USE OF THE CLEARMD SOLUTIONS, INC.’S WEBSITE AT HTTPS://WWW.GETCLEARMD.COM/ AND MOBILE APPLICATION (TOGETHER, THE “WEBSITE”) AND ANY PRODUCTS OR SERVICES PROVIDED OR FACILITATED BY THE WEBSITE, IS ONLY CONTEMPLATED FOR SPECIFIC NON-EMERGENCY MEDICAL CONDITIONS OR CONCERNS.
THESE TERMS OF SERVICE, AS UPDATED BY US FROM TIME TO TIME, (“TERMS”) GOVERN YOUR USE OF AND ACCESS TO THE WEBSITE, ANY PRODUCTS OR SERVICES PROVIDED OR FACILITATED BY THE WEBSITE, AND YOUR PURCHASE OR USE OF THOSE PRODUCTS OR SERVICES (THE WEBSITE AND SUCH PRODUCTS AND SERVICES, TOGETHER OR ANY PART THEREOF, THE “PLATFORM”).
THESE TERMS CONTAIN A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE PLATFORM. YOUR USE OF AND ACCESS TO THE PLATFORM CONSTITUTES YOUR CONSENT TO THESE TERMS. IF YOU DO NOT OR CANNOT AGREE WITH ANY PART OF THESE TERMS OF SERVICE, YOU MAY NOT USE THE PLATFORM.
1.2 Health Service Providers. You agree that when you use or access the Platform, you affirmatively consent to conduct business electronically with us and engage in health related activities with the professional corporations or other professional entities that are affiliated with us (“Provider Group”), and the health care providers that are employed by or are contracted independently with any Provider Group (“Providers”), and such consent has the same force and effect as your written signature.
1.3 Revisions to these Terms. We may change these Terms at any time. It is our policy to post any changes we make to our Terms on this page. The date these Terms were last modified is identified at the top of the page. You are responsible for ensuring we have an up-to-date, active and valid email address for you, and for monitoring and reviewing any updates to the Terms. Should any substantial change to these Terms be made that are adverse to you, we will notify you by posting on our Website and/or by sending our known users an email notification. We otherwise advise you to read our Terms every time you visit our Website to stay abreast of any updates. Your continued use of our Platform after such changes are made to the Terms will be deemed your acknowledgement of and agreement to those changes.
2.1 Facilitation by Platform. You understand and agree that the Platform is intended to facilitate the following services: (a) the development and gathering of health care records and information with retention of the same for use in Provider encounters and communications; (b) administrative support in connection with scheduling and payment for health care services by Providers, including teledermatology and other telehealth services (“health care services”); (c) administrative support in connection with coordinating optional fulfilment and payment for prescription products ordered or prescribed by Providers; (d) pharmacy services; and (e) telecommunications and technology support for using the Website as a means of direct access to Providers for communication, consultations, assessments and treatment by such Providers.
2.3 Providers. All Providers who deliver health care services through the Platform are: (a) independent professionals contracted or employed with Provider Groups; and (b) solely responsible for such health care services provided to you. We do not provide any health care services and are not licensed to practice medicine. We do not control or interfere with the provision of health care services by the Providers or Provider Groups, each of whom is independent and solely responsible for the health care services provided to you. Therefore, you understand and agree that we are not responsible for health care services, or your use of any health care services, provided by a Provider, including any personal injury or property damage.
2.4 Specific Health Care Services. The Platform is structured for the use specific to certain health care services and is not, and should not, be considered, or used as, comprehensive medical advice, care, diagnosis or treatment. In addition, the dermatology health care services are limited to the medical advice, care, diagnosis or treatment of acne and skin aging and related conditions, and not for any other medical conditions such as skin cancer.
2.5 General Questions. Always seek the advice of your physician or other qualified health care provider with any questions you may have regarding general personal health, medical conditions, or drugs or medications, and before commencing or discontinuing any course of treatment, drug or medication. You should also check product information (including package inserts) regarding dosage, precautions, warnings, interactions, and contraindications before administering or using any device, drug, herb, vitamin, or supplement made available via the Platform. Any content provided by us on our Platform should not be construed as specific instructions or medical advice or health care services for or to you.
