Terms of Use
Last Updated: August 11th, 2021
Your access to, download of, and/or use of the ImmersiveView application, any extensions such as ImmersiveTrauma, and any other application, platform, or service on which these terms of use reside or are incorporated by reference, including the software; any code, files, content, materials, and images, contained in or generated by the software; accompanying data; Boot ROM code; and other embedded software; Application Updates (as hereafter defined); documentation; and any accompanying fonts, whether in read-only memory, on any other media or in any other form (collectively, the “Application”), are subject to these terms of use (“Terms”). Please read these Terms carefully before using the Application. The Application is owned and controlled by ImmersiveTouch, Inc. (“Company”).
Except as may otherwise be permitted by Company from time to time in Company’s sole discretion, in order to access and/or use the Application, you will be provided access, by a hospital or other medical services entity that has entered into a fully executed agreement with Company (a “Master Agreement”), to a Company-authorized device on which the Application is installed or to which the Application is authorized by Company to be downloaded (an “Authorized Device”) and be provisioned login credentials for the Application (“Login Credentials”). In addition to the Terms set forth below, your access to, and use of, the Application is subject to all terms, conditions, and limitations set forth in the applicable Master Agreement and any Additional Agreement(s) (as hereafter defined), including, without limitation, all usage and term limits. Additionally, you acknowledge that information you provide or that Company collects via the Application will be processed as described in the ImmersiveView Privacy Notice.
By requesting login credentials for the Application and/or accessing, downloading, and/or using the Application in any way, including, without limitation, using any information, and/or submitting information or content to Company, you warrant that you are authorized to contract with Company on these Terms and that you are eighteen (18) years of age or older, and you agree to and are bound by the terms, conditions, policies and notices contained in these Terms, including, but not limited to, conducting this transaction electronically, binding arbitration, disclaimers of warranties, and damage and remedy exclusions and limitations.
From time to time Company may update the Application and these Terms. Your use of the Application after Company posts any changes to these Terms constitutes your agreement to those changes. You agree to review these Terms periodically to ensure that you are familiar with the most recent version. Company may, in its sole discretion, and at any time, discontinue the Application or any access thereto or features thereof, with or without notice, or may prevent your use of the Application (or any features, content, or materials associated therewith) with or without notice to you and without liability to you.
Personal Information
In certain areas of the Application, you may have the ability to upload or otherwise provide personally identifiable information, personal information, or other information that is linkable to a particular individual (collectively, “Personal Information”). In the event you upload or provide (including in or in connection with any User Content, as hereafter defined) Personal Information of, and/or any other information relating to, patients, prospective patients, or other third party individuals, you represent and warrant that you have obtained all authorizations or consents as legally required to upload such information via the Application or otherwise disclose it to Company including for Company’s processing, use, distribution, publication, and disclosure in accordance with the Terms hereof (proof of which authorizations and/or consents you shall provide to Company in accordance with Company’s requirements or requests from time to time). Without limiting the foregoing, you warrant and represent that you will not upload or otherwise provide any “protected health information” (“PHI”) as defined and described in the Health Insurance Portability and Accountability Act of 1996, as amended, and its implementing regulations (“HIPAA”), any “medical information” as defined and described in the California Confidentiality of Medical Information Act, or any biometric information, genetic information, or medical-related or health-related Personal Information of or relating to any patient, prospective patient, or other third party individual except to the extent expressly authorized by any applicable Master Agreement, Additional Agreement(s), or otherwise in writing by Company, and then only in accordance with all legally required patient authorizations and/or consents (proof of which authorizations and/or consents you shall provide to Company in accordance with Company’s requirements or requests from time to time). You understand and agree that, notwithstanding anything to the contrary contained therein, the Privacy Policy available at https://www.immersivetouch.com/privacy-policy shall not apply to any Personal Information uploaded, provided, or otherwise processed in connection with the Application or the use thereof, and that the collection, use, and disclosure of Personal Information uploaded, provided, or otherwise processed in connection with the Application shall be governed solely by these Terms and any applicable Master Agreement or Additional Agreement(s).
