DOSIME DEVICE TERMS OF SERVICE
THESE TERMS AND CONDITIONS (THESE "Terms") ARE A LEGAL CONTRACT BETWEEN YOU AND DOSIME, INC. (“Company”, “We” or “Us”). WE PROVIDE (1) A WEBSITE LOCATED AT www.dosime.com AND THE ASSOCIATED SITES OF THE COMPANY, ITS SUBSIDIARIES AND AFFILIATED COMPANIES (COLLECTIVELY, THE "SITES"), WHICH IN EACH CASE ARE USED IN CONNECTION WITH THE DOSIME® DEVICE THAT DETECTS AND REPORT REAL-TIME RADIATION EXPOSURE IN ITS ENVIRONMENT (THE “DOSIME DEVICE”), (2) SERVICES ACCESSIBLE THROUGH A SITE (THE "WEB APP") AND SOFTWARE THAT MAY BE DOWNLOADED TO A MOBILE DEVICE TO ACCESS THE SERVICES ("MOBILE APPLICATION"), ALL FOR USE IN CONNECTION WITH THE DOSIME DEVICE. COLLECTIVELY, THE SITES, WEB APP AND MOBILE APPLICATIONS ARE REFERRED TO AS THE “SERVICES”).
BY CLICKING “I AGREE” OR USING THE SERVICES, YOU ARE AGREEING TO ALL THE TERMS; IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT CLICK “I AGREE” AND DO NOT ACCESS OR OTHERWISE USE ANY OF THE SERVICES.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH US. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
The Dosime Device is a hybrid smart home and wearable product that detects and reports real-time radiation exposure in its environment. The device was designed to address the challenges of healthy living amidst radiation – namely, that radiation can’t be detected by the senses. The accompanying Mobile Application provides an immediate assessment of the radiation present in the homes, buildings and spaces we live, work and play that can potentially impact our health without our knowledge. The Dosime Device empowers people and communities to protect themselves and each other. It measures ionizing radiation exposure and tracks cumulative exposure over time. The device can be used in two modes – home mode when it’s docked in its cradle and charging, and wearable mode when it’s undocked. The unit connects to your home network via wireless connectivity. Through the Web App and Mobile Application, you can access accurate, reliable and easy-to-understand exposure information on demand. If the Dosime Device detects exposure levels that exceed specified limits, the device immediately flashes with a visual alarm. Notifications can also alert you of specified changes to dose rate conditions and the device battery level.
By using the Services, you represent, acknowledge, confirm and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old (a “Minor”), that you are using the Services with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to use the Services and agree to its Terms. If you are a parent or legal guardian of a Minor, you hereby agree to bind the Minor to these Terms and to fully indemnify and hold us harmless if the Minor breaches any of these Terms. If you are not at least 13 years old, you may not use the Services at any time or in any manner or submit any information to the Dosime Device or the Services.
The Dosime Device provides content through the Services that is copyrighted and/or trademarked work of our Company or our third-party licensors and suppliers or other parties (collectively, the “Materials”). Materials may include logos, graphics, video, images, text, software and other content.
Subject to the terms and conditions of, and your compliance with, these Terms, we hereby grant you a limited, personal, non-exclusive and non-transferable license to use and display the Materials and to use the Services solely for your personal use and only in conjunction with a Dosime Device. Except for the foregoing license, you have no other rights in the Services or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Services or Materials in any manner.
If you breach any of these Terms, the above license will terminate automatically and you must immediately destroy any downloaded or printed Materials and cease all further use of the Services.
We may make changes to, suspend or discontinue the Services offered at any time with or without notice. We are not liable to you or to any third party for any modification, suspension, or discontinuance of the Services or any part thereof. We may also change, update, or add or remove provisions of these Terms, at any time by posting the updated Terms on this Site and by obtaining your assent to the updated Terms when you sign-in. If you do not agree with any of the updated Terms, you must stop using the Services.
We make Mobile Applications available to access the Services via a mobile device. To use the Mobile Application you must have a mobile device that is compatible with the mobile service. We do not warrant that the Mobile Application will be compatible with your mobile device. We do not warrant, and explicitly disclaim, the compatibility of the Mobile Application with other applications you may download and/or operate on your mobile device. Other applications may interact with the Mobile Application in unpredictable ways, and we do not warrant against malfunctions caused by such interactions. We hereby grant to you a non-exclusive, non-transferable, revocable license to use an object code copy of the Mobile Application for one registered account on one mobile device owned or leased solely by you, for your personal use in connection with your Dosime Device. The foregoing license grant is not a sale of the Mobile Application or any copy thereof, and we and our third party licensors or suppliers retain all right, title, and interest in and to the Mobile Application (and any copy of the Mobile Application). Standard carrier data charges may apply to your use of the Mobile Application.
