TERMS AND CONDITIONS
PLEASE READ THESE MYAMIRA TERMS AND CONDITIONS (THESE “TERMS AND CONDITIONS”) BEFORE USING ANY LICENSOR TECHNOLOGY (AS DEFINED BELOW). BY ACCEPTING THESE TERMS AND CONDITIONS, EITHER BY CLICKING OR TAPPING A BUTTON INDICATING YOUR ACCEPTANCE, EXECUTING AN ORDER FORM OR OTHER DOCUMENT THAT REFERENCES THESE TERMS AND CONDITIONS OR USING ANY LICENSOR TECHNOLOGY, YOU AGREE TO THESE TERMS AND CONDITIONS WITH LUMIRADX UK LTD. (“LICENSOR”). IF YOU ARE ACCEPTING THESE TERMS AND CONDITIONS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM "YOU" AND “YOUR” WILL REFER TO SUCH ENTITY. IF YOU ARE ACCEPTING THESE TERMS AND CONDITIONS AS AN INDIVIDUAL, THE TERMS “YOU” AND “YOUR” WILL REFER TO YOU AS AN INDIVIDUAL. IF YOU DO NOT HAVE SUCH AUTHORITY (IF YOU REPRESENT AN ENTITY), OR IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THESE TERMS AND CONDITIONS AND MAY NOT USE ANY LICENSOR TECHNOLOGY.
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTIONS) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST LICENSOR ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
Licensor reserves the right, at its sole discretion, to change or modify portions of these Terms and Conditions at any time. You may read a current, effective copy of these Terms and Conditions under the “Menu — Legal — Terms and Conditions” section of the MyAmira App (as defined below). Licensor will also notify you of any material changes, either through the MyAmira App user interface, a pop-up notice, email, or through other reasonable means. Your continued use of the Licensor Technology after the date any such changes become effective constitutes your acceptance of the new Terms and Conditions.
For all purposes of these Terms and Conditions, the terms defined below, when used with initial capital letters, will have the following meanings:
(a) "Authorized Testees” means, if you are an entity, your personnel and customers physically on your premises.
(b) “Customer Data” means any data that you input into Licensor Technology or transmit via the Licensor Technology, which may include clinical information related to Tests run using the Instrument.
(c) “Documentation” means the physical and electronic documentation provided or otherwise made available by Licensor in conjunction with the Instrument and/or Software.
(d) “Firmware” means the computer software program(s) embedded in or installed on the Instrument.
(e) “Instrument” means the “MyAmira” diagnostic instrument(s) to which the MyAmira App connects and through which you may run Tests.
(f) “Licensor Technology” means the Instrument, Software and Documentation.
(g) “MyAmira App” means the downloadable “MyAmira” mobile application.
(h) “Software” means
(i) the Firmware and
(ii) MyAmira App, and any Updates to the foregoing as delivered to you by Licensor under these Terms and Conditions, expressly excluding any third-party software.
(i) “Test” means a COVID-19 self-test performed via the Instrument with test kits contemplated by the Documentation.
(j) “Updates” mean maintenance releases, bug fixes, technological fixes, feature enhancements or improvements, theme upgrades and other changes made to and entirely new versions of the Software.
2. LICENSE GRANT AND RESTRICTIONS.
(a) License Grant. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable limited right and license: to have Users operate the Instrument and Software in accordance with Documentation solely to provide medical services, including medical diagnostics, or care to Patients. Customer will not and will not permit any third party to:(a) License Grant. Subject to the terms and conditions of these Terms and Conditions, Licensor hereby grants to you a non-exclusive, non-transferable, non-sublicensable limited right and license to (a) download and install the MyAmira App on your mobile device; and (b) use the Software (i) solely for your own personal, non-commercial use or (ii) if you are an entity, solely for your internal business purposes, in each case, with the Instrument and in accordance with Documentation and these Terms and Conditions. For clarity, the foregoing is not intended to prohibit you from installing the MyAmira App on another device on which you also agreed to these Terms and Conditions. Each instance of these Terms and Conditions that you agree to in connection with downloading the MyAmira App grants you the aforementioned rights in connection with the installation and use of the MyAmira App on one device.
