Effective Date: March 31, 2020
Last Updated Date: March 31, 2020
IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT NEOFECT’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU OPT DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 7.5 BELOW.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the App Terms or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the App Terms of are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The App Terms and any applicable Supplemental Terms are referred to herein as the “Terms.”
THE SERVICES DO NOT PROVIDE MEDICAL OR OTHER LICENSED HEALTHCARE PROFESSIONAL ADVICE. NOTHING STATED OR POSTED ON THE APP OR AVAILABLE THROUGH ANY SERVICES MADE AVAILABLE ON THIS APP IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE OR OTHER LICENSED HEALTHCARE PROFESSION. THE MATERIALS ON THIS APP, SUCH AS TEXT, GRAPHICS, IMAGES, VIDEOS AND OTHER INFORMATION OBTAINED FROM THIS APP ARE FOR INFORMATIONAL PURPOSES ONLY. THE APP IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTHCARE PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR HEALTHCARE PROFESSIONAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF INFORMATION YOU HAVE OBTAINED THROUGH THIS APP. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY.
THESE APP TERMS REQUIRE THE USE OF ARBITRATION (SECTION 12 BELOW) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
PLEASE NOTE THAT THE TERMS IS SUBJECT TO CHANGE BY NEOFECT IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, we will make a new copy of the App Terms available within the App. We will also update the “Last Updated” date at the top of these App Terms. If we make any material changes, and you have registered with us to create an Account (as defined in Section 1 below) we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms. Any changes to the Terms will be effective immediately for new users of the App and will be effective thirty (30) days after posting notice of such changes on the App for existing users, provided that any material changes shall be effective for users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the App or thirty (30) days after dispatch of an e-mail notice of such changes to registered users. Neofect may require you to provide consent to the updated Terms in a specified manner before further use of the App and/ or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Services. Otherwise, your continued use of Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
1. THE SERVICES.
a. Description. We provide Connect App Services users with access to a wide array of resources to assist with rehabilitation and managing life after stroke. Specifically, Connect App offers resources regarding life after a stroke, including readings, videos, and webinars. Our content is made available through the App solely to provide resources and motivation during your recovery journey, but is not intended to be medical advice or a substitute for medical advice.
b. Connect App Plans and Features. Connect App is a subscription service that allows you to access informational videos, blogs, game recommendations, and other content, chosen at our discretion that provides information about life after a stroke and relevant recovery options. We reserve the right to eliminate or modify any or all of the functionality of the Subscription at any time without any prior notice to you.
c. No Medical Advice nor Doctor-Patient Relationship. ANY AND ALL HEALTH-RELATED RESOURCES PROVIDED BY AND/OR THROUGH THE SERVICES ARE FOR INFORMATIONAL PURPOSES ONLY. NEOFECT IS NOT A MEDICAL PROFESSIONAL, AND WE DO NOT PROVIDE MEDICAL SERVICES OR RENDER MEDICAL ADVICE. NOTHING CONTAINED IN THE SERVICES SHOULD BE CONSTRUED AS SUCH ADVICE OR DIAGNOSIS. OUR SERVICES SHOULD NOT BE INTERPRETED AS A SUBSTITUTE FOR PHYSICIAN CONSULTATION, EVALUATION, OR TREATMENT, AND THE INFORMATION MADE AVAILABLE ON OR THROUGH THE SERVICES SHOULD NOT BE RELIED UPON WHEN MAKING MEDICAL DECISIONS, OR TO DIAGNOSE OR TREAT A MEDICAL OR HEALTH CONDITION. YOUR USE OF THE SERVICES DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND NEOFECT. You are urged and advised to seek the advice of a physician, occupational therapist, or medical professional with any questions you may have regarding your health before beginning any rehabilitation, physical activities or any other plans that may be referenced, discussed or offered under the Services. If you are still being treated for stroke or other illness, taking prescription medication or following a rehabilitation plan, it is especially urged to consult with your physician before using the Services. You represent that you are not using the Services for purpose of seeking medical attention. You further agree that, before using the Services, you shall consult your physician and that if any information you receive or obtain from using the Services that is inconsistent with the medical advice from your physician, you should follow the advice of your physician.
