Equipment Operator Terms and Conditions • Service Provider Terms and Conditions
Equipment Operator Terms and Conditions
IMPORTANT NOTICE: THESE TERMS OF USE ARE SUBJECT TO BINDING ARBITRATION AGREEMENT AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN SECTION 11.
These Terms of Use (the “Terms” or “Agreement”) set forth the terms and conditions pursuant to which HELIXintel Corporation (“HELIXintel” and/or “we”) offers individuals and companies (each a “Person”) the ability to use (i) www.HELIXintel.com and any other websites, web pages, mobile applications and mobile websites (collectively, the “Site”); and (ii) any of the various services and offerings that HELIXintel provides via the Site or any other mediums (collectively, the “Services”, and sometimes together with the Site collectively, the “Platform”).
Please read these Terms before using the Platform. By using the Site or the Services, you hereby represent, warrant, understand, agree to and accept these Terms in their entirety whether or not you register as a user of the Platform (“User”).
Section 11 of these Terms contains an Agreement to Arbitrate (as hereinafter defined), which will, with limited exception, require you to submit claims you have against HELIXintel to binding and final arbitration, unless you opt out of the Agreement to Arbitrate no later than 30 days after the date you first use the HELIXintel Site or Services. Unless you opt out: (a) you will only be permitted to pursue claims against HELIXintel on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding; and (b) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
These Terms include the HELIXintel Privacy Policy, which is incorporated herein by reference. If you object to anything in these Terms or the Privacy Policy, you are not permitted to access or use the Platform.
These Terms are subject to change by HELIXintel at any time, subject to HELIXintel notifying you about any material changes by sending a notice to the email address registered in your HELIXintel account on the Site (“Account”), or by placing a prominent notice on the Site, so that you can choose whether to continue using the Platform. Material changes will go into effect no less than 30 days after such notification; provided, non-material changes or clarifications will take effect immediately upon posting of the updated Terms on the Site. Any use of the Site and/or Services by you after the effective date of any changes will constitute your irrevocable acceptance of such changes.
1. Services; Limitations; User Responsibilities.
1.1. Platform Basics. HELIXintel offers various Services to help its Users find, coordinate, and maintain certain equipment, which include, without limitation:
(a) We provide data management services to allow Persons (each a “Maintenance Seeker”) to load asset data points and match with Persons who provide maintenance services (such as manufacturers, distributors, dealers and authorized representatives) (each a “Maintenance Provider”).
(b) We provide a platform to connect Maintenance Seekers with Maintenance Providers, and we provide a communications platform that allows Maintenance Seekers and Maintenance Providers to communicate without sharing contact information.
(c) We provide a directory of entity Maintenance Providers from which Maintenance Seeker may contact or request information.
1.2. Limitations of our Services. While we offer a variety of Services to help our Users find, coordinate, and maintain equipment, HELIXintel does not employ any Maintenance Providers or provide any maintenance services of any type. Except as set forth below, all Users, including, without limitation, Maintenance Seekers and Maintenance Providers, are solely responsible for compliance with all applicable laws, rules and regulations, including, without limitation, employment and other laws in connection with any employment relationship they establish (such as applicable payroll, tax and minimum wage laws). Further, we do not have control over the quality, timing, or legality of the services actually delivered by Maintenance Providers, or of the integrity, responsibility or actions of Maintenance Seekers or Maintenance Providers and we neither refer or recommend Maintenance Seekers or Maintenance Providers nor make any representations about the suitability, reliability, timeliness, or accuracy of the services provided by Maintenance Providers or the integrity, responsibility or actions of Maintenance Seekers or Maintenance Providers whether in public, private or offline interactions.
In providing the Site and Services, neither we, nor our respective employees are making a referral to, or endorsing, any individual, company or agency nor are we providing any maintenance, diagnostic, recommendation or service or engaging in any conduct that requires a professional license.
Maintenance Seeker and Maintenance Provider content is primarily User generated, and we do not control or vet User generated content for accuracy. HELIXintel does not assume any responsibility for the accuracy or reliability of any information provided by Maintenance Providers or Maintenance Seekers on or off the Platform.
HELIXintel is not responsible for the conduct, whether online or offline, of any Maintenance Seeker, Maintenance Provider, or other User of the Platform and in addition thereto, HELIXintel does not assume and expressly disclaims any liability that may result from the use of information provided on our Site and/or via the Services. All Users, including Maintenance Seekers and Maintenance Providers, hereby expressly agree not to hold HELIXintel (or HELIXintel’s officers, directors, shareholders, employees, subsidiaries, other affiliates, successors, assignees, agents, representatives, advertisers, marketing partners, licensors, independent contractors, recruiters, corporate partners or resellers, hereinafter “Affiliates”) liable for the actions or inactions of any Maintenance Seeker, Maintenance Provider or other User or third party or for any information, instruction, advice or services which originated through the Site and the Services, and, HELIXintel and its Affiliates expressly disclaims any liability whatsoever for any damage, suits, claims, and/or controversies that have arisen or may arise, whether known or unknown therefrom.