Without limiting the generality of the foregoing or any other provision in these Terms, Personal Information collected on and in connection with the Application by Company and its vendors and service providers may include, without limitation, contact information and identifiers (such as names, email addresses, Login Credentials, phone numbers, and mailing addresses); device, Internet, and network activity information (such as information about the browser, device and operating system you are using, device identifiers, MAC addresses, IP addresses, and analytics and information about how you interact with the Application, which may include mouse movements, screen captures, and content entry); employment-related information; location information; demographic information; and any Personal Information you may upload or otherwise provide or make available in connection with the use of the Application. Company may collect Personal Information directly from you, from your device (including through the use of tracking tools including cookies and web beacons), from vendors Company hires to work on Company’s behalf, and other third parties. To the extent permitted by applicable law and without limiting anything contained in these Terms, Company may use Personal Information for a variety of business, commercial, and other reasons, including, without limitation, to provide, distribute, and develop Company’s products and services; to respond to requests and questions; to analyze and improve Company’s products and services; to comply with Company’s obligations and administer Company’s applications, websites, products, and services; for security, safety, and due diligence purposes; and as otherwise required, disclosed or permitted by law, or as Company may notify you. To the extent permitted by applicable law, Company may also use your contact information and device, Internet, and network activity information for marketing purposes. To the extent permitted by applicable law and without limiting anything contained in these Terms, Company may share Personal Information with other parties, including, without limitation, any parent, subsidiary, or affiliate; with vendors and service providers that perform services on Company’s behalf; with hospitals, medical services entities, and business partners (subject to any applicable provisions in any applicable Master Agreement, if any); with third parties for safety and security purposes, if Company thinks it has to in order to comply with the law, or to protect Company and/or others; with third parties as part of a transaction, financing, due diligence or for other business needs; with a successor to all or part of Company’s business; and for other reasons Company may describe to you from time to time or as permitted or required by law. To the extent permitted by applicable law, certain Personal Information and other User Content (as hereafter defined) may be shared with, or otherwise made available to, third parties and the general public, including in and in connection with the Company Generated Materials (as hereafter defined). Personal Information Company collects may be transferred to, processed in, or stored in the United States. By requesting login credentials for the Application and/or accessing, downloading, and/or using the Application in any way, you consent to such transfer, storage, and processing. If you have questions about Company’s processing of Personal Information, you may contact Company at sales@immersivetouch.com.
Company Content
The Application and the content in the Application that is provided or made available by Company or its licensors, including certain graphics, photographs, images, text, and any interactive content, digitally downloadable files, trademarks, logos, product and program names, methodologies, concepts, analyses, algorithms, know-how, frameworks, models, templates, specifications, industry perspectives, technology (including all software, Internet portals, platforms, access and analytic tools, along with updates and new versions, all in object and source code and together with all documentation and manuals), and other tools, raw data, syndicated or syndicatable data and any other data, including Company Generated Materials, all information and content made available through the Application and the compilation of the foregoing (collectively, the “Company Content”) is the property of Company and its licensors, and is protected in the U.S. and internationally under trademark, copyright, and other intellectual property laws. You agree not to download, display or use any Company Content for use in any publications, on websites, for any commercial purpose, in connection with products or services that are not those of Company, or in any manner that is likely to cause confusion among consumers, that disparages or discredits Company and/or its licensors, that dilutes the strength of Company's or its licensor's property, or that otherwise infringes Company’s or its licensors’ intellectual property rights. You further agree to in no other way misuse any Company Content or third party content that appears in the Application.
In connection with your use of the Application, Company may generate and/or provide certain data and materials (“Company Generated Materials”), including, without limitation, three-dimensional virtual reality models created from User Content (including, without limitation CT and MR scan data) and other Company Content. Company grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use only the specific Company Generated Materials that Company makes available to you in the Application for your confidential and internal use only and solely during the term of any applicable Master Agreement (and in no event longer than one (1) year from the date of initial access or use of the applicable Company Generated Material(s) unless otherwise separately authorized by Company in Company’s sole discretion), in accordance with the terms and limitations of any applicable Master Agreement and as set forth in this Section. For the avoidance of doubt, Company reserves the right to terminate your access to any Company Generated Material(s) at any time in its sole discretion.