d. Content Disclaimers. THE SERVICE MAY CONTAIN OPINIONS AND VIEWS OF NEOFECT, ITS CONTENT CREATORS, AND OTHER USERS OR THIRD PARTIES. HOWEVER, NEOFECT DOES NOT ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR THE ACCURACY, EFFICACY, OR VERACITY OF ANY CONTENT (“AS DEFINED BELOW”) POSTED OR SUBMITTED BY NEOFECT OR ANY OF ITS CONTENT CREATORS, USERS OR ANY THIRD PARTY THAT ARE MADE AVAILABLE THROUGH THE SERVICE. You agree that you will not seek any diagnosis, prognosis, treatment, prescription, product recommendation or medical advice of any kind from Neofect.
3. MODIFICATION AND TERMINATION.
You agree that we, in our sole discretion, may immediately suspend or terminate your access to the App or any part of the Services at any time, for any reason, in our sole discretion. We also reserve the right, at any time, to modify the Services or to modify, suspend, or discontinue the App, or any part thereof, with or without notice. You agree that we will not be liable to you or to any third party for any modification of the Services or modification, suspension, or discontinuance of the App.
4. USE OF THE SERVICES AND OWNERSHIP
You understand and acknowledge that the software, code, proprietary methods and systems used to provide the App, including the App (“Our Technology”) are: (a) copyrighted by us and/or our licensors under United States and international copyright laws; (b) subject to other intellectual property and proprietary rights and laws; and (c) owned by us or our licensors. Our Technology may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without our prior written permission and the prior written permission of our applicable licensors. You must abide by all copyright notices, information, or restrictions contained in or attached to any of Our Technology. Nothing in these Terms grants you any right to receive delivery of a copy of Our Technology or to obtain access to Our Technology except as generally and ordinarily permitted through the App, according to these Terms. Furthermore, nothing in these Terms will be deemed to grant, by implication, estoppel or otherwise, a license to Our Technology. Certain of the names, logos, and other materials displayed on the App constitute trademarks, tradenames, service marks or logos (“Marks”) of Neofect or other entities. You are not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therewith remains with us or those other entities. Any use of third party software provided in connection with the App will be governed by such third parties’ licenses and not by these Terms.
4.2 APP LICENSE.
Subject to your compliance with these Terms, Neofect grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the App on a single mobile device or computer that you own or control and to run such copy of the App solely for your own personal or internal business purposes. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any App access through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the App on a shared basis within your designated family group.
You agree that submission of any ideas, suggestions, documents, and/or proposals to Neofect through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Neofect has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant us a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Services and/or Neofect’s business.
You acknowledge that all information, data, text, software, music, sound, photographs, graphics, video, messages, blogs, game recommendations, readings, webinars, tags and/or other materials accessible through the App, whether publicly posted or privately transmitted (“Content”), are the sole responsibility of the party from whom such Content originated. This means that you, and not Neofect, are entirely responsible for all Content that you upload, post, or otherwise make available (“Make Available”) through the App (“Your Content”), and other users of the App, and not Neofect, are similarly responsible for all Content they Make Available through the App (“User Content”). By submitting Your Content, which shall include your username, to any “public area” of the App, you grant Neofect a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, publicly display, derive revenue or other remuneration from, and communicate to the public, Your Content (in whole or in part) and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right, including moral rights, that may exist in Your Content. You also warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Neofect, are responsible for all of Your Content that you Make Available on or in the App, whether publicly posted or privately transmitted. Except with respect to Your Content and User Content, you agree that Neofect and its licensors, including third-party content creators, own all rights, title and interest in Content we make available in the App (“Our Content”). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying Our Content.
4.5 CERTAIN RESTRICTIONS.
The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Our Technology or Content or any portion thereof, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or Our Technology (including images, text, page layout or form) of Neofect; (c) you shall not use any metatags or other “hidden text” using Neofect’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Our Technology except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the App; (f) you shall not access Our Technology in order to build a similar or competitive application or service; (g) except as expressly stated herein, no part of Our Technology may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Our Technology. Any future release, update or other addition to Our Technology shall be subject to these Terms. Neofect, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of Our Technology terminates the licenses granted by Neofect pursuant to the Terms.