1.3. User Responsibilities. Any information regarding a Maintenance Seeker or Maintenance Provider set forth on the Site and/or provided via the Services is limited and should not be taken as complete, accurate, up-to-date or conclusive. Users are solely responsible for interviewing, performing background and reference checks on, verifying information provided by, and selecting an appropriate Maintenance Seeker or Maintenance Provider for themselves.
2. Eligibility to Use the Site and Services. By requesting to use, registering to use and/or using the Site or the Services, you represent and warrant that you have the right, authority and capacity to enter into this Agreement and you commit to abide by all of the terms and conditions hereof, regardless if you any become a registered User. You also represent and warrant that you meet the following eligibility criteria:
(a) You are eighteen (18) years of age or older. If you do not meet the above age requirements, do not use the Site or Services. HELIXintel will not knowingly collect any information from individuals under 13 years of age. Should we determine that you do not meet the age requirements for using the Platform, your registration will be terminated immediately.
(b) You must not be a competitor of HELIXintel or use the Platform for reasons that are in competition with and/or harmful to HELIXintel in any way.
(c) Your registration and use of the Platform is in compliance with all applicable laws and regulations and will not violate any other agreement to which you are a party.
(d) If you are a Maintenance Seeker, you may use the Platform and your Account only to find maintenance for yourself, your company or your account. If you are a Maintenance Provider, you may use the Platform and your Account only to find maintenance jobs for yourself. You are responsible for all activity on and use of your Account, and you may not assign or otherwise transfer your Account to any other Person.
To obtain an Account you must provide a valid e-mail address, supply a username and password as well any such other additional information as HELIXintel shall require. It is your responsibility to maintain the confidentiality of your user name and password, and by submitting to the registration process, you agree that: (i) you are fully responsible for all manners of the use of your user name, password and Account; (ii) you will keep your user name and password confidential and not share it with anyone else; (iii) you will immediately notify HELIXintel of any unauthorized use of your user name and password or Account; and (iv) HELIXintel will not be liable for any damage or loss that may arise due to improper use of your user name, password or Account by you or someone else with or without your authorization.
By registering for a HELIXintel Account, you acknowledge and agree that HELIXintel is permitted to access, preserve, and disclose your Account information or Content (as defined below) if it is required to do so by law or based upon a good faith belief that such access, preservation, or disclosure is reasonably necessary to: (i) enforce these Terms; (ii) comply with any mandatory requests for information made by a law enforcement agency, internet service provider or other third-party in the course of a legal proceeding; or (iii) protect the rights and/or safety of HELIXintel, the Site and/or Service, other Users or the public.
3. Rules for User Conduct and Use of Services.
3.1. Posting, and Content Restrictions. The following rules pertain to any communications, images, sounds, videos, and all the material, data, and information that you upload or transmit through the Site or Services, or that other Users upload or transmit, including, without limitation, any content, messages, photos, audios, videos, reviews or profiles that you publish or display (collectively, “Content”). By posting any Content while using the Platform, you agree, represent and warrant as follows:
(a) You are responsible for providing accurate, current and complete information in connection with your registration for use of the Platform.
(b) You will register your Account in your own legal name, even if you are seeking maintenance for another individual or company.
(c) You are solely responsible for any Content that you post on the Platform, or transmit to other Users of the Platform. You will not post on the Platform, or transmit to other Users, any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, offensive, or illegal material, or any material that infringes or violates another party’s rights (including, without limitation, intellectual property rights, and rights of privacy and publicity), or advocate, promote or assist any unlawful act. You will not provide inaccurate, misleading, defamatory or false information to HELIXintel or to any other User of the Platform. Without limiting the foregoing, you represent and warrant to us that you have the right and authority to post all Content you post about yourself or others.
(d) You understand and agree that HELIXintel may, in its sole discretion, review, edit, and delete any Content, in whole or in part, that in the sole judgment of HELIXintel violates these Terms or which HELIXintel determines in its sole discretion might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Users of the Platform.
(e) You have the right, and hereby grant, to HELIXintel, its Affiliates, licensees and successors, an irrevocable, perpetual, non-exclusive, fully paid-up, transferable, worldwide license to use, copy, perform, display and distribute your Content and incorporate into other works, such Content, and to grant and authorize sublicenses of the foregoing. You further represent and warrant that public posting and use of your Content by HELIXintel will not infringe or violate the rights of any third party.