3.1 Criteria. By using the Platform, including purchasing or obtaining products made available via the Platform, including prescription and non-prescription products (“products”), you represent and warrant that:
3.2 No Guarantee. You understand and agree that satisfying the above requirements does not guarantee that you will receive the health care services or be able to obtain or purchase products through the Platform. In addition to the above requirements, we and the Providers reserve the right to change or include new requirements as deemed appropriate in our sole discretion without providing prior notice to you. Further, Providers may on a case by case basis determine that certain criteria apply to utilizing the Platform for the health care services or that health care services or other products made available via the Platform are not appropriate in any individual instance for a particular user.
3.3 No Circumvention. If after you have provided certain information to us, we have determined that you are not eligible to use the Platform or any part thereof, you will not attempt to circumvent that determination, such as by providing different information that is intended to meet our eligibility criteria. If Your Information is inaccurate, incomplete or not maintained, or we have reasonable grounds to suspect as much, we have the right to suspend or terminate your account and use of the Platform. In addition, we may take any and all actions we deem necessary or reasonable to maintain the security of the Platform.
3.4 Territory. The Platform is controlled or operated from the United States and is not intended to subject us to any non-U.S. jurisdiction or law. The Platform may not be used in any non-U.S. jurisdiction. Any use of the Platform outside the U.S. is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so.
3.5 Parents and Guardians. A parent or legal guardian of an individual under the age of eighteen (18) may prohibit an individual’s use of the Platform. If you are the parent or legal guardian of an individual under the age of eighteen (18) and believe that such individual has used the Platform without your consent or authorization, please contact us in accordance with Section 22.
3.6 Necessary Hardware and Services. You are responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed to use the Platform.
3.7 Changes to Platform. We may, at any time and without liability, modify or discontinue all or part of the Platform (including access to the Platform via any third party links).
4.1 Ownership of Platform. As between you and us, we own all right, title and interest in and to the Platform, its content, look and feel, selection and arrangements, features and functionality and all underlying software, algorithms and technology, and our trade names, trademarks, service marks and logos, any improvements or derivative works of any of the foregoing, and all intellectual property rights therein. You may only use the Platform, solely as it is made available to you by us, for your personal use, on a limited, revocable, nonexclusive and nontransferable basis, in accordance with these Terms. Nothing in these Terms transfers, conveys or licenses to you any other right, title or interest in or to the Platform or any other tangible property or intellectual property rights owned or licensed by us, and all rights not expressly granted are reserved by us.
4.2 Acceptable Use Policy. You must not use or access the Platform to do any of the following and must not allow or assist any third party to do any of the following:
5.1 Registration. Although certain parts of the Platform are accessible by any individual, you need to register with us to use the Platform and obtain or purchase products. We may reject, or require that you change, any username, password or other information that you provide to us in registering. The health care services and products are available only to users who have registered with us and to other persons affiliated with us who have been granted accounts with usernames and passwords. The Platform may not be accessible at any time, for any period or for any reason, and we will not be liable if for any reason all or any part of the Platform is unavailable at any time or for any period.
5.2 Account Information. Your permission to use the Platform is personal (the Platform, your username and password will be used only by you), and you may not use anyone else’s account at any time. You may not transfer or share your password with anyone or create more than one account. You agree to keep confidential your username and password and that you will exit from your account at the end of each session. You are responsible for all activities that occur under your account and for maintaining the confidentiality of your password; you, and not us, are responsible for any use or misuse of your username or password. Notwithstanding the foregoing paragraph, if you are between the ages of thirteen (13) and seventeen (17), you should share your username and password with a parent or guardian so they can monitor your care.
5.3 Notification of Security Breach. You must promptly notify us of any unauthorized use of your username or password, or your Platform account, or any other confidentiality or security breach that you become aware of involving or relating to the Platform or products, and you are responsible for changing your password promptly if you think it has been compromised.
