Last updated: September 2, 2021
Please read this Terms of Service Agreement (“agreement”) carefully. The website (“Website”) of APPLIED X LABS, Inc. (“Applied XL”) and the information on it are controlled by Applied XL. These Terms of Service govern (i) the use of the Website and apply to all users using the Website in any way AND (II) the services, SOFTWARE, and ANY resources available or enabled via the Website (each a “Service” and collectively, the “Services”).
SECTION 10 OF THIS AGREEMENT IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 10 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT. IF YOU SUBSCRIBE TO THE SERVICES FOR AN INITIAL SUBSCRIPTION TERM, THEN THIS AGREEMENT WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT APPLIED XL’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU OPT OUT OF THE AUTO-RENEWAL IN ACCORDANCE WITH SECTION 6.3 BELOW.
By clicking the “Accept” button, completing the registration process, USING THE SERVICES, and/or browsing the Website, you REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF SERVICE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH APPLIED XL, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF SERVICE PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE TERMS OF SERVICE. THE TERM “YOU” OR “CUSTOMER” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED through the services. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS SET FORTH HEREIN. TO THE EXTENT CUSTOMER HAS SEPARATELY ENTERED INTO A LICENSING AGREEMENT WITH APPLIED XL COVERING THE SAME SERVICES, THE TERMS AND CONDITIONS OF SUCH AGREEMENT SHALL SUPERSEDE THIS AGREEMENT IN ITS ENTIRETY. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE THE WEBSITE OR THE SERVICES.
PLEASE NOTE THAT the Agreement is subject to change by APPLIED XL in its sole discretion at any time. When changes are made, Applied XL will make a new copy of the Terms of Service available at the Website. Applied XL will also update the “Last Updated” date at the top of the Terms of Service. If Applied XL makes any material changes, and you have registered with us to create an Account (as defined in Section 2.1 below) Applied XL will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Agreement. Any changes to the Agreement will be effective immediately for new users of the Website and/ or Services and will be effective thirty (30) days after posting notice of such changes on the Website for existing Registered Users, provided that any material changes shall be effective for Registered Users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users (defined in Section 2.1 below). Applied XL may require you to provide consent to the updated Agreement in a specified manner before further use of the Website and/ or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website and/or the Services. Otherwise, your continued use of the Website and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
1.1.License. Subject to the terms and conditions of this Agreement, during the Subscription Term (as defined below), Applied XL hereby grants Customer a non-exclusive, worldwide, royalty-free, non-transferable, non-sub-licensable right for Customer to (a) access and use the Services on a remote basis, including any software programs and associated interfaces and related technology that Applied XL makes available pursuant to this Agreement, in accordance with the standard end-user technical documentation, specifications, materials and other information Applied XL makes available electronically (the “Documentation”) and (b) to use and reproduce a reasonable number of copies of the Documentation, in each case, solely for Customer’s own internal business purposes.
1.2.License Restrictions. You agree that you will not, and will not permit any other party to: (a) permit any party to access the Services or Documentation or use the Services; (b) modify, adapt, alter or translate the Services or Documentation, except as expressly allowed herein; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Services or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services; (e) use or copy the Services or Documentation except as expressly allowed under this Agreement; or (f) disclose or transmit any data contained in the Services to any individual, except as expressly allowed herein. Notwithstanding the foregoing, decompiling the Services is permitted to the extent the laws of your jurisdiction require. You acknowledge and agree that the Services and Documentation will not be used, and are not licensed for use, in connection with any of your time-critical or mission-critical functions.
1.3. Free Trial. If Customer either registers on the Website or otherwise orders a free trial version, Applied XL will make certain Services available to Customer on a trial basis (the “Trial Version”) until the earlier of: (a) the end of the free trial period for which Customer registered or ordered the applicable Services; (b) the Effective Date of any purchased subscriptions for such Services by Customer; or (c) termination by Applied XL in its sole discretion. The Trial Version may be used only to review and evaluate the Services for your internal use. The Trial Version may cease operating after the applicable time period unless Customer opts to pay a monthly or annual subscription fee. Customer must stop using the Services at the end of such period. Additional trial terms and conditions may appear on the Website. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
2.1.General. In order to access the Services, you will be required to become a Registered User. For purposes of this Agreement, a “Registered User” is a user who has registered an account on the Website (“Account”) or has a valid account on a social networking service (“SNS”) through which the user has connected to the Services (each such account, a “SNS Account”). You may be required to register your Account using a third party single sign-on solution (e.g., Auth0) and we may use information received from such third party (e.g., email address and phone number) to register you for an Account.