(b) Restrictions. You agree that you will not use the Licensor Technology except to (a) subject to Section 3 below, create testing profiles (each, a “Profile”) for (i) if you are an individual, you and your family (including your minor children) and (ii) if you are an entity, your Authorized Testees and (b) perform Tests for you and your family or, if you are an entity, your Authorized Testees. You will not and will not permit any third party to, directly or indirectly:
(A) permit any individual under 18 years of age to access, use or operate the Licensor Technology;
(B) distribute the Licensor Technology, or any copy thereof, or sublicense or make it available for use by anyone (other than Authorized Testees, if you are an entity);
(C) transfer or sell the Licensor Technology to any third party;
(D) remove, obliterate, obscure, or conceal the proprietary notices or legends which appear on the Licensor Technology;
(E) alter, modify, adapt or create derivative works from the Licensor Technology;
(F) decompile, disassemble, translate, or otherwise reverse engineer the Licensor Technology or any part thereof;
(G) circumvent any technical limitations of the Licensor Technology or access otherwise disabled features or functionalities thereof;
(H) interfere with the proper working of the Licensor Technology or
(I) share or publish the results of any benchmarking or performance testing, and/or compatibility analysis of the Licensor Technology without Licensor’s prior written consent. Unless otherwise expressly authorized herein, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer, or upload for any commercial purposes, any portion of the Licensor Technology, use of or access to the Licensor Technology.
3. YOUR OBLIGATIONS.
(i) immediately notify Licensor of any unauthorized use of your password or account or any other breach of security, and
(ii) ensure that you exit from your account at the end of each session when using the MyAmira App. Licensor will not be liable for any loss or damage arising from your failure to comply with this paragraph.
(b) Compliance with Laws. You will, and if you are an entity will cause Authorized Testees to, comply with all laws (including federal, state and local laws and regulations, orders and ordinances) now or hereafter enacted, of any jurisdiction in which performance occurs or may occur hereunder. Without limitation, you hereby acknowledge that the rights and obligations of these Terms and Conditions are subject to the laws and regulations of the United States relating to the export of products and technical information, and you will comply with all such laws and regulations. You will not export the Software under any circumstances. You will be solely responsible for your violations of any of the foregoing.
(c) Training. The Documentation includes a user manual that provides basic information regarding the Licensor Technology. You must read the Documentation prior to using the Licensor Technology to perform any Tests. If you are an entity, you will also implement appropriate controls to ensure that only Authorized Testees have Tests performed. Licensor has no obligation to provide any installation, training, customization, support, maintenance or other services with respect to the Licensor Technology except as may be provided in a separate written agreement signed by a duly authorized officer of Licensor.
(d) Fees. No fees or payments are due to Licensor merely as a result of you accepting these Terms and Conditions.
4. MOBILE SERVICES AND SOFTWARE.
(a) Mobile Services. The Licensor Technology includes certain services that are available via a mobile device, including
(i) the ability to connect to the Instrument to perform Tests via a mobile device and
(ii) the ability to access certain features and content through the MyAmira App (collectively, the “Mobile Services”). Your wireless service carrier’s standard charges, data rates, and other fees may apply to your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that Licensor may communicate with you regarding Licensor and other entities by SMS, MMS, text message, or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your account information to ensure that your messages are not sent to the person that acquires your old number.
(c) Third-Party Distribution Channels. Licensor makes available the MyAmira App through the Apple App Store, the Google Play Store, or other distribution channels (“Distribution Channels”). If you obtain such Software through a Distribution Channel, you may be subject to additional terms of the Distribution Channel. These Terms and Conditions are between you and Licensor only, and not with the Distribution Channel. To the extent that you utilize any other third-party products and services in connection with your use of the Licensor Technology, you agree to comply with all applicable terms of any agreement for such third-party products and services.
(d) Apple-Enabled Software. With respect to the MyAmira App that is made available for your use in connection with an Apple-branded product (the, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms and Conditions, the following terms and conditions apply:
(e) Google-Sourced Software. The following applies to the MyAmira App you download from the Google Play Store (“Google-Sourced Software”):
(a) you acknowledge that these Terms and Conditions are between you and Licensor only, and not with Google, Inc. (“Google”);
(b) your use of Google-Sourced Software must comply with Google’s then-current Google Play Terms of Service;
(c) Google is only a provider of Google Play where you obtained the Google-Sourced Software;
(d) Licensor, and not Google, is solely responsible for Licensor’s Google-Sourced Software;
(e) Google has no obligation or liability to you with respect to Google-Sourced Software or these Terms and Conditions; and
(f) you acknowledge and agree that Google is a third-party beneficiary to these Terms and Conditions as it relates to Licensor’s Google-Sourced Software.