6.2 License to Your Feedback. You may provide us with any ideas, proposals, suggestions or other materials (“Feedback”), whether related to the Platform, to the products, or otherwise. You hereby grant and agree to grant to us, our service providers, our successors and assigns, Provider Groups and Providers, a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid up, transferable and sublicenseable (through multiple tiers) right and license, without additional consideration to you or any third party, to use, reproduce, modify, analyze, perform, display (publically or otherwise), create derivative works of and distribute such Feedback for any purpose. Such Feedback is not confidential, your provision of Feedback is gratuitous, unsolicited and without restriction, and does not place us under any fiduciary or other obligation.
6.3 Representation and Warranty. You represent and warrant that you have all rights necessary to grant the licenses granted in this Section 6, and that Your Information is complete and accurate. To the extent permitted by law, you further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding Your Information and any Feedback that you may have under any applicable law under any legal theory.
6.4 Our Ownership. We will own any derivative works and aggregate or de-identified forms of Your Information and your Feedback that are developed by or on behalf of us.
7.1 Third Party Materials. You may have access to certain materials or products made available by third parties via the Platform (“Third Party Materials”). The Platform may also allow for the routing or transmission of such Third Party Materials, including via links. By using such functionality, you are directing us to access, route and transmit to you the applicable Third Party Materials.
7.2 No Responsibility for Third Party Materials. We neither control nor endorse, nor are we responsible for, any Third Party Materials, including the accuracy, integrity, quality, legality, usefulness or safety of Third Party Materials, or any intellectual property rights therein. Certain Third Party Materials may, among other things, be inaccurate, misleading or deceptive. Nothing in these Terms shall be deemed to be a representation or warranty by us with respect to any Third Party Materials. We have no obligation to monitor Third Party Materials, and we may block or disable access to any Third Party Materials (in whole or part) through the Platform at any time. In addition, the availability of any Third Party Materials through the Platform does not imply our endorsement of, or our affiliation with, any provider of such Third Party Materials, nor does such availability create any legal relationship between you and any such provider.
7.3 DISCLAIMER. YOUR USE OF THIRD PARTY MATERIALS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY MATERIALS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH MATERIALS). WE ARE NOT LIABLE TO YOU IN ANY WAY, EITHER DIRECTLY OR INDIRECTLY, FOR ANY CONTENT, ERRORS, DAMAGES OR LOSSES CAUSED BY OR IN CONNECTION WITH USE OF OR RELIANCE ON INFORMATION CONTAINED IN OR PROVIDED TO THIRD PARTY MATERIALS.
8.1 Prices. You agree to purchase our products and subscriptions from us at the prices specified on the Platform at the time you place your order (or when you sign up for the free trial). Unless otherwise specified by us, the published prices do not include: (a) shipping fees, which will be separately specified during your checkout process; or (b) any sales, use or excise taxes, or any other similar taxes, duties or charges of any kind imposed by any governmental authority on any amounts payable by you to us. If a product you order requires a consultation with a Provider then the total price you pay includes the amount charged by the Provider Group for the services of the Provider, as well as the amount we charge for the product and the use of and access to the Platform. We collect the amounts charged by the Provider Group on behalf of the Provider Group and pass the applicable amounts through to them.
8.2 Price Changes. We reserve the right to change our subscription plans or adjust prices for our products, services and special offers any time at our discretion. Except as otherwise expressly provided for in these Terms, any price changes or changes to your subscription will take effect following notice to you via the Platform or via email.
8.3 Payment Details. To be eligible to subscribe to the Platform or to obtain any products or health care services, you must provide us with sufficient details related to one or more current credit cards or other authorized payment accounts (“Payment Details”). Once you have provided us with your Payment Details, we can use your Payment Details to charge you for your subscription and/or for products purchased by you via the Platform and health care services (including shipping and taxes). You are responsible for ensuring that all details you provide to us are true and accurate, that you are an authorized user of the Payment Details used to place your order and that there are sufficient funds to cover the cost of our products. In the event that your Payment Details expire or we, our affiliates or our third party payment processors are unable to process your payment, you may receive notice for you to provide alternative payment details or we may cancel your subscription in our sole discretion. We and/or the Providers have no obligation to provide any services or products unless and until full payment has been received and/or verified.