2.2.Access Through a SNS. If you access the Services through a SNS as part of the functionality of the Services, you may link your Account with SNS Accounts by allowing Applied XL to access your SNS Account, as is permitted under the applicable terms and conditions that govern your SNS Account. You represent that you are entitled to grant Applied XL access to your SNS Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your SNS Account and without obligating Applied XL to pay any fees or making Applied XL subject to any usage limitations imposed by such SNS. Depending on the SNS Accounts you choose and subject to the privacy settings that you have set in such SNS Accounts, personally identifiable information that you post to your SNS Accounts may be available on and through your Account on the Services. Please note that if a SNS Account or associated service becomes unavailable, or Applied XL’s access to such SNS Account is terminated by the SNS, then you may not be able to access the Services through your SNS Account. You have the ability to disable the connection between your Account and your SNS Accounts at any time by accessing the “Settings” section of the Services. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE SNS PROVIDERS ASSOCIATED WITH YOUR SNS ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH SNS PROVIDERS, AND APPLIED XL DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH SNS PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH SNS ACCOUNTS.
2.3.Registration Data. In registering an account on the Website, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least thirteen (13) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using Applied XL’s Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Website and Services by minors. You may not share your Account or password with anyone, and you agree to (y) notify Applied XL immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Applied XL has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Applied XL has the right to suspend or terminate your Account and refuse any and all current or future use of the Website or Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. Applied XL reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Website or Services if you have been previously removed by Applied XL, or if you have been previously banned from any of Applied XL products or services, including without limitation the Website or Services.
2.4.Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Applied XL.
2.5.Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Website and Services. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Website and Services.
3.1.Ownership by Applied XL. The Services and Documentation are licensed and not sold to Customer, and no title or ownership to such Services, Documentation, or the intellectual property rights embodied therein passes as a result of this Agreement or any act pursuant to this Agreement. The Website, the Services, Documentation, and all intellectual property rights therein are the exclusive property of Applied XL and its suppliers, and all rights in and to the Website, the Services and Documentation not expressly granted to Customer in this Agreement are reserved by Applied XL. Applied XL and its suppliers owns all rights, title, and interest to the Website, the Services and Documentation. Nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license under any existing or future patents of Applied XL, except to the extent necessary for Customer to use the Services and Documentation as expressly permitted under this Agreement. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services or the Documentation.
3.2.Trademarks. All graphics, logos, service marks and trade names used on or in connection with the Website or in connection with the Services are the trademarks of Applied XL and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in the Website or the Services are the property of their respective owners.
3.3.Feedback. You hereby grant to Applied XL a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services or any other products or services of Applied XL, any suggestions, enhancement requests, recommendations or other feedback provided by you, relating to the Services. Applied XL will not identify you as the source of any such feedback.
4.1.Support and Maintenance. Subject to the terms and conditions of this Agreement, Applied XL will exercise commercially reasonable efforts to (a) provide support for the use of the Services to Customer, and (b) keep the Services operational and available to Customer, in each case in accordance with its standard policies and procedures.
TERM AND TERMINATION
5.1.Term. This Agreement will begin on the date that Customer accepts it (in accordance with the preamble) (the “Effective Date”) and continue until terminated in accordance with the terms herein. Customer subscriptions will commence as of the date Applied XL confirms Customer’s selection of a monthly or annual subscription package and continue for the period set forth therein, unless terminated earlier in accordance with Section 5.2.