5. CUSTOMER DATA.
(a) License. You hereby grant to Licensor a non-exclusive, non-sublicensable (except to Licensor’s contractors, consultants and service providers) right and license to
(i) copy, distribute, display, modify and otherwise use the Customer Data, in connection with the provision to you of the Licensor Technology and related support services and other services purchased by you,
(b) Your Responsibilities. You are solely responsible and liable for the accuracy of the Customer Data and, if you are an entity, for any acts or omissions of your Authorized Testees. You may not use or disclose the data and information of any other user of the MyAmira App without their express consent. If you are an entity, you may not use or disclose your Authorized Testees’ data and information without their express consent. FOR THE AVOIDANCE OF DOUBT, (I) YOU AGREE NOT TO SHARE THE DATA AND INFORMATION OF ANOTHER MYAMIRA APP USER WITHOUT THE EXPRESS CONSENT OF SUCH USER AND (II) YOU ARE SOLELY RESPONSIBLE FOR ANY LOSS ARISING AS A RESULT OF YOUR DELETION OR UNINSTALLATION OF THE MYAMIRA APP OR YOUR TRANSFER OF CUSTOMER DATA FROM THE LICENSOR TECHNOLOGY TO YOUR OWN DEVICES OR SYSTEM.
TO THE FULLEST EXTENT ALLOWED BY LAW, (I) LICENSOR DOES NOT MAKE ANY WARRANTIES, WHETHER EXPRESS OR IMPLIED, CONDITIONS, OR REPRESENTATIONS TO YOU, (IF YOU ARE AN ENTITY) ANY OF YOUR AFFILIATES OR ANY OTHER PARTY WITH RESPECT TO THE LICENSOR TECHNOLOGY OR OTHERWISE REGARDING THESE TERMS AND CONDITIONS, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY; AND (II) THE LICENSOR TECHNOLOGY IS PROVIDED “AS IS” AND “AS AVAILABLE” INCLUDING WITH ALL FAULTS AND ERRORS AS MAY OCCUR THEREIN. WITHOUT LIMITING THE FOREGOING, ANY WARRANTY, CONDITION, OR REPRESENTATION, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITH RESPECT TO OPERABILITY, USE, ACCURACY, VALIDITY, MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY EXCLUDED AND DISCLAIMED. LICENSOR DOES NOT WARRANT THAT THE LICENSOR TECHNOLOGY WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR THAT THE LICENSOR TECHNOLOGY WILL OPERATE UNINTERRUPTED OR ERROR-FREE. THE USE OF THE LICENSOR TECHNOLOGY IS AT YOUR SOLE DISCRETION AND RISK AND/OR (IF YOU ARE AN ENTITY) YOUR EMPLOYEES, AGENTS, SUBCONTRACTORS, AUTHORIZED TESTEES, SUCCESSORS, AND ASSIGNS. LICENSOR DOES NOT MAKE ANY WARRANTIES REGARDING THIRD-PARTY SOFTWARE (INCLUDING OPEN SOURCE SOFTWARE). YOU ACKNOWLEDGE AND AGREES THAT THE TERMS OF A THIRD-PARTY SOFTWARE LICENSE MAY OVERRIDE SOME OF THE TERMS OF THESE TERMS AND CONDITIONS. Some states may not allow the exclusion or limitation of warranties, so the above limitation or exclusion may not apply to you. These Terms and Conditions give you specific legal rights and obligations, and you may also have other legal rights or obligations which vary from state to state. YOU ASSUME SOLE RESPONSIBILITY FOR RESULTS OBTAINED FROM THE USE OF THE LICENSOR TECHNOLOGY AND FOR CONCLUSIONS DRAWN FROM SUCH USE. YOU ACKNOWLEDGE THAT THE LICENSOR TECHNOLOGY WAS NOT DESIGNED TO YOUR REQUIREMENTS AND THAT IT IS YOUR RESPONSIBILITY TO ENSURE THAT THE LICENSOR TECHNOLOGY AS DESCRIBED IN THE DOCUMENTATION MEETS YOUR REQUIREMENTS. THE LICENSOR TECHNOLOGY IS INTENDED ONLY AS A DIAGNOSTIC AID AND IS NOT A SUBSTITUTE FOR THE EXPERTISE AND JUDGEMENT OF PHYSICIANS OR OTHER HEALTHCARE PROFESSIONALS. ALL INFORMATION IS PROVIDED ON THE BASIS THAT THE HEALTHCARE PROFESSIONALS RESPONSIBLE FOR PATIENT CARE WILL RETAIN FULL AND SOLE RESPONSIBILITY FOR DECIDING ANY CARE OR TREATMENT TO PRESCRIBE OR DISPENSE FOR ALL PATIENTS AND IN PARTICULAR WHETHER THE USE OF INFORMATION PROVIDED BY THE LICENSOR TECHNOLOGY IS SAFE, APPROPRIATE OR EFFECTIVE FOR ANY PARTICULAR PATIENT OR IN ANY PARTICULAR CIRCUMSTANCES.