4.6 THIRD-PARTY MATERIALS.
As a part of Our Technology, you may have access to materials that are submitted or hosted by another party. You agree that it is impossible for Neofect to monitor such materials and that you access these materials at your own risk. We provide these materials only as a convenience and do not review, approve, monitor, endorse, warrant, or make any representations with respect to third party materials.
5. USAGE DATA.
Subject to applicable laws and regulations, you agree Neofect may de-identify and/or aggregate, and analyze, any data or information you provide us through the use of the Services relating to the efficacy, functions, or features of the Services, and agree that Neofect exclusively owns such de-identified and/or aggregated data and any improvements or new products or services arising therefrom.
6. APP STORES.
You acknowledge and agree that the availability of the App and the Services is dependent on the third party from whom you received the App license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Terms is between you and Neofect and not with the App Store. Neofect, not the App Store, is solely responsible for Our Technology, including the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Our Technologies, including the App. You agree to comply with, and your license to use the App is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Our Technology, including the App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
7. FEES AND PURCHASE TERMS.
You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide Neofect with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account (“Payment Provider”), or purchase order information as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement and not the Terms to determine your rights and liabilities. By providing Neofect with your credit card number or PayPal account and associated payment information, you agree that Neofect is authorized to immediately invoice your Account for all fees and charges due and payable to Neofect hereunder and that no additional notice or consent is required. You agree to immediately notify Neofect of any change in your billing address or the credit card or PayPal account used for payment hereunder. Neofect reserves the right at any time to change its prices and billing methods, either immediately upon posting on the App or by e-mail delivery to you.
7.2 SERVICE SUBSCRIPTION FEES.
You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you create your Account and subscribe to a monthly plan. Except as set forth in the Terms, all fees for the Services are non-refundable. No contract will exist between you and Neofect for the Services until Neofect accepts your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.
The payments required under Section 7.2 of these Terms do not include any Sales Tax that may be due in connection with the Services provided under these Terms. If Neofect determines it has a legal obligation to collect a Sales Tax from you in connection with these Terms, Neofect shall collect such Sales Tax in addition to the payments required under Section 7.2 of these Terms. If any Services, or payments for any Services, under the Terms are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Neofect, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Neofect for any liability or expense Neofect may incur in connection with such Sales Taxes. Upon Neofect’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
7.4 WITHHOLDING TAXES.
You agree to make all payments of fees to Neofect free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Neofect will be your sole responsibility, and you will provide Neofect with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
7.5 AUTOMATIC RENEWAL.
Your subscription will continue indefinitely until terminated in accordance with the Terms. After your initial monthly subscription period, and again after any subsequent monthly subscription period, your monthly subscription will automatically commence on the first day following the end of such month (each a “Renewal Commencement Date”) and continue for an additional monthly period, at Neofect’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from Neofect that your subscription will be automatically renewed, you will have thirty days from the date of the Neofect notice), by logging into and going to the “Cancel Plan” page of your “Account Settings” page. If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please contact Neofect at 1-888-686-2227 or firstname.lastname@example.org or log in and go to the “Cancel Plan” page on your “Account Settings” page. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize Neofect to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Neofect does not receive payment from your Payment Provider, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that Neofect may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
7.6 FREE TRIALS AND OTHER PROMOTIONS.
Any free trial or other promotion that provides you access to the Services must be used within the specified time of the trial. At the end of the trial period, you will be automatically enrolled in our monthly subscription Services and will be charged the applicable Service Subscription Fee, in accordance with Section 7.5 above, unless you cancel prior to the conclusion of the trial period. If you are inadvertently charged for a subscription, please contact Neofect at email@example.com to have the charges reversed.
7.7 BILLING DISPUTES.
Unless otherwise provided by the applicable payment processor or payment platform used in connection with your payment for Services, you must notify us in writing within seven (7) days after receiving your credit card statement if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: firstname.lastname@example.org.