5.2.Termination of Agreement. This Agreement will remain in full force and effect until terminated as set forth herein. You may terminate your Account, your access to the Services, and this Agreement at any time, for any reason by emailing firstname.lastname@example.org ; provided, however, that you must cancel your subscription before it renews (i.e., in accordance with Section 6.3), in order to avoid the Fees for the renewal term. If you do not cancel the Services prior to the renewal term, you shall remain responsible for paying the Fees for the rest of the then-current subscription term. At its sole discretion, Applied XL may modify or discontinue the Services, or may modify, suspend or terminate your access to the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Services, Applied XL reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Services is terminated, this Agreement will remain enforceable against you and unpaid amounts you owe to Applied XL will remain due.
5.3.Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service and the termination of any applicable licenses or rights. Termination of the Agreement or all Services also includes deletion of your password and all related information associated with or inside your Account (or any part thereof). Upon termination of any Service, your right to use such Service will automatically terminate immediately. Applied XL will not have any liability whatsoever to you for any suspension or termination.
5.4.Survival. Sections 1.2, 3, 5.3, 5.4 and 7-12 will survive the termination of this Agreement.
6.1.Fees. In consideration for the access rights granted to Customer and the Services provided by Applied XL under this Agreement, you shall pay Applied XL all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable (the “Fees”). All payments shall be made in U.S. dollars. Unless otherwise specified, Customer will pay all Fees payable to Applied XL at the time you register for a month/annual subscription to the Services. Applied XL reserves the right to increase Fees each calendar year with thirty (30) days’ prior written notice to Customer. Additional payment terms may be set forth in the Services. Applied XL reserves the right to suspend the Services in whole or in part if any Fees are not paid for any reason or are over thirty (30) days late.
6.2.Payment. You must provide Applied XL with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”) as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities. By providing Applied XL with your credit card number and associated payment information, you agree that Applied XL is authorized to immediately invoice your Account for all fees and charges due and payable to Applied XL hereunder and that no additional notice or consent is required. You agree to immediately notify Applied XL of any change in your billing address or the credit card used for payment hereunder. Applied XL reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Services or by e-mail delivery to you.
6.3.1. AFTER YOUR INITIAL SUBSCRIPTION PERIOD (THE “INITIAL SUBSCRIPTION TERM”), AND AGAIN AFTER ANY SUBSEQUENT SUBSCRIPTION PERIOD, YOUR SUBSCRIPTION WILL AUTOMATICALLY COMMENCE ON THE FIRST DAY FOLLOWING THE END OF SUCH PERIOD (EACH A “RENEWAL COMMENCEMENT DATE”) AND CONTINUE FOR AN ADDITIONAL EQUIVALENT PERIOD (EACH, A “RENEWAL SUBSCRIPTION TERM”), AT APPLIED XL’S THEN-CURRENT PRICE FOR SUCH SUBSCRIPTION. THE “SUBSCRIPTION TERM” SHALL MEAN THE INITIAL SUBSCRIPTION TERM AND ANY RENEWAL SUBSCRIPTION TERMS.
6.3.2.UPON RENEWAL OF YOUR SUBSCRIPTION, IF APPLIED XL DOES NOT RECEIVE PAYMENT FROM YOUR PAYMENT PROVIDER, (A) YOU AGREE TO PAY ALL AMOUNTS DUE ON YOUR ACCOUNT UPON DEMAND AND/OR (B) YOU AGREE THAT APPLIED XL MAY EITHER TERMINATE OR SUSPEND YOUR SUBSCRIPTION AND CONTINUE TO ATTEMPT TO CHARGE YOUR PAYMENT PROVIDER UNTIL PAYMENT IS RECEIVED (UPON RECEIPT OF PAYMENT, YOUR ACCOUNT WILL BE ACTIVATED AND FOR PURPOSES OF AUTOMATIC RENEWAL, YOUR NEW SUBSCRIPTION COMMITMENT PERIOD WILL BEGIN AS OF THE DAY PAYMENT WAS RECEIVED). YOUR SUBSCRIPTION WILL REMAIN IN FULL FORCE AND EFFECT UNTIL TERMINATED IN ACCORDANCE WITH THIS AGREEMENT. IF YOU WISH TO CHANGE OR TERMINATE YOUR SUBSCRIPTION, PLEASE CONTACT APPLIED XL AT SUPPORT@APPLIEDXL.COM OR VISIT THE PROFILE PAGE ON THE APPLIED XL PLATFORM.