7. LIMITATION OF LIABILITY.
LICENSOR’S AND ITS THIRD-PARTY VENDORS’ MAXIMUM TOTAL LIABILITY FOR ALL MATTERS ARISING UNDER OR RELATED TO THESE TERMS AND CONDITIONS, REGARDLESS OF THE FORM OF ACTION, IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE TOTAL FEES PAID TO LICENSOR FOR THE INSTRUMENT GIVING RISE TO THE CLAIM OR, IF GREATER, ONE HUNDRED U.S. DOLLARS ($100). IN ANY EVENT, NEITHER LICENSOR NOR ANY OF ITS THIRD-PARTY VENDORS WILL UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER INDIRECT DAMAGES IN CONNECTION WITH ANY MATTER ARISING UNDER OR RELATED TO THESE TERMS AND CONDITIONS, EVEN IF LICENSOR WAS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. Some states may not allow the exclusion or limitation of liability or certain damages, so the above limitation or exclusion may not apply to you. These Terms and Conditions give you specific legal rights and obligations, and you may also have other legal rights or obligations which vary from state to state.
8. DISPUTE RESOLUTION BY BINDING ARBITRATION.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
(a) Agreement to Arbitrate. This Dispute Resolution by Binding Arbitration section is referred to in these Terms and Conditions as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Licensor, whether arising out of or relating to these Terms and Conditions (including any alleged breach thereof), the Licensor Technology, any advertising, or any aspect of the relationship or transactions between us, will be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by accepting these Terms and Conditions, you and Licensor are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
(b) Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND LICENSOR AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND LICENSOR 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), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
Pre-Arbitration Dispute Resolution. Licensor is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at firstname.lastname@example.org. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Licensor should be sent to 221 Crescent Street, 5th Floor Waltham, Massachusetts 02453 USA (“Notice Address”). The Notice must
(i) describe the nature and basis of the claim or dispute and
(ii) set forth the specific relief sought. If Licensor and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Licensor may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Licensor or you will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Licensor is entitled.
(c) Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, https://www.adr.org/consumer. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms and Conditions as a court would. All issues are for the arbitrator to decide, including issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms and Conditions and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless Licensor and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by AAA. If your claim is for $10,000 or less, Licensor agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
(d) Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Licensor will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Licensor will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Licensor will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
(e) Confidentiality.. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
(f) Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement will be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of these Terms and Conditions will continue to apply.
(g) Future Changes to Arbitration Agreement. Notwithstanding any provision in these Terms and Conditions to the contrary, Licensor agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Service, you may reject any such change by sending Licensor written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms and Conditions (or accepted any subsequent changes to these Terms and Conditions).
NOTWITHSTANDING ANYTHING TO THE FOREGOING IN THIS ARBITRATION AGREEMENT, IF YOU REPRESENT A COMPANY OR OTHER ENTITY, OR ARE ACCEPTING THESE TERMS AND CONDITIONS IN ANY CAPACITY OTHER THAN AS AN INDIVIDUAL REPRESENTING YOURSELF (OR AN INDIVIDUAL FOR WHOM YOU ARE THE PARENT OR GUARDIAN, AS APPLICABLE), SUBSECTIONS (A), (D) AND (E) ABOVE ARE HEREBY DELETED AND REPLACED IN THEIR ENTIRETY WITH THE CORRESPONDING PROVISIONS BELOW AND SUBSECTION (H) ABOVE DOES NOT APPLY TO YOU.
(a) Agreement to Arbitrate. This Dispute Resolution by Binding Arbitration section (including subsections (a) through (g)) is referred to in these Terms and Conditions as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Licensor, whether arising out of or relating to these Terms and Conditions (including any alleged breach thereof), the Licensor Technology, any advertising, or any aspect of the relationship or transactions between us, will be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. You agree that, by accepting these Terms and Conditions, you and Licensor are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Notwithstanding the foregoing, this Arbitration Agreement will not preclude either party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate; provided that any other relief will be pursued through an arbitration proceeding pursuant to this Arbitration Agreement.
(d) Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Commercial Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. All issues are for the arbitrator to decide, including issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms and Conditions and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless Licensor and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by AAA. If your claim is for $10,000 or less, Licensor agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
(e) Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. Any payment of attorneys’ fees will be governed by the AAA Rules.