8.4 Authorization. By entering your Payment Details and submitting your request, you authorize us, our affiliates, or our third party payment processors, to charge your Payment Details in accordance with these Terms.
8.5 Payment Updates. You may update your Payment Details through your user account on the Platform. Following any update, you authorize us to continue to charge the updated Payment Details.
8.6 Subscription Fees. By subscribing to the Platform, you agree to pay the subscription fee and at the frequency set forth on the Website. Your subscription to the Platform will continue and automatically renew on a monthly, bimonthly or such other basis as described on the Website when you sign up for your subscription.
8.7 Cancellation of Subscription. You may cancel your subscription at any time. If you cancel your subscription, your account will automatically close at the end of your current billing period. You must cancel your subscription by following the instructions on the Website, at least two business days, before your subscription renewal date, in order to avoid billing of the subscription fees for the next billing cycle to your Payment Details.
8.8 No Submission of Claims. Neither the products nor Platform are covered by any governmental health care payors or private insurance providers and, as such, you understand that no such claims will be submitted by us for coverage for the products or the Platform.
9.1 Free Trials. From time to time, we may offer a “free trial” or similar promotion, as described on the Website. Eligibility for the free trial or similar promotion, is determined by us in our sole discretion and we may limit eligibility or duration of the free trial or promotion at any time. We reserve the right to revoke your eligibility to receive the free trial or promotion at any time.
9.2 Charges Associated with Free Trials. We may charge your Payment Details with any shipping fees associated with products sent to you as part of any free trial or free products. You will have the opportunity to review such fees before finalizing the relevant order. When you sign up for a free trial, you are deemed to have subscribed to the Platform and we will charge your Payment Details the subscription fee for your next billing cycle at the end of your free trial period, and thereafter, your subscription will automatically renew, unless you cancel your subscription in accordance with Section 8.8.
9.3 Other Promotions. From time to time, we may offer other promotions, such as subscription or product discounts, shipping discounts and free shipping, such as through promotional codes to be entered on the Platform, or we may permit refunds under certain circumstances (each, a “Promotion”). Any such Promotion is offered in our sole discretion and subject to the Promotion’s own terms and conditions (if any) as included on the Website. Please carefully review any terms and conditions of each Promotion before doing anything covered by the Promotion. Unless the Promotion’s terms and conditions state otherwise, the following restrictions apply:
10.1 Order Confirmation. When you place an order for products or services on our Platform, and you receive a confirmation (via email or through the Platform) confirming the order or that our products have been sent to you (the “confirmation message”), if you believe that the confirmation message contains mistakes, please contact us immediately in accordance with Section 22. Unless you can provide conclusive evidence proving otherwise, the products or services listed in the confirmation message are conclusive evidence of the products or services you received. We are not responsible for any products or services not delivered to you unless you give us written notice in accordance with Section 22 of the non-delivery within ten (10) business days of the date when the products should have been received, assuming the ordinary course of events.
10.2 Order Cancellations. We may cancel any purchase of products or services at any time in the following cases, without any liability to you: (a) the information you provided to us in connection with your order or purchase is incorrect or cannot be checked; (b) your order is marked as suspicious or otherwise suggestive of fraud or illegality by our security systems; or (c) we have reason to believe that your order or purchase is intended for a further commercial activity or otherwise not in compliance with these Terms. We will inform you of any such any such cancellation and if your relevant order is cancelled, we will be under no obligation to fulfill the relevant order.
10.3 Errors on Website. We try to make sure all descriptions of our products and services and corresponding listed prices on the Platform are accurate and correct. However, mistakes do happen, and we will try to resolve any price or description errors as soon as reasonably possible. If we suspect that such an error has affected your order, we will make reasonable efforts to notify you via the Platform and give you the option of reconfirming your order at the correct price or description (as applicable) or cancelling it. If we are unable to contact you, we will treat the order as cancelled. If we cancel the order or if you cancel the order, and you have already paid for our products, you will receive a refund of the price you paid for our products at the time of your order.