6.3.3.FOR MONTHLY SUBSCRIPTIONS, YOU AGREE THAT YOUR ACCOUNT WILL BE SUBJECT TO THIS AUTOMATIC RENEWAL FEATURE UNLESS YOU CANCEL YOUR SUBSCRIPTION AT LEAST FIFTEEN (15) DAYS PRIOR TO THE RENEWAL COMMENCEMENT DATE (OR IN THE EVENT THAT YOU RECEIVE A NOTICE FROM APPLIED XL THAT YOUR SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED, YOU WILL HAVE FIFTEEN (15) DAYS FROM THE DATE OF THE APPLIED XL NOTICE), BY CONTACTING APPLIED XL AT SUPPORT@APPLIEDXL.COM.
6.3.4.FOR ANNUAL SUBSCRIPTIONS, YOU AGREE THAT YOUR ACCOUNT WILL BE SUBJECT TO THIS AUTOMATIC RENEWAL FEATURE UNLESS YOU CANCEL YOUR SUBSCRIPTION AT LEAST THIRTY (30) DAYS PRIOR TO THE RENEWAL COMMENCEMENT DATE (OR IN THE EVENT THAT YOU RECEIVE A NOTICE FROM APPLIED XL THAT YOUR SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED, YOU WILL HAVE THIRTY (30) DAYS FROM THE DATE OF THE APPLIED XL NOTICE), BY CONTACTING APPLIED XL AT SUPPORT@APPLIEDXL.COM
6.3.5.If you cancel your subscription, you may use the Services until the end of your then-current Subscription Term; after that, your access to the Services will be restricted. Once you cancel your subscription, your subscription will not be renewed after your then-current Subscription Term period expires. However, you will not be eligible for a prorated refund of any portion of the Fees paid for the then-current Subscription Term.
6.4.Taxes. All fees are exclusive of any sales, use, excise, import, export or value-added tax, levy, duty or similar governmental charge which may be assessed based on any payment due hereunder, including any related penalties and interest (“Taxes”). Customer is solely responsible for all Taxes resulting from transactions under this Agreement, except Taxes based on Applied XL’s net income. Customer will indemnify and hold Applied XL harmless from (a) the Customer’s failure to pay (or reimburse Applied XL for the payment of) all such Taxes; and (b) the imposition of and failure to pay (or reimburse Applied XL for the payment of) all governmental permit fees, license fees, customs fees and similar fees levied upon delivery of the Services or Documentation which Applied XL may incur in respect of this Agreement or any other fees required to be made by Customer under this Agreement, together with any penalties, interest, and collection or withholding costs associated therewith.
DISCLAIMERS AND WARRANTIES
7.1.to the maximum extent permitted by applicable law, the website, services, ANY SUPPORT, documentation and any other product or service provided to customer are provided “AS IS” and “as AVAILABLE.” Applied XL hereby disclaims all warranties whether express, implied or statutory with respect to the Website, the Services, Documentation, any support services, and any other products or services provided to Customer under this Agreement, including without limitation any implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, and any warranty ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
7.2.YOU ACKNOWLEDGE AND AGREE THAT APPLIED XL IS NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD APPLIED XL LIABLE, FOR THE CONDUCT OR OMISSIONS OF THIRD PARTIES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
7.3.you acknowledge and agree that THE CONTENT AND INFORMATION AVAILABLE THROUGH THE SERVICES IS DESIGNED FOR EDUCATIONAL AND INFORMATIONAL AND IS NOT CONSTRUED TO BE ADVICE OF ANY KIND. YOU SHOULD NOT RELY ON INFORMATION AVAILABLE IN OR VIA THE SERVICES AS A SUBSTITUTE FOR PROFESSIONAL ADVICE, INCLUDING MEDICAL ADVICE. YOU MUST NOT RELY ON ANY OF THE CONTENT AND INFORMATION FOR ANY PURPOSES WHATSOEVER, AND YOU MUST SEEK YOUR OWN INDEPENDENT PROFESSIONAL ADVICE BEFORE RELYING ON OR OTHERWISE DECIDING TO TAKE ANY ACTION ON THE BASIS OF ANY CONTENT OR INFORMATION AVAILABLE THROUGH THE SERVICES.
