Effective Date: April 29, 2020
Last Updated Date: April 29, 2020
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 Portal Terms or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Portal Terms are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Portal Terms and any applicable Supplemental Terms are referred to herein as the “Terms.”
THESE PORTAL 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 ARE SUBJECT TO CHANGE BY NEOFECT IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, we will make a new copy of the Portal Terms available within the Portal. We will also update the “Last Updated” date at the top of these Portal 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 Portal and will be effective thirty (30) days after posting notice of such changes on the Portal 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 Portal 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 Portal 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 PORTAL TO VIEW THE THEN-CURRENT TERMS.
YOU UNDERSTAND THAT THE SERVICES ARE NOT – AND ARE NOT INTENDED TO BE USED AS – A MEDICAL RECORDS REPOSITORY. CLINICIANS ARE SOLELY RESPONSIBLE FOR MEETING THE MEDICAL RECORDS RETENTION REQUIREMENTS APPLICABLE TO YOU.
1. Our Services.
Our Portal, and the related Services, are designed to allow Clinicians to initiate video calls with screenshare features (“Video Calls”) with their patients (collectively, “Patients”) and, as applicable, to monitor their Patients’ use of the Neofect-issued devices (“Neofect Devices”) for remote patient monitoring (“Device Monitoring”). Neofect does not record, store, archive, listen to, or otherwise monitor any Video Calls between Clinicians and Patients.
1.1 Patient Consent.
As a Subscriber, you hereby represent and warrant that you have secured all consents from your Patients necessary for you and, as applicable, any Clinicians in your practice to provide services to Patients through the Video Calls and Device Monitoring, and otherwise for Neofect to facilitate the Video Calls and Device Monitoring and otherwise provide our Services to you and your Patients. You understand and agree that we may request additional documentation and proof of consents from you related to our access and use of your Video Calls, and that if we do not receive such documentation and consents, we may be unable to provide you or your Patients the Services.
1.2 Services Not Intended as Medical Advice.
NEOFECT ACTS SOLELY AS A VENUE TO CONNECT PATIENTS WITH CLINICIANS, AND TO FACILITATE VIDEO CALLS AND DEVICE MONITORING. NEOFECT IS NOT A MEDICAL PROFESSIONAL OR THERAPY PROVIDER, AND WE DO NOT PROVIDE MEDICAL SERVICES, RENDER MEDICAL ADVICE OF ANY KIND, OR MAKE CLINICAL, MEDICAL, OR OTHER PROFESSIONAL DECISIONS. YOU ACKNOWLEDGE AND AGREE THAT NEOFECT DOES NOT ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR THE ACCURACY, EFFICACY, OR VERACITY OF ANY INFORMATION OR RECOMMENDATION RECEIVED OR PROVIDED BY A CLINICIAN THROUGH THE SERVICES.
You represent and warrant that you are a licensed healthcare practitioner and you are licensed to practice in the states in which you hold yourself out as being licensed. You, and not Neofect, are entirely responsible for obtaining and maintaining all applicable licenses and permits necessary for you to conduct Video Calls with Patients and participate in Device Monitoring, and for any information or data that you transmit to Neofect, Patients, and other users through the Service. You represent and warrant that all information you transmit through the Service to Neofect is true, accurate and complete.
3. MODIFICATION AND TERMINATION.
You agree that we, in our sole discretion, may immediately suspend or terminate your access to the Portal 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 Portal, 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 Portal.
4. USE OF THE SERVICES AND OWNERSHIP
You understand and acknowledge that the software, code, proprietary methods and systems used to provide the Portal, including the Portal (“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 Portal, 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 Portal 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 Portal will be governed by such third parties’ licenses and not by these Terms.
4.2 PORTAL LICENSE.
Subject to your compliance with these Terms, Neofect grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the features and functionality the Portal.
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 you submit through the Portal and Services, including the information you share through Video Calls or in connection with Device Monitoring (“Your Content”), is your sole responsibility. This means that you, and not Neofect, are entirely responsible for Your Content, and other users of the Portal, and not Neofect, are similarly responsible for all information they share through the Portal and Services (“User Content”). By submitting Your Content, in addition to the rights granted in Section 5 below, you grant Neofect a fully paid, royalty-free, non-exclusive license to use, distribute, reproduce, publicly perform, and publicly display, Your Content (in whole or in part) for purposes of providing the Services.
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 Your 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 use Your Content in accordance with the business associate agreement (“BAA”) entered into between Neofect and the applicable Subscriber, the terms of which are available at [URL] and to de-identify and/or aggregate, and analyze, any of Your Content (except Your Content shared through Video Calls), and agree that Neofect exclusively owns such de-identified and/or aggregated data and any improvements or new products or services arising therefrom. You acknowledge that Neofect has separately obtained Patient authorization to de-identify and/or aggregate their data as part of the Patient registration for use of the Video Call and Device Monitoring service.
