, malicious and/or damaging comments with regard to our operations in any media or forum.
Feedback. By submitting ideas, suggestions, documents, proposals, products, and/or technologies (“Ideas” or “Innovations”) to us in any way, you acknowledge and agree that: (1) your Ideas and/or Innovations do not contain confidential or proprietary information; (2) we are not under any obligation of confidentiality, express or implied, with respect to the Ideas and Innovations; (3) we shall be entitled to disclose (or choose not to disclose) such Ideas and Innovations for any purpose and in any way; (4) we may have something similar to the Ideas and Innovations already under consideration or in development; (5) your Ideas and Innovations which are not subject to a patent, automatically become our property without any obligation to you; and (6) you are not entitled to any compensation or reimbursement of any kind from us under any circumstances.
Right to Terminate. Subject to the terms set forth in the applicable Agreements, in addition to, and not in lieu of, any of our other rights set forth in these Terms, we reserve the right, with or without notice and in our sole discretion, to terminate these Terms, your account, and/or your ability to access or use our Platform for any reason, including, without limitation, for lack of use or if we believe that you have violated or acted inconsistently with the letter or spirit of these Terms, or in the case of any activity by you that may harm Impact Biosystems or other users, including, but not limited to, fraud, abuse of privileges, or misuse of our Platform. You agree that we will not be liable to you or any third party for any such termination.
Effects of Termination. If we exercise our termination rights available under the applicable Agreements, your license to access and use our Platform shall immediately terminate and you must discontinue all access to and use of our Platform affected by such termination.
Fraudulent Activity. If we suspect that you are engaging in any fraudulent, abusive, or illegal activity, we may refer such matters to appropriate law enforcement authorities.
Survival. The provisions of these Terms which by their nature are intended to survive the termination or cancellation of these Terms shall continue as valid and enforceable obligations notwithstanding any such termination or cancellation. Without limiting the foregoing, the provisions of these Terms regarding indemnity and limitations of liability shall survive the termination or cancellation of these Terms.
THIRD PARTY CONTENT
Our Platform may include links to other websites or services solely as a convenience to you. You acknowledge and agree that we are not responsible for the availability of such external sites or resources and that we do not endorse and are not responsible or liable for any such linked sites or other information, material, products or services contained on other linked sites or accessible through other linked sites. Furthermore, we make no express or implied warranties with regard to the information, material, products or services that are contained on or accessible through linked sites. Your access to and use of linked sites, including information, material, products and services on linked sites or available through linked sites is solely at your own risk.
Agreement to Indemnify. YOU AGREE THAT YOU WILL ONLY ACCESS AND USE OUR PLATFORM IN ACCORDANCE WITH THE APPLICABLE AGREEMENTS. YOU WILL COMPENSATE US IN FULL FOR ANY LOSSES OR COSTS (INCLUDING REASONABLE ATTORNEYS’ FEES) WHICH WE (OR ANY OF OUR SUBSIDIARIES OR AFFILIATED COMPANIES) INCUR ARISING FROM ANY BREACH BY YOU OF THESE TERMS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD US, OUR SUBSIDIARIES AND AFFILIATES AND OUR AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND OTHER REPRESENTATIVES (THE “RELEASED PARTIES”) HARMLESS FROM AND AGAINST ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEY’S FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF YOUR USE OF OUR PLATFORM, YOUR CONNECTION TO OUR PLATFORM, YOUR VIOLATION OF THE APPLICABLE AGREEMENTS, OR YOUR VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER PERSON OR ENTITY.
Additional Remedies. The Released Parties reserve the right to seek all remedies available at law and in equity for your violation of the applicable Agreements, including the right to block access from a particular Internet address to our Platform and report misuses to law enforcement.
Disclaimer of all Warranties
OUR PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND RELATING TO OUR PLATFORM (INCLUDING, BUT NOT LIMITED TO, ANY SOFTWARE COMPRISING ANY PORTION OF OUR PLATFORM), WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT OUR PLATFORM WILL BE WITHOUT ERROR OR INVULNERABLE TO VIRUSES, WORMS OR OTHER HARMFUL SOFTWARE OR HARDWARE.
YOU HEREBY ACKNOWLEDGE THAT OUR PLATFORM MAY NOT BE AVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING, BUT NOT LIMITED TO, PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, UNAUTHORIZED ACCESS, VIRUSES, DENIAL OF SERVICE OR OTHER ATTACKS, TECHNICAL FAILURE OF OUR PLATFORM AND/OR TELECOMMUNICATIONS INFRASTRUCTURE, OR DISRUPTION, AND THEREFORE WE EXPRESSLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY REGARDING THE USE AND/OR AVAILABILITY, ACCESSIBILITY, SECURITY, OR PERFORMANCE OF OUR PLATFORM CAUSED BY SUCH FACTORS.
WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AGAINST THE POSSIBILITY OF DELETION, MISDELIVERY, OR FAILURE TO STORE COMMUNICATIONS, PERSONALIZED SETTINGS, OR OTHER DATA, INCLUDING, WITHOUT LIMITATION, ANY INFORMATION YOU SUBMIT THROUGH OUR PLATFORM.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS OF WARRANTIES MAY NOT APPLY TO YOU.
Use of Platform at Your Sole Risk. YOUR ACCESS TO AND USE OF OUR PLATFORM, DOWNLOAD OF ANY SOFTWARE RELATING TO OUR PLATFORM, AND USE OF ANY INFORMATION WE MAY PROVIDE IN CONNECTION WITH YOUR ACCESS TO OR USE OF OUR PLATFORM IS AT YOUR SOLE OPTION, DISCRETION, AND RISK. WE SHALL NOT BE LIABLE FOR ANY MALFUNCTIONS OF THE SOFTWARE RELATING TO OUR PLATFORM, BUGS OR VIRUSES RESULTING IN LOST DATA OR ANY OTHER DAMAGE TO YOUR COMPUTER EQUIPMENT, MOBILE PHONE OR MOBILE DEVICE, OR SOFTWARE. FURTHERMORE, WE SHALL NOT BE LIABLE FOR ANY ATTEMPTS BY YOU TO ACCESS OR USE OUR PLATFORM BY METHODS, MEANS OR WAYS NOT INTENDED BY US. WE ARE NOT REQUIRED TO PROVIDE REDUNDANT OR BACKUP NETWORKS AND/OR SYSTEMS.
No Creation of Warranty. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN OBTAINED BY YOU FROM ANY OF THE RELEASED PARTIES THROUGH OR FROM OUR PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
Third Party Statements. WE DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR THE STATEMENTS, ADVICE OR OPINIONS MADE BY ANYONE OTHER THAN AUTHORIZED IMPACT BIOSYSTEMS SPOKESPERSONS. WE DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR ANY STATEMENTS, ADVICE OR OPINIONS PROVIDED BY ANY THIRD PARTIES, AND SUCH STATEMENTS, ADVICE OR OPINIONS DO NOT IN ANY WAY REFLECT THE STATEMENTS, ADVICE OR OPINIONS OF IMPACT BIOSYSTEMS.
LIMITATION OF LIABILITY
Maximum Liability. EXCEPT AS OTHERWISE SET FORTH IN THE APPLICABLE AGREEMENTS AND WITHOUT LIMITING ANYTHING SET FORTH IN THESE TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OUR ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO YOUR ACCESS TO AND USE OF OUR PLATFORM SHALL BE THE AMOUNT OF $100.
No Liability for Incidental Damages. IN NO EVENT WILL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR ACCESS TO OR USE OF OUR PLATFORM OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR ACCESS TO OR USE OF OUR PLATFORM.
Applicability of Limitations. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES OR JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Notice to California Residents. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, 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.”
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
Waiver of Rights. YOU AGREE THAT BY ACCESSING AND/OR USING OUR PLATFORM YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST THE RELEASED PARTIES ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT ASA PLAINTIFF OR CLASS-MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR COLLECTIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
Agreement to Arbitrate.
YOU AGREE THAT ANY AND ALL CLAIMS AND DISPUTES ARISING FROM OR RELATING IN ANY WAY TO THE SUBJECT MATTER OF THE APPLICABLE AGREEMENTS, YOUR ACCESS TO OR USE OF THEPLATFORM, OR YOUR DEALINGS WITH THE RELEASED PARTIES SHALL BE FINALLY SETTLED AND RESOLVED THROUGH BINDING INDIVIDUAL ARBITRATION AS DESCRIBED IN THIS SECTION.
THIS AGREEMENT TO ARBITRATE INVOLVES INTERSTATE COMMERCE, AND, THEREFORE, SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. 1-16 (“FAA”), AND NOT BY STATE LAW.
THIS AGREEMENT TO ARBITRATE IS INTENDED TO BE INTERPRETED BROADLY PURSUANT TO THE FAA.
THE ARBITRATION WILL BE GOVERNED BY THE COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), AS MODIFIED BY THIS SECTION.
THE ARBITRATION WILL BE CONDUCTED USING ONE ARBITRATOR WITH SUBSTANTIAL EXPERIENCE IN RESOLVING COMMERCIAL CONTRACT DISPUTES, WHO SHALL BE SELECTED FROM THE APPROPRIATE LIST OF ARBITRATORS IN ACCORDANCE WITH THE ARBITRATION RULES AND PROCEDURES OF ANY ARBITRATION ORGANIZATION OR ARBITRATOR THAT YOU AND THE RELEASED PARTIES AGREE UPON IN WRITING OR THAT IS APPOINTED PURSUANT TO SECTION 5 OF THE FAA.