The following additional terms and conditions apply with respect to any Mobile Application that we provide to you designed for use on an Apple mobile device running on the iOS operating system (an “iOS App”):
- You acknowledge that these Terms are between you and us only, and not with Apple, Inc. (“Apple”).
- Your use of Company’s iOS App must comply with Apple’s then-current App Store Terms of Service.
- We, and not Apple, are solely responsible for our iOS App and the Services and Content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to our iOS App.
- You agree that we, and not Apple, are responsible for addressing any claims by you or any third-party relating to our iOS App or your possession and/or use of our iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to us as provider of the iOS App.
- You agree that we, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to our iOS App or your possession and use of our iOS App.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
- You agree to comply with all applicable third-party terms of agreement when using our iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
- The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as they relate to your license of Company’s iOS App. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to your license of the iOS App as a third-party beneficiary thereof.
The following additional terms and conditions apply with respect to any Mobile Application that we provide to you designed for use on an mobile device running on the Android operating system (an “Android App”):
- You acknowledge that these Terms are between you and us only, and not with Google, Inc. (“Google”).
- Your use of Company’s Android App must comply with Google’s then-current Android Market Terms of Service.
- Google is only a provider of the Android Market where you obtained the Android App. we, and not Google, are solely responsible for Company’s Android App and the Services and Content available thereon. Google has no obligation or liability to you with respect to Company’s Android App or these Terms.
- You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to Company’s Android App.
To register with us, you must submit the information through the registration page as prompted on the Mobile Application or Site, including your name and email address. You may also have the ability to provide additional optional information, such as phone number, and sub account information, which is not required to register for an account but may be necessary to provide you with full Services or helpful to us in providing you with a more customized experience when using the Site or its Services. As part of the registration process, you will create a password that will allow you to log-on to the Service (the “Company Password”).
You are responsible for maintaining the confidentiality of your Company Password (collectively, "Passwords), and you are responsible for all activities that occur on your account. You agree not to share your Passwords, let others access or use your Passwords or do anything else that might jeopardize the security of your Passwords. You agree to notify us if any of your Passwords is lost, stolen, if you are aware of any unauthorized use of your Passwords or if you know of any other breach of security in relation to the Service.
All the information that you provide when registering for an account and otherwise through the Site must be accurate, complete and up to date. You may change, correct or remove any information from your account by either logging into your account directly and making the desired changes.
Connectivity and Other Requirements.
For the Dosime Device to operate with the Services, you must have a working broadband Internet connection and either a wired internet connection or a wireless router (802.11 b/g/n), a power outlet (for the Company Device to be plugged-in to charge), a supported mobile device (to use the Mobile Application), a supported web browser and other hardware, software, equipment or items specified by Company. The Company home mode services will not be accessible without a working wireless network in your home that is positioned to communicate reliability with the Company and always-on broadband internet access in your home with bandwidth sufficient to support the number of Dosime Device you use.
You are responsible for having all required software, hardware and other system elements and making sure that they are compatible and properly configured. You acknowledge that (a) we cannot provide the Services properly if the requirements and compatibility are not been met, and (b) you will not receive signals from your Dosime Device when the product’s Internet connection or power is lost, not operating property, has been cut, or interfered with, or the device is damaged or destroyed.
We care about the integrity and security of our users’ personal information. We use what we consider to be standard industry practices when it comes to security. Despite taking these steps, we cannot promise or guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
Although the Services are accessible worldwide, the Dosime Device and the Services are not available to all persons or in all countries, including persons and countries prohibited by US law. If you are accessing or using the Services from an unsupported country, you do so on your own initiative and you are solely responsible for complying with applicable local laws in your country. To the extent permissible by law, we accept no responsibility or liability for any damage or loss caused by your accessing or using the Services in an unsupported country.
Nature and Limitations of Company Services.
The Services are intended to provide information for you to decide whether to act on an event or notification. While we intend for the Services to be highly reliable and available, they will not be without interruption, including, without limitation, due to reasons such as no or weak wireless signal, loss of Internet connectivity, power outages, equipment failure or breakdown, telecommunication service provider failures, and mobile carrier issues. We are not liable or responsible for any harm, liability, loss or damages due to causes beyond our reasonable control or for any acts, errors or omissions of third parties or for any act, error or omission taken by anyone (including you) in response to the information provided through the Services or that is not provided for any reason.