Absent specific prior written consent by Company, in no event will you, either directly or indirectly, through yourself or any party:
(a) provide access to, disclose or distribute the Company Content, or any part thereof, to any third party, by any manner whatsoever, including any form of on-line technology, except as otherwise expressly set forth below in this Section;
(b) recreate, redistribute, republish or broadcast the Company Content;
(c) utilize in connection with, or with respect to, the Company Content any automated data-mining programs, including without limitation web spiders, bots, indexers, robots, crawlers, harvesters, scripts, or macros;
(d) distribute, market, license or sell any derivative work based on the Company Content, or decompile, reverse engineer, disassemble, combine, pool, commingle or cross-reference them with other information, technology or content; sublicense, distribute, dispose of, modify, adapt or translate the Company Content, remove any rights management tools, access restrictions, or proprietary or copyright legend from the Company Content, or use the Company Content in a manner competitive with Company or its affiliates, or any intellectual property, or service of Company or its affiliates;
(e) copy the Company Content or place the Company Content on any data retrieval systems that may be accessed outside your immediate organization;
(f) use the Company Content or any part thereof in any legal or administrative proceeding, except as required and compelled by legal process, in which case you shall promptly give Company advance written notice, and, before such use, you shall obtain confidentiality agreements, protective orders and evidentiary stipulations acceptable to Company and shall limit the use to the minimum necessary to comply with such legal requirement, all of the foregoing at your expense; or
(g) disclose the Company Content or any part thereof to the general public, including without limitation in any press release or advertising, marketing or promotional claim.
Any use or disclosure of Company Content to any third party, including but not limited to consultants, software solutions providers, third party processors, computer service bureaus, value added processors, and/or data modeling companies, is prohibited without Company’s prior written consent, and if Company provides such consent, you and such third party must execute Company’s then-standard form of a third-party access agreement, which may be provided by Company upon request. Company reserves the right to restrict access or rights and may charge fees therefor, at Company’s sole discretion. As a condition to any such consent you agree that Company will not bear any responsibility, loss or liability in connection with, and you will be entirely liable for, any act or omission of each such third party.
Accounts, Passwords, and Security
If the Application requires you to create an account or otherwise submit information, you must complete the specified process by providing Company with current, complete, and accurate information as requested by the applicable registration form. It is your responsibility to maintain the currency, completeness, and accuracy of your registration data, and any loss caused by your failure to do so is your responsibility. During the registration process, you may be asked to enter your name and Login Credentials. It is your responsibility to maintain the confidentiality of your password and account. Additionally, you are responsible for any and all activities that occur under your account. You agree to notify Company immediately of any unauthorized use of your account. You further agree not to email, post, or otherwise disseminate your Login Credentials or any other user ID, password, or other information which provides you access to the Application. Company is not liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. If you suspect your Login Credentials have been compromised, you must notify Company immediately. Company is not responsible for disabling or locking your account, or any delay thereof, in connection with a potential breach of security you may report. Login Credentials may not be reassigned or shared without Company’s prior approval.
User Content
In certain areas of the Application, you may be given the ability to upload, display, share, or otherwise provide content and information, which may include, without limitation, CT and MR scans and scan data (“User Content”). By uploading, displaying, sharing, or otherwise providing any User Content in, through, or otherwise in connection with the Application, you hereby grant to Company a non-exclusive, sub-licensable, worldwide, fully-paid, royalty free license to use, modify, publicly perform, publicly display, reproduce, and distribute such User Content in any and all media now known or hereinafter developed without the requirement to make payment to you or to any third party or the need to seek any third party permission. This license includes, without limitation, the right to host, index, cache, distribute, and tag any User Content, edit and revise any User Content (without notice), as well as the right to sublicense User Content to third parties, including other users, for use on other media or platforms known or hereinafter developed. You represent and warrant that you have the right to grant the license set forth herein, and the displaying, publishing or posting of any content you submit, and Company’s use thereof (including the creation of models and other Company Content therefrom and the publication and/or distribution thereof) does not and will not violate the privacy rights, publicity rights, copyrights, trademark rights, patents, contract rights or any other intellectual property rights or other rights of any person or entity. Company reserves the right to remove or destroy any User Content you provide, in its sole discretion, without any notice to you. If you are an intellectual property rights holder and you believe your copyright or other intellectual property have been infringed, please contact us at sales@immersivetouch.com.
Use of the Application
The Application may only be used on an Authorized Device in strict accordance with these Terms. The following requirements apply to your use of the Application, Company Content, and all User Content: (a) you will not use any feature of the Application and/or any Company Content or User Content for any purpose that is unlawful, tortious, abusive, or intrusive on another's privacy or otherwise violates the rights of any third party; (b) you will not upload, post, reproduce, or distribute any information, software, or other material protected by copyright or any other intellectual property right (as well as rights of publicity and privacy) without first obtaining the permission of the owner of such rights; (c) you will not access, tamper with, or use non-public areas of the Application, attempt to obtain unauthorized access to another user’s account, or collect or store personal or other data about other users; (d) you will not use the Application or any Company Content or User Content (or portion thereof) for any commercial purpose or for the benefit of any third party not expressly approved by Company in writing; (e) you will not email or otherwise transmit any advertising or promotional materials or any other form of solicitation or unauthorized communication; (f) you will not use the Application or any Company Content or User Content for any unlawful purposes; and (g) you will not upload, email or otherwise transmit any material that contains viruses or any other computer code, files, or programs which might interrupt, limit, or interfere with the functionality of any computer software or hardware or telecommunications equipment.