10.4 Product Delivery. When you order any products, they will be delivered after the receipt of your order, subject to availability of our products and these Terms. In the case of subscription-based products, such products will be delivered to you on a monthly, bimonthly, or on such other basis as described during the checkout process. We will deliver our products to the address you provided us during the checkout process using our standard methods for packaging and shipping such products. If you order multiple products, we may ship our products to you separately, depending on their availability.
10.5 Risk of Loss. You agree that upon shipment (delivery to the carrier), ownership, and risk of loss and title for the products you order, pass to you.
10.6 Personal Use. All products ordered by you must only be obtained or purchased for your personal use. You may not use the products for any other purpose (such as outside commercial use), nor lend, rent, lease, resell or sell our products to any third party.
10.7 Packaging and Fulfillment Restrictions. If you select us to fulfill any prescriptions provided by Providers through the Platform, you acknowledge that your medication, if approved, will not be shipped in child-resistant packaging and that you must keep it out of reach of children.
10.8 Refund Policy. Please refer to our Refund Policy (as updated from time to time). Except as otherwise set forth our refund policy, we are generally unable to accept cancellations or changes to product orders once they are placed. If we offer you a refund or replacement product, you must follow the instructions we provide to be eligible for the refund or replacement product, including any instructions relating to the delivery of the product back to our designated address. Any refund provided will be at the original price of the product via the original payment method. Depending on the nature of the product ordered, the processing time for the refund or replacement will vary.
10.9 Missing Products. If products are missing from your order, please contact us in accordance with Section 22 within ten (10) business days of receipt of your package.
11.1 WARRANTIES DISCLAIMER. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, THE PLATFORM AND PRODUCTS ARE MADE AVAILABLE TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOUR USE OF THE PLATFORM AND PRODUCTS IS AT YOUR SOLE RISK. WE AND OUR OFFICERS, DIRECTORS, MANAGERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS, PROVIDER GROUPS AN PROVIDERS (COLLECTIVELY “RELATED PERSONS”) MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND SPECIFICALLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND GUARANTEES OF ANY KIND WITH RESPECT TO THE PLATFORM AND PRODUCTS TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, INCLUDING ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES WITH RESPECT TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AVAILABILITY, SECURITY, ACCURACY, FREEDOM FROM VIRUSES OR MALWARE, COMPLETENESS, TIMELINESS, FUNCTIONALITY, RELIABILITY, SEQUENCING OR SPEED OF DELIVERY. WE MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES THAT YOUR USE OF THE PLATFORM OR PRODUCTS WILL NOT INFRINGE THE RIGHTS OF THIRD PARTIES.
11.2 DAMAGES DISCLAIMER. TO THE FULLEST EXTENT OF APPLICABLE LAW, NEITHER WE NOR OUR RELATED PERSONS WILL BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH THE PLATFORM. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS, TIMELINESS, RELIABILITY OR USEFULNESS OF THE PLATFORM. FURTHERMORE, WE DO NOT GUARANTEE THAT THE PLATFORM WILL BE UNINTERRUPTED, OR FREE FROM ERROR, DEFECT, LOSS, DELAY IN OPERATION, CORRUPTION, CYBER ATTACK, VIRUSES, INTERFERENCE, HACKING, MALWARE OR OTHER SECURITY INTRUSION, AND WE AND OUR RELATED PERSONS DISCLAIM ANY LIABILITY RELATING THERETO.
12.1 NO LIABILITY. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER WE NOR THE RELATED PERSONS WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CLAIMS, LIABILITIES, LOSSES, COSTS OR DAMAGES UNDER ANY LEGAL OR EQUITABLE THEORY, WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING ANY DAMAGES FOR LOSS OF PROFITS, USE OF DATA OR LOSS OF GOODWILL, LOSS OF OTHER INTANGIBLES, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES. THIS IS TRUE EVEN IF WE OR OUR RELATED PERSONS HAVE BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
12.2 YOUR REMEDIES. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE PLATFORM IS TO STOP USING THE PLATFORM. YOUR RIGHTS TO RECEIVE A REFUND OR REPLACEMENT PRODUCT PURSUANT TO THESE TERMS CONSTITUTE YOUR SOLE AND EXCLUSIVE REMEDY IN RELATION TO ANY DEFECT.