FOR ANY CLAIM WHERE THE TOTAL AMOUNT OF THE AWARD SOUGHT IS $10,000 OR LESS, YOU MUST ABIDE BY THE FOLLOWING RULES: (1) THE ARBITRATION SHALL BE CONDUCTED SOLELY BASED ON TELEPHONE OR ONLINE APPEARANCES AND/OR WRITTEN SUBMISSIONS AND (2) THE ARBITRATION SHALL NOT INVOLVE ANY PERSONAL APPEARANCE BY THE PARTIES OR WITNESSES UNLESS OTHERWISE MUTUALLY AGREED BY THE PARTIES. IF THE CLAIM EXCEEDS $10,000, THE RIGHT TO A HEARING WILL BE DETERMINED BY THE AAA RULES, AND THE HEARING (IF ANY) MUST TAKE PLACE IN BOSTON, MASSACHUSETTS.
THE ARBITRATOR IS BOUND BY THE TERMS OF THIS AGREEMENT TO ARBITRATE. YOU ACKNOWLEDGE AND AGREE THAT, IN ANY ARBITRATION PROCEEDING, NO DEPOSITIONS WILL BE TAKEN, AND ALL OTHER FORMS OF DISCOVERY OF FACTS WILL BE LIMITED TO THOSE THINGS THAT THE ARBITRATOR DETERMINES, IN ITS SOLE DISCRETION, TO BE NECESSARY. FURTHER, IN ANY ARBITRATION PROCEEDING: (1) THERE SHALL BE NO AWARD OF PUNITIVE, EXEMPLARY,INCIDENTAL, CONSEQUENTIAL OR OTHER SPECIAL DAMAGES; (2) ALL DAMAGES, CLAIMS AND AWARDS WILL BE GOVERNED BY UTAH LAW; (3) THE PARTIES WILL CONDUCT THE ARBITRATION CONFIDENTIALLY AND EXPEDITIOUSLY AND WILL PAY THEIR OWN COSTS AND EXPENSES OF ARBITRATION, INCLUDING THEIR OWN ATTORNEY’S FEES. IF YOU PROVE THAT YOU ARE UNABLE TO AFFORD THE AAA FEE, YOU AGREE TO NOTIFY ALL PERSONS AGAINST WHOM YOU HAVE AN ARBITRABLE CLAIM AND GIVE SUCH PERSONS THE OPPORTUNITY, INDIVIDUALLY AND AS A GROUP,TO PAY SUCH FEE. THE PROCEEDING AND THE DECISION SHALL BE KEPT CONFIDENTIAL BY THE PARTIES.
THE ARBITRATOR MAY AWARD DECLARATORY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM.
THE ARBITRATOR’S RULING IS BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION, OR APPLICATION MAY BE MADE TO SUCH COURT FOR JUDICIAL ACCEPTANCE OF ANY AWARD AND AN ORDER OF ENFORCEMENT, AS THE CASE MAY BE.
EXCEPT IN THE EVENT YOU OPT OUT OF THIS AGREEMENT TO ARBITRATE IN ACCORDANCE WITH SECTION 12.5, THIS AGREEMENT TO ARBITRATE WILL SURVIVE TERMINATION OF YOUR ACCESS TOOR USE OF OUR PLATFORM AND YOUR RELATIONSHIP WITH THE RELEASED PARTIES.
Information About Arbitration. INFORMATION ON AAA AND HOW TO START ARBITRATION CAN BE FOUND AT WWW.ADR.ORG. THERE IS NO JUDGE OR JURY IN ARBITRATION. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT AND REVIEW BY A COURT IS LIMITED. YOU WILL NOT BE ABLE TO HAVE A COURT OR JURY TRIAL OR PARTICIPATE IN A CLASS ACTION OR CLASS ARBITRATION. YOU UNDERSTAND AND AGREE THAT BY AGREEING TO RESOLVE ANY DISPUTE THROUGH INDIVIDUAL ARBITRATION, YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL. ANY DISPUTE SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND NOT AS A CLASS ACTION, REPRESENTATIVE ACTION, CLASS ARBITRATION OR SIMILAR PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE THE CLAIMS OF MULTIPLE PARTIES.
Challenges to Validity of Agreement to Arbitrate. YOU AGREE THAT ALL CHALLENGES TO THE VALIDITY AND APPLICABILITY OF THIS AGREEMENT TO ARBITRATE (i.e., WHETHER A PARTICULAR CLAIM OR DISPUTE IS SUBJECT TO ARBITRATION) SHALL BE DETERMINED BY THE ARBITRATOR. NOTWITHSTANDING ANY PROVISION IN THE APPLICABLE AGREEMENTS TO THE CONTRARY, IF THE CLASS ACTION WAIVER ABOVE IS DEEMED INVALID OR UNENFORCEABLE, YOU AGREE THAT YOU SHALL NOT SEEK TO, AND WAIVE ANY RIGHT TO, ARBITRATE CLASS OR COLLECTIVE CLAIMS.