We reserve the right to establish terms and limitations on the amount of data from the Dosime Device that may be stored via the Services and the length of time it is stored. Please check our Sites for further details.
No Life-Safety or Critical Uses of the Services.
The Dosime Device and Services are not intended for emergency responders or use in nuclear power, commercial, airport, security, industrial, military or medical settings or applications or any life safety, critical purpose, or other application or situation where the use or failure of the products or Services may lead to death, bodily injury, damage to person or property or environmental damage. YOU ACKNOWLEDGE THAT THE DOSIME DEVICE AND SERVICES ARE NOT A THIRD PARTY MONITORED NOTIFICATION SYSTEM AND THAT DOSIME DOES NOT MONITOR ALERTS OR NOTIFICATIONS AND WILL NOT DISPATCH EMERGENCY AUTHORITIES IN THE EVENT OF AN EMERGENCY. All notifications of excessive radiation exposure or other potentially life threatening and emergency events should be directed to the appropriate response services.
The Dosime Device and Services provide you with information about the environment in which the device is being used (“Environmental Information”). All Environmental Information is provided “as is” and “as available”. We cannot guarantee that it is correct or up to date. In cases where it is critical, accessing Environmental Information through the Services is not a substitute for the proper authorities determining the information themselves.
Even through your Dosime Device includes radiation sensing capabilities, you acknowledge and/or agree that: (a) the number of devices and their placement, and ensuring they have sufficient power and are properly working, factor into their effectiveness, (b) you have sole responsibility for your own safety and property; and (c) any radiation detection capabilities of the Dosime Device are for information purposes only.
You have the option to allow us to access to your mobile location while using the Web App. If you elect to allow us to access your mobile location and we are connected to your mobile device, we will associate your mobile location with your radiological data. If you choose not to allow us to access your mobile location, or your Dosime Device is not connected to your mobile device, your mobile location will not be associated with your radiological data.
Paid Extended Warranty and Subscriptions and Purchases.
Certain items or services, such as extended product warranty (“Extended Warranty”) and cloud storage, require the payment of additional charges (the “Additional Products and Services”). The terms and conditions relevant to the Extended Warranty and the Additional Products and Services and the fees and charges are set forth on the Sites.
Dosime Device Transfers.
If you transfer your Dosime Device to a new owner, your right to use the Services with respect to that device will automatically terminate, and the new owner will have no right to use the Dosime Device or Services under your account and will need to register for a separate account with us.
By using the Services, you consent to receiving electronic communications from Company. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Services and products and services of Company and its advertisers and business partners. These electronic communications are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
Submissions and Unauthorized Activities.
The information, opinions, messages, comments, photos, videos, graphics, sounds and other content or material that you submit, upload, post or otherwise make available on or through the Services, as well as the terms prohibiting various activities and behaviors in your use of the Services are governed by these terms of service.
Dosime is a trademark of Dosime, Inc. in the United States and/or other countries. Other trademarks, names and logos on or available through the Services are the property of their respective owners.
Unless otherwise specified in these Terms, all technology and intellectual property available or appearing on or through any of the Services, including the Mobile Application, information, software, documents, services, content, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of Company or its licensors. All rights not expressly granted herein to you are reserved by Company. There are no implied rights. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
The Mobile Application and other software and items and materials that are provided to you through the Services and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, if you are a government entity, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights are reserved under the copyright laws of the United States.
You shall not directly or indirectly do any of the following: (i) modify, disassemble, decompile or reverse engineer any of the software used to provide or that constitutes the Services, except to the extent that this restriction is expressly prohibited by applicable law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Services to any third-party or use the Services on a time sharing basis or to provide any radiation detection or other services for any third party; (iii) make any copies of the software used to provide the Services; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Services, features that prevent or restrict use or copying of any content accessible through the Services, or features that enforce limitations on use of the Services; (v) delete the copyright and other proprietary rights notices on the Services; (vi) attempt to access, monitor or use radiation detection products of other Dosime Device customers through the Services; (vii) use the Services in connection with accessing or monitoring other device; (viii) access the Services in order to build a similar or competitive product or service; (ix) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer or communication network, computer, handheld mobile device, data, the Services, Dosime Device or any other hardware, software, system, device or property; (x) interfere with, disrupt, or attempt to gain unauthorized access to, the servers or networks connected to the Services or violate the regulations, policies, or procedures of such networks; (xi) remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) which may be contained in or displayed in connection with the Services.