You further agree that you will not (a) utilize the Application in connection with any data scraping or automated data-mining programs, including web spiders, bots, indexers, robots, crawlers, harvesters, scripts, or macros; (b) distribute, market, rent, lease, license or sell any derivative work based on the Application and/or Company Content, or decompile, reverse engineer, disassemble, combine, pool, commingle or cross-reference the Application with other information, technology or content; (c) remove any proprietary or copyright legend from, or use the Application in a manner competitive with Company or its affiliates; nor (d) copy the Application or any Company Content, unless otherwise specifically authorized by Company.
You agree to indemnify and hold Company, its parents, subsidiaries, officers, employees, and contractors and each of their officers, employees and agents harmless from any claims, damages and expenses, including reasonable attorneys' fees and costs, related to your violation or alleged violation of these Terms, or which arises from or in connection with your use of the Application, any User Content, any Company Content and/or any content you submitted, posted, or otherwise provided to Company or the Application. You agree that the releases and indemnities in these Terms will survive the termination of these Terms.
You represent and warrant that the information you provide is true and accurate and agree to update the information thereafter in the event of any changes. You acknowledge and agree that Company reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Application. You represent, warrant, and covenant that you will abide by all applicable laws, rules, and regulations in connection with the use of the Application, including, without limitation, those related to data privacy, communications, and the transmission of technical or personal data. You agree that any unauthorized use of the Application (or any data derived therefrom) by you may result in immediate suspension or termination of Application access.
Certain Intellectual Property Rights
The Application is licensed to you by Company subject to these Terms and on a limited, non-sublicensable, non-exclusive, revocable basis. Neither title nor any intellectual property rights are transferred to you, but rather remain with Company, who owns full and complete title, and Company reserves all rights not expressly granted to you. The rights granted herein are non-transferable and are limited to Company’s intellectual property rights in the Application and do not include any other patents or intellectual property rights. These Terms do not grant you any rights to use the Application, Application Updates, Company Content, User Content, or any other Company proprietary interfaces or other intellectual property in the design, development, manufacture, licensing or distribution of third-party devices and accessories for use with the Application. Any use of the Application in any manner not allowed under these Terms, including, without limitation, resale, transfer, modification or distribution of the Application or copying or distribution of data, reports, text, pictures, video, recordings, hyperlinks, displays and other content provided by the Application is prohibited. These Terms do not entitle you to receive and do not obligate Company to provide hard-copy documentation, support, telephone assistance, or enhancements or updates to the Application.
Except as and only to the extent permitted by applicable law, or by licensing terms governing use of open-sourced components included with the Application, you may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Application, Application Updates, or any part thereof. Any attempt to do so is a violation of the rights of Company and its licensors of the Application and Application Updates.
Company may make available for download certain application updates or upgrades to the Application to update, enhance or further develop the Application (“Application Updates”). Company may, at its discretion, automatically download Application Updates to the device you use to access the Application. You agree to accept these Application Updates.
The Application and Application Updates are subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Application and Application Updates. These laws include restrictions on destinations, end users and end use. You warrant that you will abide by all applicable local, state, national and foreign laws, rules, treaties and regulations in connection with its use of the Application, including, without limitation, those related to data privacy, international communications and the transmission of technical or personal data. You further 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.
Disclaimers, Representations, and Limitations of Liability
The services and information provided through the Application are not intended as, or as a substitute for, medical or other professional advice, and you remain solely responsible for: i) your decisions, actions, and use of the Application, any Company Content, and/or any User Content; and ii) compliance with applicable laws, rules and regulations. You assume all responsibility for determining whether the Application is appropriate or sufficient for your purposes. Final determination of the suitability of the Application and/or any Company Content or User Content for use contemplated by you or your employees, agents, or designees is your sole responsibility, and Company shall in no way be responsible for the suitability of the Application, Company Content, or User Content for any particular use.
Company makes no representations about the reliability of the features of the Application, the Company Content, User Content, or any Application feature, and disclaims all liability in the event of any service failure and/or output error. You acknowledge that any reliance on such material or systems will be at your own risk. Company makes no representations regarding the amount of time that any Company Content or User Content will be preserved.