7.4.Without limiting the foregoing, Applied XL does not represent or endorse the accuracy or reliability of any advice, opinion, statement, or other information displayed, uploaded, or distributed through the Services, including without limitation by any user, information provider, or any other person or entity. You acknowledge that any reliance upon any such opinion, advice, statement, memorandum, or information shall be at your sole risk. THE SERVICES AND ALL SOFTWARE ARE DISTRIBUTED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. YOU HEREBY ACKNOWLEDGE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK.
8.1.By Applied XL.
8.1.1.Applied XL’s Obligation. Applied XL will defend any suit brought against Customer by a third party to the extent that the suit is based upon a claim that the Services infringes such third party’s United States copyrights or misappropriates such third party’s trade secrets recognized as such under the Uniform Trade Secrets Act or such other similar laws, and Applied XL will pay those costs and damages finally awarded against Customer in any such action or those costs and damages agreed to in a monetary settlement of such claim, in each case that are specifically attributable to such claim. However, such defense and payments are subject to the conditions that: (a) Applied XL will be notified promptly in writing by Customer of any such claim; (b) Applied XL will have sole control of the defense and all negotiations for any settlement or compromise of such claim; and (c) Customer will cooperate and, at Applied XL’s request and expense, assist in such defense. This Section 8.1 states Applied XL’s entire liability and Customer’s sole and exclusive remedy for any infringement and/or misappropriation claims.
8.1.2.Alternative. If Customer’s use of the Services is prevented by injunction or court order because of infringement, or should the Services be likely to become the subject of any claim in Applied XL’s sole opinion, Customer will permit Applied XL, at the sole discretion of Applied XL and no expense to Customer, to: (i) procure for Customer the right to continue using such Services in accordance with this Agreement; or (ii) replace or modify the Services so that it becomes non-infringing while providing substantially similar features. Where (i) and (ii) above are not commercially feasible for Applied XL, the applicable licenses will immediately terminate and Applied XL will refund pro-rated fees for the remainder of the term to Customer.
8.1.3.Exclusions. Applied XL will have no liability to Customer for any claim of infringement or misappropriation to the extent based upon: (a) use of the Services not in accordance with this Agreement or the Documentation; (b) the combination of the Services with third party hardware or software not conforming to the operating environment specified in Documentation; or (c) any modification of the Services by any person other than Applied XL. Customer will indemnify Applied XL against all liability, damages and costs (including reasonable attorneys’ fees) resulting from any such claims (the “Exclusions”). Customer will indemnify Applied XL against all liability, damages and costs (including reasonable attorneys’ fees) resulting from any such Exclusions.
8.2.By Customer. Customer will indemnify, defend and hold Applied XL and its directors, officers, affiliate, employees, agents, partners, licensors, and suppliers harmless from and against any and all actual or alleged third-party claims and accompanying liabilities, losses, damages, costs and expenses, including reasonable external attorneys’ fees arising out of or in connection with, (a) Customer’s use of, or inability to use the Services; (b) Customer’s violation of this Agreement; (c) Customer’s violation of any rights of another party; or (d) Customer’s violation of any applicable laws, rules, or regulations.
LIMITATION OF LIABILITY
9.1. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, IN NO EVENT WILL APPLIED XL BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, OR ANY SERVICES OR SUPPORT SERVICES PROVIDED HEREIN, UNDER ANY LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF THE USE OR PERFORMANCE OF ANY PRODUCTS OR SERVICES, LOSS OF REVENUES, LOSS OF PROFITS, OR BUSINESS INTERRUPTION, EVEN IF APPLIED XL KNOWS OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, IN NO EVENT WILL APPLIED XL’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY APPLIED XL FROM CUSTOMER UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING SUCH CLAIM. THIS SECTION 9 WILL APPLY EVEN IF AN EXCLUSIVE REMEDY OF CUSTOMER UNDER THIS AGREEMENT HAS FAILED OF ITS ESSENTIAL PURPOSE.