You acknowledge that we may from time to time issue new releases or versions of the software for the Services, including, updates and upgrades. We may provide these new releases or versions wirelessly to your device. You agree that we may automatically download and electronically install software on your mobile device and the Dosime Device. You hereby consent to such wireless and automatic downloading and installation on your mobile device, and agree that these Terms will apply to all subsequent versions for your mobile device and the end user license agreement will apply to all subsequent versions for your Dosime Device. You acknowledge that software updates may be critical for continued optimal function of your device, and that failure to implement software updates may cause function failures in your device.
Insurance; Waiver of Subrogation.
You agree that Company is not an insurer and that we are not providing you with insurance of any type. The amounts you pay Company are not insurance premiums and are not related to the value of your property, anyone else’s property located in your premises or any risk of loss at your premises. Instead, the amounts we charge are based solely upon the value of the equipment and the Services that we provide and upon the limited liability we assume under these Terms. If you want insurance to protect against any risk of loss, damage, injury or harm to persons or property, you must purchase it from an insurance company. In the event of any loss, damage, harm or injury, you will look exclusively to your insurer and not to us to compensate you or anyone else. You release and waive for yourself and your insurer all subrogation and any other rights to recover against Company arising as a result of the payment of any claim for loss, damage, harm or injury.
Disclaimer of Warranties; Indemnity.
The limited warranty for the Dosime Device is as set forth in the product’s user manual.
COMPANY, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THE SERVICES. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, AND MATERIALS AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS AND DOSIME DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SATISFACTORY QUALITY AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. Company does not provide any warranties against viruses, spyware or malware that may be installed on your mobile device or computer.
Our Company’s equipment and Services do not cause and cannot eliminate the radiation they are intended to detect. They are merely monitoring and detection tools. We make no guaranty or warranty that the Dosime Device or Services will detect or alert you to unsafe levels of radiation or their consequences. We do not undertake any risk that you or your property or the person or property of others, may be subject to injury, damage or risk of loss if such an event occurs. The allocation of risk remains with you, not us. You release, waive, discharge and promise not to sue or bring any claim of any type against us for loss, damage or injury relating in any way to the Dosime Device or Services.
Company and its licensors and suppliers make no warranty that defects will be corrected or that the Services: (i) will meet your needs or requirements; (ii) will be compatible with your home network, computer or mobile device; (iii) will be available on an uninterrupted, timely, secure, or error-free basis; (iv) will be accurate or reliable; or (v) will give notifications at any given time or at all. No advice or information, whether oral or written, obtained by you from us or though the Services shall create any warranty.
You acknowledge that no detector can provide protection or guarantee prevention of loss, injury or harm. Causes of radiation are unpredictable and unsafe levels of radiation cannot be detected by a system or device without being physically present within it in order to measure it. Human error is always possible, and how you act in response to an alert is outside the control of Company. You may not receive alert notifications or signals if communications or power is interrupted for any reason.
YOU AGREE THAT YOU WILL NOT RELY ON THE SERVICES FOR ANY FIRST RESPONDER, NUCLEAR POWER, AIRPORT, SECURITY, COMMERCIAL, INDUSTRY, MILITARY, MEDICAL, LIFE SAFETY OR CRITICAL PURPOSES. MOBILE NOTIFICATIONS REGARDING THE STATUS AND ALARMS ON YOUR DOSIME DEVICE ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY.
If any other person, including your subrogating insurer, makes any claim or files a lawsuit against US in any way relating to the Dosime Device or Services, you shall indemnify, defend and hold us harmless from the claim or lawsuit, including the payment of all damages, expenses, costs and attorneys’ fees. Your duty to defend is separate and distinct from your duty to indemnify and hold harmless, and arises upon the assertion of a claim or demand against us, and applies regardless of whether we are found liable or whether we have incurred any expense.
Limitation of Liability.
IN NO EVENT SHALL COMPANY BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF COMPANY KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE.
COMPANY’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO ANY OF THE SERVICES OR THE PRODUCTS, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, WILL NOT EXCEED THE FEES ACTUALLY PAID BY YOU TO COMPANY OR COMPANY’S AUTHORIZED RESELLER FOR THE SERVICES OR THE PRODUCT AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. COMPANY DISCLAIMS ALL LIABILITY OF ANY KIND OF COMPANY’S LICENSORS AND SUPPLIERS.
These limitations apply to the maximum extent permitted by law and notwithstanding any failure of the essential purpose of these Terms or any limited remedy hereunder.