Opt-Out of Agreement to Arbitrate. IF YOU WISH TO OPT OUT OF THE AGREEMENT TO ARBITRATE,WITHIN 45 DAYS OF November 1, 2021 OR WHEN YOU FIRST ACCESS OR USE THE PLATFORM,WHICHEVER IS LATER, YOU MUST SEND US A LETTER STATING :”REQUEST TO OPT-OUT OF AGREEMENT TO ARBITRATE” TO:
Impact Biosystems, Inc.
5 Colebrook St
Boston, MA 02127
Venue for Litigation. IF THE AGREEMENT TO ARBITRATE IS FOUND UNENFORCEABLE OR TO NOT APPLY FOR A GIVEN DISPUTE, OR IF YOU OPT OUT OF THE AGREEMENT TO ARBITRATE IN ACCORDANCE WITH SECTION 12.5, THEN THE PROCEEDINGS MUST BE BROUGHT EXCLUSIVELY IN THE FEDERAL COURTS OF THE UNITED STATES ENCOMPASSING BOSTON, MASSACHUSETTS OR THE APPLICABLE STATE COURTS OF THE STATE OF MASSACHUSETTS ENCOMPASSING BOSTON, MASSACHUSETTS, AS APPROPRIATE, AND YOU AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF EACH OF THESE COURTS FOR THE PURPOSES OF LITIGATING SUCH CLAIMS OR DISPUTES, AND YOU STILL WAIVE YOUR RIGHT TO A JURY TRIAL, WAIVE YOUR RIGHT TO INITIATE OR PARTICIPATE IN A CLASS OR COLLECTIVE ACTION AND REMAIN BOUND BY ANY AND ALL LIMITATIONS OF LIABILITY AND DAMAGES INCLUDED IN THE APPLICABLE AGREEMENTS.
Time to Bring a Claim. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING IN ANY WAY TO THE AGREEMENTS, YOUR ACCESS TO OR USE OF THE PLATFORM, OR YOUR DEALINGS WITH THE RELEASED PARTIES MUST BE COMMENCED IN ARBITRATION OR LITIGATION (AS APPLICABLE)WITHIN TWO (2) YEARS AFTER THE CAUSE OF ACTION ACCRUES. AFTER THAT TWO (2) YEAR PERIOD,SUCH CAUSE OF ACTION OR CLAIMS IS PERMANENTLY BARRED. SOME JURISDICTIONS DO NOT ALLOW TIME LIMITATIONS OTHER THAN THOSE SET FORTH IN SUCH STATE’S STATUTE OF LIMITATIONS. IN SUCH CASES, THE APPLICABLE STATUTE OF LIMITATIONS PROVIDED FOR UNDER THE LAWS OF SUCH STATE SHALL APPLY.
Prevailing Party. IN ANY ARBITRATION PROCEEDING OR LITIGATION (AS APPLICABLE) BETWEEN YOU AND THE RELEASED PARTIES IN CONNECTION WITH ANY OF THE AGREEMENTS, YOUR ACCESS TO OR USE OF THE PLATFORM, OR YOUR DEALINGS WITH THE RELEASED PARTIES, THE PREVAILING PARTY WILL BE ENTITLED TO RECOVER ITS REASONABLE ATTORNEY’S FEES AND COSTS IN SUCH ARBITRATION OR LITIGATION (AS APPLICABLE) FROM THE OTHER PARTY.
Governing Law. These Terms will be governed by the laws of Massachusetts, without giving effect to any principles of conflicts of laws.
Electronic Communications. The communications between you and Impact Biosystems use electronic means, whether you access or use our Platform or send us emails, or whether we post notices on our Platform or communicate with you via email. For contractual purposes, you (1) consent to receive communications from Impact Biosystems in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Impact Biosystems provides to you electronically, including, without limitation, the Rules, satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
Severability. If any part of these Terms are determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the warranty disclaimers and limitations of liability set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the applicable Terms shall continue in effect.
Waivers. Our failure to enforce any provision of these Terms shall not be deemed a waiver of such provision nor of the right to enforce such provision.
Admissibility of Terms. A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Assignment. We reserve the right to transfer, assign, sublicense or pledge these Terms, in whole or in part, to any person without notice, provided that any such assignment will be on the same terms or terms that are no less advantageous to you. You may not assign, sublicense or otherwise transfer in any manner whatsoever any of your rights or obligations under these Terms.
Headings. The section headings and sub-headings contained in these Terms are for convenience only and have no legal or contractual effect.
Support. If you have any questions or concerns about our Platform or these Terms, please email us at firstname.lastname@example.org