Last Updated: January 19, 2018
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
BY ACCESSING, UPLOADING, OR USING THE UPDATES, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE UPDATES, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS (THESE “TERMS”). IF YOU DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO UPLOAD OR DOWNLOAD THE UPDATES. YOUR USE OF THE UPDATES, AND COMPANY PROVISION OF THE UPDATES TO YOU, CONSTITUTES AN AGREEMENT BY POLYSCIENCE AND BY YOU TO BE BOUND BY THESE TERMS.
All disputes arising under these Terms will be resolved by binding arbitration, and BY ACCEPTING THESE TERMS, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 11).
1. Eligibility. By agreeing to these Terms, you represent and warrant to us that your registration and your use of the Update is in compliance with any and all applicable laws and regulations.
2. Prices. All Updates are provided free of charge. Company reserves the right to restrict delivery to addresses within the United States.
3. Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Update or otherwise (“Feedback”), then you hereby assign to Company all right, title, and interest in and to the Feedback, and any intellectual property rights subsisting in the Feedback with no compensation to you for such assignment.
4. Ownership; Proprietary Rights. The Updates, including, but not limited to, visual interfaces, graphics, design, compilation, information, data, computer code (including source
code or object code), products, software, services, and all other elements of the Update (“Materials”) provided by Company are the sole property of Company include valuable trade secrets and are protected by intellectual property and other laws. All Materials included in the Update are the property of Company and its third-party licensors. Except as expressly authorized by Company you may not make use of the Materials. Company reserves all rights to the Materials not granted expressly in these Terms.
5. Prohibited Conduct. BY USING THE UPDATE YOU AGREE NOT TO:
a. use the Update for any illegal purpose or in violation of any local, state, national, or international law;
b. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
c. interfere with security-related features of the Update, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Update except to the extent that the activity is expressly permitted by applicable law;
d. Demonstrate, copy, sell, market, or otherwise transfer the access granted under these Terms or any right or ability to view, access, or use any Materials;
e. Modify, reuse, disassemble, decompile, reverse engineer, or otherwise translate the Updates or any portion thereof;
f. Publish or otherwise disclose information related to the performance or quality of the Updates to any third party; or
g. Attempt to do any of the acts described in this Section or assist or permit any person in engaging in any of the acts described in this Section.
6. Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes, to which you will be bound by virtue of utilizing the Update. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
7. Term, Termination and Modification of the Update
a. Term. These Terms are effective beginning when you accept the Terms or download, install, access or use the Update, and ending when terminated as set for in Section 7(b).
b. Termination. If you violate any provision of these Terms, your account and these Terms automatically terminate. In addition, Company may, at its sole discretion, terminate these Terms, your account, or suspend or terminate your access to the Update at any time for any reason or no reason, with or without notice. You may de-
activate your account and terminate these Terms at any time within your account on the website or by contacting Company customer service. Note that your account data may not be deleted upon account de-activation.
c. Effect of Termination. Upon termination of these Terms: (i) your license rights will terminate and you must immediately cease all use of the Update; and (ii) you will no longer have access to your account.
d. Modification of the Update. Company reserve the right to modify or discontinue the Update at any time (including by limiting or discontinuing certain features of the Update), temporarily or permanently, without notice to you. Company will have no liability whatsoever on account of any change to the Update or any suspension or termination of your access to or use of the Update.
8. Indemnity. You are responsible for your use of the Update, and you will defend and indemnify Company, including its parent, subsidiaries, related entities and its affiliates, and their respective officers, directors, employees, consultants, subsidiaries and agents from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs (“Claims”) arising out of or connected with: (a) your use of, or misuse of, the Update; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those Claims. This Section 8 is unenforceable and/or inapplicable where limited or prohibited by law (e.g., within the State of New Jersey).
9. Disclaimers; No Warranties
THE UPDATES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE UPDATES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. COMPANY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE UPDATE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE UPDATE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. COMPANY DO NOT WARRANT THAT THE UPDATE OR ANY PORTION OF THE UPDATE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE UPDATE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND COMPANY DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE UPDATE. YOU UNDERSTAND AND AGREE THAT YOU USE THE UPDATE, AND ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE UPDATE AND ANY
ASSOCIATED UPDATES OR UPDATES, AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPANY PRODUCTS, COMPUTER SYSTEM OR MOBILE DEVICE(S) USED IN CONNECTION WITH THE UPDATE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE UPDATE OR THE DOWNLOAD OR USE OF THE MATERIALS OR CONTENT.
NOTWITHSTANDING THE FORGOING COMPANY DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT COMPANY IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
10. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE COMPANY ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE UPDATE OR ANY MATERIALS OR CONTENT ON THE UPDATE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY COMPANY ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE COMPANY ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE UPDATE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE AMOUNT YOU HAVE PAID TO POLYSCIENCE FOR ACCESS TO AND USE OF THE UPDATE.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THIS SECTION 10 IS UNENFORCEABLE AND/OR INAPPLICABLE WHERE LIMITED OR PROHIBITED BY LAW (E.G., WITHIN THE STATE OF NEW JERSEY).
11. Dispute Resolution and Arbitration
a. Generally. In the interest of resolving disputes between you and Company in the most expeditious and cost effective manner, you and Company agree that every dispute arising in connection with these Terms or your (or any Authorized Users’) use of the
Update will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
b. Exceptions. Despite the provisions of Section 9, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
c. Arbitrator. Any arbitration between you and Company will be settled under the Federal Arbitration Act, and governed by the rules in place for consumer disputes (“AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879.
d. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”).
(i) The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Company must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Company will pay you the amount awarded by the arbitrator, if any.
(ii) Any arbitration hearing will take place at a location to be agreed upon in Los Angeles County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure
11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Company for all amounts previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
e. No Class Actions. YOU AND COMPANY, AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Company agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
f. Modifications to this Arbitration Provision. If Company makes any future change to this arbitration provision, other than a change to Company, address for Notice, you may reject the change by sending us written notice within 30 days of the change to Company address’ Notice, in which case your account will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
g. Enforceability. If Section 11 is found to be unenforceable, then the entirety of this Section 11 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 12 will govern any action arising out of or related to these Terms.
will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
a. Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Company submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Los Angeles County, California for resolution of any lawsuit or court proceeding permitted under these Terms.
b. Additional Terms. Your use of the Update is subject to all additional terms, policies, rules, or guidelines applicable to the Update or certain features of the Update that we may post on or link to from the Update (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
d. Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Updates of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Update or to receive further information regarding use of the Update.