Time Limit to Bring Claims.
No suit or action may be brought against Company more than one year after the date of the incident that resulted in the loss, injury or damage, or the shortest duration permitted under applicable law if greater than one year.
Local Laws; Export Control.
Company controls and operates the Services from its headquarters in the United States of America and the Materials may not be appropriate or available for use in other locations. If you use the Services outside the United States of America, you are responsible for following applicable local laws.
Unsolicited Idea Submission Policy.
The Company does not accept or consider unsolicited ideas, including without limitation, ideas for new or improved products or technologies, product enhancements or product names. Please do not submit any unsolicited ideas, suggestions or other works (“submissions”) in any form to Company or any of its employees. The sole purpose of this policy is to avoid potential misunderstandings or disputes when Company’s products might seem similar to ideas submitted to Company. If, despite our request that you not send us your ideas, you still submit them, then regardless of what your email or letter says, the following terms shall apply to your submissions:
You agree that: (1) your submissions and their contents will automatically become the property of Company, without any compensation to you; (2) Company may use or redistribute the submissions and their contents for any purpose and in any way; (3) there is no obligation for Company to review the submission; and (4) there is no obligation to keep any submissions confidential.
Dispute Resolution and Arbitration; Class Action Waiver.
Please read this carefully. It affects your rights.
Most customer concerns can be resolved quickly and to a customer’s satisfaction by contacting us at email@example.com. This provision facilitates the prompt and efficient resolution of any disputes that may arise between you and Company. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.
Please read this provision carefully. It provides that all Disputes (as defined below) between you and us shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees).
For the purpose of this provision, “Company” means Dosime, Inc. and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and Company regarding any aspect of your relationship with Company, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as Company’s licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give Company an opportunity to resolve the Dispute. You must commence this process by mailing written notification to Company. That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If Company does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or Company may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this provision by mailing written notification to Company. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with Company through arbitration. Your decision to opt-out of this Arbitration provision will have no adverse effect on your relationship with Company. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
If this provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or Company may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because the Services and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or Company may initiate arbitration in either San Francisco, California or the federal judicial district that includes your billing address. In the event that you select the federal judicial district that includes your billing address, Company may transfer the arbitration to San Francisco, California if it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.
Payment of Arbitration Fees and Costs – Company will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with Company as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and Company specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Site can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
You understand and agree that by entering into this Agreement you and Company are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this provision, you and Company might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
If any clause within this provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this provision, and the remainder of this provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire provision will be unenforceable and the Dispute will be decided by a court.
This provision shall survive the termination of your service with Company or its affiliates. Notwithstanding any provision in this Agreement to the contrary, we agree that if Company makes any change to this provision (other than a change to the Notice Address), you may reject any such change and require Company to adhere to the language in this provision if a dispute between us arises.
Term and Termination.
These Terms continue in effective while you continue to access and use the Services. At any time, Company may (i) suspend or terminate your rights to access or use the Services, or (ii) terminate these Terms with respect to you if Company in good faith believes that you have used the Services in violation of these Terms, including any incorporated guidelines, terms or rules. Company prefers to advise you if we feel you are not complying with these Terms and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by Company, may result in immediate termination of your access to the Services without prior notice to you and termination of this Agreement. Upon termination of this Agreement, your right to use the Services will automatically terminate. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
Temporary or Permanent Suspension.
Company may temporarily suspend the Services without notice for security reasons, system failure, maintenance and repair, or other circumstances, including the permanent discontinuation or termination of Services. You are not entitled to any refund or rebate due to any suspensions. Company does not offer any specific uptime guarantee for the Services.
The Federal Arbitration Act, California state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement. Except for Disputes subject to arbitration as described above, any disputes relating to these Terms or the Services will be heard in the federal courts located in San Francisco, California or state courts located in Contra Costa County, California. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. Company’s failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and Company with respect to the subject matter hereof, and supersede all prior or contemporaneous negotiations, discussions or agreements between you and Company about such subject matter.
California Consumer Notice.
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: This Site and Service are provided by Dosime, Inc., 3000 Executive Parkway, Suite 222, San Ramon, CA 94583. If you have a question or complaint regarding the Site or Service, please contact Customer Service at firstname.lastname@example.org. You may also contact us by writing to Dosime, Inc., 3000 Executive Parkway, Suite 222, San Ramon, CA 94583, Attn: Customer Service Dept. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
If you have any questions about these Terms or otherwise need to contact Company for any reason, you can reach us at email@example.com.