7.8 THIRD PARTY PROVIDER.
8. WARRANTY DISCLAIMER.
WE ARE PROVIDING THE APP, THE SERVICES AND OUR CONTENT ON AN “AS IS” BASIS FOR USE AT YOUR OWN RISK. WE DISCLAIM ALL WARRANTIES, WHETHER EXPRESS IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, NON-INTERFERENCE, AND SYSTEM INTEGRATION. WE DO NOT WARRANT THAT YOUR USE OF THE APP OR ANY RELATED SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR VIRUS FREE. WE DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE APP CONTENT. INFORMATION AT THE APP MAY NOT BE CURRENT AT THE MOMENT YOU VISIT THE APP AND MAY CONTAIN ERRORS.
NEOFECT MAKES NO WARRANTY, REPRESENTATION, OR CONDITION: (1) THAT THE SERVICES OR ANY CONTENT THEREON, INCLUDING ANY INTERACTION WITH OTHER USERS, WILL BE APPROPRIATE FOR YOU OR MEET YOUR REQUIREMENTS; OR (2) WITH RESPECT TO ANY RESULTS THAT MAY BE OBTAINED THROUGH THE SERVICES. THE SERVICES ARE NOT A REPLACEMENT FOR A PHYSICAL EXAMINATION BY YOUR OR ANOTHER TRAINED HEALTHCARE PROVIDER AND SHOULD NOT BE USED INDEPENDENTLY TO DIAGNOSE ANY MEDICAL CONDITION. To the extent permitted under applicable law, you acknowledge and agree that Neofect is not liable, and you agree not to seek to hold Neofect liable, for the conduct of third parties on the Services, including outside coaches, and that the risk of injury from such third parties rests entirely with you.
9. LIMITATION OF LIABILITY.
IN NO EVENT SHALL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE APP OR THE APP CONTENT, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ON ANY THEORY OF LIABILITY. OUR TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THESE TERMS, THE APP, OR THE APP CONTENT, INCLUDING ANY LISTING FOUND ON OR THROUGH THE APP, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS PAID BY YOU TO US IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE GIVING RISE TO THE LIABILITY, OR IF NO AMOUNTS WERE PAID, FIVE DOLLARS ($5.00).
YOU AGREE TO INDEMNIFY, HOLD HARMLESS AND, AT OUR OPTION, DEFEND US (INCLUDING OUR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, SUPPLIERS AND ANY THIRD-PARTY INFORMATION PROVIDERS) FROM AND AGAINST ALL DAMAGES, LIABILITIES, AND EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES, RESULTING FROM YOUR CONTENT (INCLUDING ANY ALLEGATION THAT YOUR CONTENT INFRINGES A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS) AND/OR ANY VIOLATION OF THESE TERMS.
11. TERM AND TERMINATION.
You and we agree that the Terms commenced on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted the Terms and will remain in full force and effect while you use the Services, unless earlier terminated in accordance with the Terms.
11.2 Termination of Services by Neofect.
We may terminate this Agreement at any time for any reason, including if timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Agreement, or if Neofect is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful). Neofect may immediately and without notice, suspend or terminate any Services provided to you.
11.3 TERMINATION OF SERVICES BY YOU.
If you want to terminate these Terms, you may do so by (a) notifying Neofect at any time and (b) closing your Account. Your notice should be sent, in writing, to Neofect’s address set forth below. THAT BEING SAID, THE AGREEMENT WILL CONTINUE UNTIL THE END OF ANY THEN CURRENT SUBSCRIPTION PERIOD IN ACCORDANCE WITH SECTION 7.5.
11.4 EFFECT OF TERMINATION.
Termination of these Terms includes removal of access and all related information, including information inside your Account (or any part thereof). Neofect will not have any liability whatsoever to you for any suspension or termination. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
12. Dispute Resolution.
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Neofect and limits the manner in which you can seek relief from us.
12.1 APPLICABILITY OF ARBITRATION AGREEMENT.
You agree that any dispute or claim relating in any way to your access or use of the Connect App Services, to any products sold or distributed through the Connect App Services, or to any aspect of your relationship with Neofect, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Neofect may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of these Terms or any prior version of these Terms.