Company does not endorse, verify, evaluate or guarantee any information provided by or through the Application and nothing shall be considered as an endorsement, verification or guarantee of any such content. You shall not create or distribute information, including but not limited to advertisements, press releases or other marketing materials, or include links to any sites which contain or suggest an endorsement by Company without the prior review and written approval of Company.
The Internet may be subject to breaches of security. Company is not responsible for any resulting damage to any user’s device or computer from any such security breach, or from any virus, bugs, tampering, unauthorized intervention, fraud, error, omission, interruption, deletion, defect, delay in operation or transmission, computer line failure or any other technical or other malfunction. You should also be aware that e-mail and other submissions over the Internet may not be secure, and you should consider this before e-mailing Company any information or uploading information to the Application. Company makes no representation or warranty whatsoever regarding the suitability, functionality, performance, availability or operation of the Application. The Application may be temporarily unavailable due to maintenance or malfunction of computer equipment.
THE APPLICATION IS PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, ARE MADE WITH RESPECT TO THE APPLICATION OR ANY INFORMATION OR SOFTWARE THEREIN OR ANY COMPANY CONTENT OR USER CONTENT. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL COMPANY BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (COLLECTIVELY, “DAMAGES”) THAT RESULT FROM THE USE OF OR INABILITY TO USE THE APPLICATION, ANY COMPANY CONTENT, AND/OR ANY USER CONTENT, NOR SHALL COMPANY BE RESPONSIBLE FOR ANY DAMAGES WHATSOEVER THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE WHETHER OR NOT CAUSED BY EVENTS BEYOND COMPANY’S REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS LINE FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO THE APPLICATION’S RECORDS, PROGRAMS, OR SERVICES. UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO A NEGLIGENT ACT, WILL COMPANY OR ITS AFFILIATES OR AGENTS BE LIABLE FOR ANY DAMAGE OF ANY KIND THAT RESULTS FROM THE USE OF, OR THE INABILITY TO USE, THE APPLICATION, ANY COMPANY CONTENT, AND/OR ANY USER CONTENT, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES; AS A RESULT, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
THE APPLICATION, COMPANY CONTENT, ALL COMPANY SERVICES, AND USER CONTENT ARE INTENDED FOR INFORMATIONAL AND EDUCATIONAL GUIDANCE PURPOSES ONLY, DO NOT PROVIDE MEDICAL ADVICE, AND DO NOT SUBSTITUTE FOR, NOR RELIEVE YOU FROM YOUR OBLIGATION TO EXERCISE, YOUR OWN INFORMED MEDICAL JUDGMENT AND SKILLS IN ANY MEDICAL PROCEDURES YOU MAY PERFORM. NOTHING IN THE APPLICATION, COMPANY CONTENT, AND/OR USER CONTENT IS INTENDED TO CONSTITUTE ADVICE ON WHICH YOU SHOULD RELY. MEDICAL PROFESSIONALS ARE RESPONSIBLE FOR THEIR OWN CLINICAL AND SURGICAL DECISIONS AND SHOULD NOT RELY ON THE APPLICATION, COMPANY CONTENT, USER CONTENT AND/OR ANY COMPANY SERVICES IN MAKING THEM. THE COMPANY CONTENT AND USER CONTENT HAVE NOT BEEN ENDORSED OR APPROVED BY ANY GOVERNMENTAL BODY OR BY ANY MEDICAL ASSOCIATION OR ORGANIZATION.
YOU HEREBY RELEASE AND DISCHARGE COMPANY, ITS PARENTS, SUBSIDIARIES, OFFICERS, EMPLOYEES, AND CONTRACTORS AND EACH OF THEIR OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ANY CLAIMS, DAMAGES, EXPENSES AND LIABILITY ARISING FROM OR RELATED TO ANY INJURIES, DAMAGES OR LOSSES TO ANY PERSON (INCLUDING DEATH) OR PROPERTY OF ANY KIND RESULTING IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, FROM USE OF THE APPLICATION, ANY COMPANY CONTENT, AND/OR ANY USER CONTENT.