12.3 LIABILITY CAP. TO THE EXTENT OUR LIABILITY HAS NOT BEEN EXCLUDED OR LIMITED UNDER THESE TERMS, OUR AND OUR RELATED PERSONS’ AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE PLATFORM AND PRODUCTS WILL NOT EXCEED THE TOTAL OF ANY AMOUNTS PAID TO US BY YOU FOR THE RELEVANT PRODUCTS SOLD UNDER THESE TERMS.
Except to the extent prohibited under applicable law, you agree to defend, indemnify and hold us and any of our Related Persons harmless from and against all claims, demands, liabilities, losses, costs and expenses (including attorneys’ fees and costs) arising from, related to or in connection with: (a) your use of, or activities in connection with, the Platform; (b) any violation or alleged violation of these Terms by you or any person who has used your Platform account credentials; and/or (c) a violation by you of any applicable laws, rules or regulations.
14.1 Termination by You. The Terms will remain in full force and effect as long as you continue to access or use the Platform. You may terminate the Terms at any time by discontinuing use of the Platform. Your permission to use the Platform automatically terminates if you violate these Terms.
14.2 Termination or Suspension by Us. We may terminate or suspend any of the rights granted by these Terms and your access to and use of the Platform at any time, without prior notice, and for any reason, including if we believe that you have breached any term of these Terms or have acted inconsistently with your rights or obligations under these Terms. Upon any such termination or suspension, your right to use the Platform will immediately cease, and we may, without liability to you or any third party, immediately deactivate or delete your username, password and account, and all associated materials, without any obligation to provide any further access to such materials, except to the extent we are obligated to provide you access to your health records or required to provide you with continuing care under our applicable legal, ethical or professional obligations to you.
14.3 Reservation of Rights. Subject to applicable law, we reserve the right to maintain, delete or destroy all communications and materials posted or uploaded to the Platform pursuant to our internal record retention and/or content destruction policies.
14.4 Survival. Sections 4 (Intellectual Property; Acceptable Use), 6 (Your Information; Feedback), 7.3 (Disclaimer), 12 (Disclaimer of Warranties), 13 (Limitation of Liability), 14 (Indemnity), 15.4 (Survival), 19 (Governing Law; Dispute Resolution; Arbitration; Class Action Waiver), 20 (Miscellaneous) and 21 (Interpretation) shall survive any termination of these Terms or any closure of the Platform.
15.1 DMCA. We reserve the right to remove any content or any other material available on or through our Platform, at any time, for any reason. We otherwise comply with the provisions of the Digital Millennium Copyright Act (“DMCA”) applicable to Internet service providers (17 U.S.C. § 512, as amended), and respond to clear notices of alleged copyright infringement. The DMCA provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. This Section 16 describes the procedure that should be followed to file a notification of alleged copyright infringement with us.
15.2 Notification of Claimed Copyright Infringement. If you have objections to copyrighted content or material made available on or through our Platform, you may submit a notification to our Designated Agent at firstname.lastname@example.org.
15.3 Notification Requirements. Any notification to us under 17 U.S.C. § 512(c) alleging copyright infringement must include the following information:
15.4 Non-compliant Notifications. Any notice that fails to comply with the above requirements shall not be considered to either provide us with actual knowledge of infringement or make us aware of facts or circumstances from which infringing material or acts are apparent.
16.1 Your Responsibilities. You are responsible for complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports.
16.2 Your Representations and Warranties. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, or are exporting goods to any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
Notwithstanding any other provision of these Terms, we are not liable or responsible to you, nor will we be deemed to have defaulted or breached these Terms, for any failure or delay in fulfilling or performing any part of these Terms, when and to the extent such failure or delay is caused, prevented, restricted or interfered with by any acts or circumstances beyond our reasonable control, including any delays or issues in shipment or by the relevant carrier, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials or telecommunication breakdown, power outage, failures or interruptions on our e-commerce backend services, payment processing services and/or software failures.