6. FEES AND PURCHASE TERMS.
In order to access and use the Services, you or your employer must subscribe to the Services. The following terms only apply to Subscribers.
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.
6.2. 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 6.2 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 6.2 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.
6.4. 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.
6.5. 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).
6.6. 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 6.5 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.
6.7. 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.
6.8. THIRD PARTY PROVIDER.
7. Interactions with Other Users.
7.1. User Responsibility.
You are solely responsible for your interactions with Patients with whom you interact; provided, however, that Neofect reserves the right, but has no obligation, to intercede in such disputes. You agree that Neofect will not be responsible for any liability incurred as the result of such interactions.
You acknowledge that Neofect merely provides a means for Clinicians to initiate Video Calls to their Patients and to facilitate Device Monitoring for purposes of remote patient monitoring. Neofect does not have any control or authority over any Clinicians or Patients, and is not responsible for their actions and inactions. You hereby release Neofect and its successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Portal and Services, including your interactions with Patients. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor or releasing party 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 or the released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Neofect or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Portal or any Services provided hereunder.
7.3. Accuracy of Information; HIPAA Compliance.
You acknowledge and agree that: (i) any and all information you provide, transmit, or transfer to or through the Service or by other means, that may reasonably be understood to be used by us in connection with the Service will be accurate and will comply with all applicable health information laws and other laws, rules and regulations, including, to the extent applicable, the Health Insurance Portability and Accountability Act (“HIPAA”) and the Health Information Technology for Economic and Clinical Health Act (“HITECH”); and (ii) you, as a Subscriber, will enter into a BAA with Neofect. You represent and warrant that you have all rights and authorizations necessary to provide, transmit and/or transfer any such data that Provider includes in the Service.
7.4 Medical Advice.
You acknowledge and agree that any advice provided to a Patient through the Services will be based on the Provider’s own medical judgment and Neofect will not be liable for any review of your advice or liability that results from your advice.
You agree to indemnify and hold Neofect and their respective parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Neofect Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to (a) any breach by you of the terms of this Agreement; (b) any content, data or other information provided by you to us, through the Service to a Patient or other user, or by other means, that may reasonably be understood to be used by us in connection with the Service, including but not limited to any failure by Provider to comply with any applicable health information privacy law, such as HIPAA and HITECH; (c) your access, use or misuse of the Service; (d) your failure to comply with any and all other applicable laws, orders, codes and regulations, including, without limitation all licensure and privacy laws, in your use of the Service; and (e) any access to the Service using your login information. Neofect reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Neofect in asserting any available defenses. This provision does not require you to indemnify any of the Neofect Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Application or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the Services.
9. Disclaimer of Warranties and Conditions.
9.1. As Is.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF SERVICES IS AT YOUR SOLE RISK, AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. NEOFECT PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE APPLICATION.
(A) NEOFECT PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF SERVICES WILL BE ACCURATE OR RELIABLE.
(B) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(C) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. NEOFECT MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(D) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR THROUGH SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(E) FROM TIME TO TIME, NEOFECT MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT COMPANY’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
9.2. No Liability for Conduct of Patients.
YOU ACKNOWLEDGE AND AGREE THAT NEOFECT PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD NEOFECT PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, AND THAT THE RISK OF INJURY FROM ANY PATIENTS RESTS ENTIRELY WITH YOU.
10. Limitation of Liability.
10.1. Disclaimer of Certain Damages.
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL NEOFECT PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH SERVICES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT NEOFECT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON SERVICES; OR (5) ANY OTHER MATTER RELATED TO SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF AN NEOFECT PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY AN NEOFECT PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY AN NEOFECT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
10.2. Cap on Liability.
UNDER NO CIRCUMSTANCES WILL NEOFECT PARTIES BE LIABLE TO YOU FOR MORE THAN THE SUBSCRIPTION FEES PAID BY THE SUBSCRIBER TO NEOFECT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF AN NEOFECT PARTY FOR (1) DEATH OR PERSONAL INJURY CAUSED BY AN NEOFECT PARTY’S NEGLIGENCE; OR FOR (2) ANY INJURY CAUSED BY AN NEOFECT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
10.3. Basis of the Bargain.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NEOFECT AND YOU.
11. Term and Termination.
The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Services, unless terminated earlier in accordance with the Terms.
11.2. Termination of Services by Us.
We may terminate and/or suspend the Services, your Account and/or these Terms in the event you breach any terms herein, or if required to do so by applicable law.
11.3. Termination of Services by You.
If you want to terminate the Services provided by Neofect, you may do so in accordance with Section 6.
11.4. Effect of Termination.
Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content, unless we are required to retain a copy of Your Content in accordance with applicable law. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Neofect will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. 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 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 https://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 Portal. If you object to any such changes, your sole recourse will be to cease using the Portal. Continued use of the Portal 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 Portal that are not subject to Section 12 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 Portal 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 Portal 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.