9.2.THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN APPLIED XL AND YOU.
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Applied XL and limits the manner in which you can seek relief from us. This Section 10 only applies to residents of the United States.
10.1.Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Applied XL, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims or seek relief in small claims court if your claims qualify; and (2) you or Applied XL may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
10.2.Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent: United Corporate Services, Inc., 874 Walker Road, Suite C, Dover, Delaware 19904. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Applied XL will pay them for you. In addition, Applied XL will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
10.3.Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Applied XL. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
10.4.Waiver of Jury Trial. YOU AND APPLIED XL HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Applied XL are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 10.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
10.5.Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the state or federal courts located in the State of New York. All other disputes, claims, or requests for relief shall be arbitrated.
10.6.30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: SUPPORT@APPLIEDXL.COM, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Applied XL username (if any), the email address you used to set up your Applied XL account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
10.7.Severability. Except as provided in Section 10.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
10.8.Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Applied XL.
10.9.Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Applied XL makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing to Applied XL at the following address: Applied X Labs, Inc., 19 Morris Ave, Brooklyn, NY 11205.
THIRD PARTY LINKS
The Services may contain links to third-party services such as third-party websites, applications, or ads (“Third-Party Links”). When you click on such a link, we will not warn you that you have left the Services. Applied XL does not control and is not responsible for Third-Party Links. Applied XL provides these Third-Party Links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to them, or any content, products or services accessible through such links. Your use of all Third-Party Links is at your own risk.
12.1.Release. You hereby release Applied XL and its successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Website or the Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by Applied XL or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.
12.2.Electronic Communications. The communications between you and Applied XL may take place via electronic means, whether you visit the Website or Services or send Applied XL e-mails, or whether Applied XL posts notices on the Website or Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Applied XL in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Applied XL provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
12.3.Notice. Where Applied XL requires that you provide an e-mail address, you are responsible for providing Applied XL with your most current e-mail address. In the event that the last e-mail address you provided to Applied XL is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Applied XL’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice of any changes to your e-mail address to Applied XL at the following address: 19 Morris Ave, Brooklyn, NY 11205 or email@example.com
12.4.Relationship of Parties. The parties hereto are independent contractors. Nothing in this Agreement will be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship between the parties.
12.5.Publicity. Applied XL may use Customer’s name and a description of Customer’s use of the Services for investor relations and marketing purposes.
12.6.International Users. The Services can be accessed from countries around the world and may contain references to Services and content that are not available in your country. These references do not imply that Applied XL intends to announce such Services or content in your country. Applied XL makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
12.7.Compliance with Export Control Laws. The Services may contain encryption technology controlled under U.S. export law, the export of which may require an export license from the U.S. Commerce Department. Customer will comply with all applicable export control laws and regulations of the U.S. and other countries. Customer will defend, indemnify, and hold harmless Applied XL from and against all fines, penalties, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) incurred by Applied XL as a result of Customer’s breach of this Section 12.7.
12.8.Assignment. Customer may not assign or transfer, by operation of law, merger or otherwise, any of its rights or delegate any of its duties under this Agreement (including, without limitation, its licenses and rights in connection with the Services) to any third party without Applied XL’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be null and void. Applied XL may assign its rights or delegate its obligations under this Agreement.
12.9.Governing Law and Venue. This Agreement will be governed by the laws of the State of New York, excluding any conflict of law provisions that would require the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought exclusively in a federal or state court located in the State of New York. Each party irrevocably consents to the personal jurisdiction and venue in, and agrees to service of process issued by, any such court.
12.10.Force Majeure. Any delay in or failure of performance by either party under this Agreement, other than a failure to pay amounts when due, will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
12.11.Remedies. Except as expressly provided elsewhere in this Agreement, the parties’ rights and remedies under this Agreement are cumulative. Customer acknowledges that the Services contains valuable trade secrets and proprietary information of Applied XL, that any actual or threatened breach of Section 1 will constitute immediate, irreparable harm to Applied XL for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.
12.12.Waiver; Severability. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is adjudicated to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
12.13.Construction. The Section headings of this Agreement are for convenience and will not be used to interpret this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”
12.14.Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.