IF YOU AGREE TO ARBITRATION WITH NEOFECT, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST NEOFECT ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE NEOFECT IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
12.2 ARBITRATION RULES AND FORUM.
The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent Mary Fong: 235 Montgomery St, San Francisco, CA 94104. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Neofect will pay them for you. In addition, Neofect will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Neofect will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
12.3 AUTHORITY OF ARBITRATOR.
The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Neofect. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Terms (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
12.4 WAIVER OF JURY TRIAL.
YOU AND NEOFECT HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Neofect are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 12 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
12.5 WAIVER OF CLASS OR CONSOLIDATED ACTIONS.
ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Notwithstanding anything to the contrary herein, (a) representative action for public injunctive relief may be arbitrated on a class basis and (b) in the event that the foregoing sentence is deemed invalid or unenforceable with respect to a particular class or dispute for recovery of damages, neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court as set forth in Section 12.
12.6 30-DAY RIGHT TO OPT OUT.
You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: Mary Fong: 235 Montgomery St, San Francisco, CA 94104, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Neofect username (if any), the email address you used to set up your Neofect account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
12.8 SURVIVAL OF AGREEMENT.
This Arbitration Agreement will survive the termination of your relationship with Neofect.
Notwithstanding any provision in this Agreement to the contrary, we agree that if Neofect makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to Neofect.
We may change these Terms from time to time. Any such changes will become effective when posted on the App. If you object to any such changes, your sole recourse will be to cease using the App. Continued use of the App following posting of any such changes will indicate your acknowledgement of such changes and your agreement to be bound by the revised Terms, inclusive of such changes.
14. GENERAL PROVISIONS.
You are responsible for compliance with all applicable laws. The Terms and the relationship between you and us will be governed by the laws of the State of Delaware, without giving effect to any choice of laws principles that would require the application of the laws of a different country or state. Any legal action, suit or proceeding arising out of or relating to the Terms, or your use of the App must be instituted exclusively in the federal or state courts located in Delaware, and in no other jurisdiction. You further consent to exclusive personal jurisdiction and venue in, and agree to service of process issued or authorized by, any such court. These Terms are personal to you, and you may not transfer, assign or delegate your right and/or duties under these Terms to anyone else and any attempted assignment or delegation is void. You acknowledge that we have the right hereunder to seek an injunction, if necessary, to stop or prevent a breach of your obligations hereunder. The paragraph headings in these Terms, shown in boldface type, are included only to help make these Terms easier to read and have no binding effect. Any delay or failure by us to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. No waiver by us will have effect unless such waiver is set forth in writing, signed by us; nor will any such waiver of any breach or default constitute a waiver of any subsequent breach or default. If for any reason a court of competent jurisdiction finds any provision of these Terms, or portion thereof, to be unenforceable, that provision of the Terms will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of these Terms will continue in full force and effect. These Terms along with the agreements referenced in these Terms constitute the entire agreement between you and us with regard to the matters described above. Neofect shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
The communications between you and us relating to the App use electronic means. For contractual purposes, you (a) consent to receive communications from us in an electronic form, whether via email or posting on the App or other reasonable means; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were in a writing. If you have any questions about the foregoing, please contact us at the following e-mail address: email@example.com.
14.2 QUESTIONS, COMPLAINTS, CLAIMS.
If you have any questions, complaints or claims with respect to Our Technology, please contact us at firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
14.3 EXPORT CONTROL.
You may not use, export, import, or transfer Our Technology except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Our Technology, and any other applicable laws. In particular, but without limitation, Our Technology may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Our Technology, you represent and warrant that (y) 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 (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Our Technology for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Neofect are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Neofect products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
14.4 CONSUMER COMPLAINTS.
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
14.5 ACCESSING AND DOWNLOADING THE APPLICATION FROM ITUNES.
The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
i. You acknowledge and agree that (i) the Terms are concluded between you and Neofect only, and not Apple, and (ii) Neofect, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
ii. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
iii. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Neofect and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Neofect.
iv. You and Neofect acknowledge that, as between Neofect and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
v. You and Neofect acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Neofect and Apple, Neofect, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
vi. You and Neofect acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
vii. Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.