9. RESERVATION OF RIGHTS AND OWNERSHIP; TRADEMARKS.
As between the parties, the Software and all proprietary and intellectual property rights therein are at all times the property of Licensor, and you will have no right, title or interest therein except as expressly provided herein. Any rights not expressly granted in Section 2 above are reserved by Licensor. The Software is the proprietary and confidential property of Licensor and its licensors. You will keep confidential the Software and will not, and if you are an entity will cause your Authorized Testees not to, use any part of the Licensor Technology in any manner other than as expressly authorized under these Terms and Conditions, in accordance with the procedures and guidelines set forth in the Documentation, or otherwise in writing by Licensor. If you are an entity, you are liable for any of your Authorized Testees’ breach of or non-compliance with these Terms and Conditions or the Documentation. Licensor’s name and logos are trademarks and service marks of Licensor (collectively the “Licensor Trademarks”). Other company, product, and service names and logos used and displayed via the Software or an Instrument may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Licensor. Nothing in these Terms and Conditions should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Licensor Trademarks, without Licensor’s prior written permission in each instance. All goodwill generated from the use of Licensor Trademarks will inure to Licensor’s exclusive benefit.
10. TERM AND TERMINATION.
The Software and Documentation are licensed to you during the time the Instruments are used by you, subject to termination as set forth herein. You agree that Licensor, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the MyAmira App and remove and discard any content within the Licensor Technology, for any reason, including for lack of use or if Licensor believes that you have violated or acted inconsistently with the letter or spirit of these Terms and Conditions. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Licensor Technology, may be referred to appropriate law enforcement authorities. Licensor may also in its sole discretion and at any time discontinue providing the Software, or any part thereof, with or without notice. You agree that any termination of your access to the Software under any provision of these Terms and Conditions may be effected without prior notice, and acknowledge and agree that Licensor may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the MyAmira App. Further, you agree that Licensor will not be liable to you or any third party for any termination of your access to the Software. Upon any termination of these Terms and Conditions the licenses granted by Licensor under these Terms and Conditions will terminate, and you will immediately
(i) cease all use of the Licensor Technology,
(ii) destroy all copies of the Documentation and
(iii) delete or remove all Customer Data from the MyAmira App.
Upon such termination, all rights and obligations of the parties under these Terms and Conditions will cease except that the provisions of Sections 6 through 11 (inclusive) will survive.
You may not assign these Terms and Conditions, or sublicense any of the rights granted herein, in whole or in part, without the prior written consent of Licensor, which consent may be withheld at the sole discretion of Licensor. Any attempted assignment, delegation or transfer in violation hereof will be null and void. Licensor may freely assign these Terms and Conditions. Subject to the foregoing, these Terms and Conditions will be binding on the parties and their successors and assigns. These Terms and Conditions contain the entire understanding of the parties about its subject matter. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations. No provision or part of these Terms and Conditions or remedy hereunder may be waived except by a writing signed by the parties or, if an entity, a duly authorized representative of the party making the waiver. Any such waiver will be narrowly construed to apply only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of these Terms and Conditions will not be deemed a waiver of future enforcement of that or any other provision. Nothing in these Terms and Conditions will be construed to place Licensor and you in an agency, employment, franchise, joint venture, or partnership relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties. Neither party will represent to the contrary, either expressly, implicitly or otherwise. In the event that any provision of these Terms and Conditions is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, to the extent consistent with the intent of the parties as of the effective date hereof. If any provision or part of these Terms and Conditions will, to any extent, be or become invalid, illegal or unenforceable, the remainder of these Terms and Conditions will continue in effect, and every other provision of these Terms and Conditions will remain valid and enforceable to the full extent permitted by applicable law. In such event, the invalid or unenforceable provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, to the extent consistent with the intent of the parties as of the effective date hereof. These Terms and Conditions will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of laws principles, and specifically excluding from application to these Terms and Conditions the United Nations Convention on the International Sale of Goods. With respect to any disputes or claims not subject to arbitration, as set forth above, any legal proceedings under or related to these Terms and Conditions will be subject to the exclusive jurisdiction of the state and federal courts located in the Boston, Massachusetts, and each party submits to the personal jurisdiction of, and waives any objection against jurisdiction by, such courts. The Software is made available to the U.S. government with “RESTRICTED RIGHTS.” Use, duplication, or disclosure by the U.S. government is subject to the restrictions contained in 48 CFR 52.227-19 and 48 CFR 252.227-7013 et seq. or its successor. Access or use of the Licensor Technology (including the Software) by the U.S. government constitutes acknowledgement of Licensor’s proprietary rights in the Licensor Technology (including the Software). Please contact us at email@example.com or 1-888-586-4721 to report any violations of these Terms and Conditions or to pose any questions regarding these Terms and Conditions or the Licensor Technology.