Binding Arbitration
You and Company agree that, except for either party’s claims of infringement or misappropriation of any patent, copyright, trademark, trade secret or other intellectual property right, any controversy or claim arising out of or relating to the Application or these Terms shall be settled exclusively by binding arbitration in Illinois, or at such other location as may be mutually agreed upon by the parties or in a location determined by the arbitrator as set forth herein, in accordance with the applicable procedural rules set forth in the then prevailing Comprehensive Arbitration Rules and Procedures of JAMS (“JAMS Rules and Procedures”), unless any such rules are inapplicable to the dispute by their terms or otherwise inconsistent with these Terms. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The JAMS Rules and Procedures are available at www.jamsadr.com or by calling (800) 352-5267. The arbitrator shall be selected pursuant to the JAMS Rules and Procedures. The Federal Arbitration Act shall govern the enforceability, interpretation and effect of terms set forth in this provision. Otherwise, the arbitrator shall apply Illinois law or applicable federal law consistent with applicable statutes of limitations, and shall honor claims of privilege recognized at law. Payment of the parties’ costs and fees owed to JAMS and the arbitrator will be determined by the JAMS Rules and Procedures and fee schedule, and in such case will be subject to any limitations on the costs and fees owed by you as provided in the JAMS Rules and Procedures. If any part of this arbitration provision is deemed to be invalid, unenforceable or illegal (other than that claims will not be arbitrated on a class or representative basis), or otherwise conflicts with the rules and procedures established by JAMS, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, the portion that is deemed invalid, unenforceable or illegal is that claims will not be arbitrated on a class, representative, or collective basis, or as a private attorney general on behalf of other persons similarly situated, then the entirety of this arbitration provision shall be null and void, and neither you nor Company shall be entitled to arbitrate the dispute. THE ARBITRATION OF DISPUTES PURSUANT TO THIS PARAGRAPH SHALL BE IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU MAY NOT BRING ANY CLAIM AS A PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHER SIMILARLY SITUATED PERSONS.
BY AGREEING TO THE ARBITRATION OF DISPUTES AS SET FORTH HEREIN, YOU AGREE THAT YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL AND LIMITING YOUR RIGHT TO APPEAL, AND WAIVE ANY AND ALL RIGHTS TO PARTICIPATE IN A CLASS ACTION OR CLASS OR REPRESENTATIVE ARBITRATION. DO NOT USE THE APPLICATION IF YOU DO NOT AGREE TO THE FOREGOING BINDING ARBITRATION PROVISIONS.
Third Party Websites
The Application may hyperlink to sites not maintained by or related to Company. Hyperlinks are provided as a service to users and are not sponsored by or affiliated with the Application or Company, and Company makes no representations or warranties about the content, completeness, or accuracy of those third party sites. Information you submit at a third party site accessible from the Application is subject to the terms of that site's privacy policy, and Company has no control over how your information is collected, used, or otherwise handled.
Miscellaneous
Both you and Company acknowledge and agree that no partnership is formed and neither you nor Company has the power or the authority to obligate or bind the other. No rights or licenses granted hereunder are assignable or transferable by you without the prior written consent of Company; any attempt to do so shall be null and void ab initio. Company may assign these Terms in whole or in part.
These Terms will be governed by and construed in accordance with the internal laws of Illinois without regard to conflicts of laws principles. By using the Application, you agree that any litigation shall be subject to the exclusive jurisdictions of the state or federal courts located in Illinois, except as to any matters subject to the mandatory arbitration provision above. YOU AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL DISPUTES, CLAIMS, AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THE APPLICATION AND/OR THESE TERMS, WILL BE WITHOUT RESORT TO ANY FORM OF CLASS ACTION. These Terms operate to the fullest extent permissible by law. Notwithstanding anything to the contrary contained herein, nothing in these Terms will operate to limit or exclude Company’s liability for any matter for which Company’s liability cannot lawfully be limited or excluded.
If Company fails to act with respect to your breach or anyone else's breach on any occasion, Company is not waiving its right to act with respect to future or similar breaches. If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms constitute a binding agreement between you and Company, and is accepted by you upon your use of, or access to, the Application. From time to time, you and Company may enter into certain additional executed terms, conditions, and agreements which may limit your rights and/or impact your obligations under these Terms or otherwise relate to the access to, and use of, the Application (each, an “Additional Agreement”). These Terms, together with any applicable Master Agreement and fully executed Additional Agreement(s), constitute the entire agreement between you and Company regarding the use of the Application. In the event of any conflict between these Terms and any Master Agreement or Additional Agreement, these Terms shall control unless such Master Agreement and/or Additional Agreement specifically references these Terms and expressly states that such Master Agreement and/or Additional Agreement controls over these Terms. By using the Application you represent that you are capable of entering into a binding agreement, and that you agree to be bound by these Terms.