18.1 IMPORTANCE. PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND US TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
18.2 Governing Law. These Terms are governed by and shall be construed in accordance with the laws of the State of New York, U.S.A., without regard to its principles of conflicts of law and regardless of your location. You agree to exclusive jurisdiction of the federal and state courts located in New York City, New York, U.S.A., and waive any jurisdictional, venue or inconvenient forum objections to such courts.
18.3 Arbitration Agreement. You and us agree that all claims and disputes relating in any way to your use of our Platform, or arising out of or in connection with these Terms, shall be resolved by binding arbitration, to the fullest extent permitted by applicable law, on an individual basis, except for disputes which can be resolved in small claims court, any dispute in which either party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents, or any dispute already pending at the time you first agree to these Terms. You also agree that any arbitration will take place in New York City, New York.
18.4 Waiver of Jury Trial. IN THE EVENT ARBITRATION IS CONTRARY TO APPLICABLE LAW, YOU AND US WAIVE ANY CONSTITUTIONAL OR STATUTORY RIGHT TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and us are instead electing to have claims and disputes resolved by arbitration. Arbitration is the referral of a claim or dispute to one or more persons charged with reviewing the claim or dispute and making a final binding determination to resolve it instead of having it decided by a judge or jury in court. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction.
18.5 No Class Arbitrations. Class Actions, or Representative Actions. YOU AND US AGREE THAT ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE BROUGHT AS A CLASS OR OTHER TYPE OF REPRESENTATIVE ACTION, WHETHER WITHIN OR OUTSIDE OF ARBITRATION, OR ON BEHALF OF ANY INDIVIDUAL OR OTHER GROUP. UNLESS BOTH YOU AND US AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S) OR DISPUTE. ANY RELIEF AWARDED CANNOT AFFECT OUR OTHER USERS.
18.6 Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Any arbitration between you and us will be initiated through the American Arbitration Association (“AAA”) and will be governed by the AAA Consumer Arbitration Rules. The AAA Rules and filing forms are available at www.adr.org.
19.1 Relationship. These Terms do not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and us.
19.2 Severability. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms shall remain in full force and effect.
19.3 Assignment. You may not assign, transfer or sublicense any or all of your rights or obligations under these Terms without our express prior written consent. We may assign, transfer or sublicense any of our rights or obligations under these Terms without restriction.
19.4 Waiver. Our failure to act with respect to any failure by you or others to comply with these Terms does not waive our right to act with respect to subsequent or similar failures.
19.6 Notifications. Notices to you (including notices of changes to these Terms) may be made via posting to the Website or by email (including in each case via links), or by regular mail.
19.7 Admissibility. Without limitation, 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.
20.1 General. In these Terms: headings are for convenience only and do not affect the interpretation of these Terms; the singular includes the plural and vice versa; words that are gender neutral or gender specific include each gender; where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings; the words “such as,” “including” and similar expressions are not used as, nor are intended to be interpreted as, words of limitation; and no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of these Terms or any part of them.
20.2 References. In these Terms, a reference to: (a) a person includes a natural person, partnership, joint venture, governmental agency, association, corporation or other body corporate; (b) a thing (including a right) includes a part of that thing; (c) a party includes its successors and permitted assigns; (d) a document includes all amendments or supplements to that document; (e) a section, article, clause, term, party, schedule or attachment is a reference to a clause or term of, or party, schedule or attachment to these Terms; (f) a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgment, rule of common law or equity and is a reference to that law as amended, consolidated or replaced; (g) an agreement other than these Terms includes an undertaking, or legally enforceable arrangement or understanding, whether or not in writing; and (h) a monetary amount is in U.S. dollars.
21.1 Address. If you have any questions about these Terms or the Platform, please message us through the Platform or contact us at email@example.com.
21.2 Security. Please note that email communications are not always secure; please do not include credit card information or other sensitive information in any email to us.