(f) Your use of the Platform, including, without limitation, Content you post on the Site, must be in accordance with any and all applicable laws and regulations.
(g) HELIXintel is not responsible for any claims relating to any inaccurate, untimely or incomplete Content provided by Users of the Platform.
(h) You agree that any Content, comments, ideas, messages, questions, suggestions, or other communications you send to us or share with us through any channel (including, without limitation, the Site, email, telephone, surveys, and our social media accounts) shall be and remain the exclusive property of HELIXintel and we may use all such Content, communications, all without notice to, consent from, or compensation to you or others.
Opinions, advice, statements, offers, or other information or other Content made available on or through Platform, but not directly by HELIXintel, are those of their respective authors. Such authors are solely responsible for such Content. HELIXintel does not: (i) guarantee the accuracy, completeness, or usefulness of any information available on or through the Platform; or (ii) adopt, endorse or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by any party that appears on or through the Platform. Under no circumstances will HELIXintel or its Affiliates be responsible for any loss or damage resulting from: (a) your reliance on information or other Content posted on the Platform or transmitted to or by any User of the Platform; or (b) reviews or comments made about you on the Platform by other Users.
HELIXintel disclaims any liability whatsoever for any misstatements and/or misrepresentations made by any Users of the Platform. Users hereby represent, understand and agree to hold HELIXintel harmless for any misstatements and/or misrepresentations made by or on behalf of them on the Platform or in any other venue.
3.2. Prohibited Uses. By using the Platform, you agree that you will not under any circumstances:
(a) use the Platform, or any Content and other information contained therein in any way that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable and offensive;
(b) use the Platform for any fraudulent or unlawful purpose, for any purpose not expressly intended by HELIXintel or for the promotion of illegal activities;
(c) harass, abuse or harm another Person or group, or attempt to do so;
(d) use another User’s HELIXintel Account;
(e) provide false or inaccurate information when registering a HELIXintel Account, using the Platform or communicating with other Users or other Persons;
(f) attempt to re-register with HELIXintel if we have previously terminated your Account for any or no reason, or terminate your registration and re-register in order to prevent a review from being associated with your Account;
(g) interfere or attempt to interfere with the proper functioning of the Platform;
(h) make any automated use of the Platform, or take any action that we deem to impose or to potentially impose an unreasonable or disproportionately large load on our servers or network infrastructure;
(i) bypass any robot exclusion headers or other measures we take to restrict access to the Service or use any software, technology, or device to scrape, spider, or crawl the Platform or harvest or manipulate data (whether manually or through automated means);
(j) use the communication systems provided by or contacts made on HELIXintel for any commercial solicitation purposes;
(k) publish or link to malicious content intended to damage or disrupt another User’s browser or computer;
(l) not to infringe or use, in any manner, HELIXintel’s brand, logos or trademarks, including, without limitation, using the word “HElIXintel” in any business name, email, URL or otherwise; and
(m) not to recruit or otherwise solicit any User to join third-party services or websites that are competitive to HElIXintel, or attempt in any manner to circumvent the obligation to pay any Fees related to HELIXintel’s provision of Services or otherwise.
Should HELIXintel determine that you violated the terms of this Agreement, HELIXintel reserves the right, at its sole discretion, to take any such actions it deems necessary, including, without limitation, immediately terminating your use of the Site and Services and/or blocking you from accessing the Platform in accordance with Section 4 hereof. By using the Platform, you agree that HELIXintel may assess, and you will be obligated to pay, $10,000 per each day that you: (i) maintain Maintenance Provider or Maintenance Seeker information (including, without limitation, to, names, addresses, phone numbers, or email addresses) or copyrighted material that you scraped (either directly or indirectly in a manual or automatic manner) from the Platform; or (ii) otherwise mis-use or mis-appropriate Platform Content, including, without limitation, use on a “mirrored”, competitive, or third party site. This obligation shall be in addition to any other rights HELIXintel may have under these Terms or applicable law.
4. Termination. HELIXintel reserves the right, in its sole discretion, to immediately terminate your access to all or part of the Platform, to remove your profile and/or any Content posted by or about you from the Site, and/or to terminate your Account, with or without notice for any reason or no reason in its sole discretion. Upon termination, HELIXintel shall be under no obligation to provide you with a copy of any Content posted by or about you on the Site. Following any termination of any User’s use of the Platform, HELIXintel reserves the right to send a notice thereof to other Users with whom we believe the terminated User has corresponded.
5. Privacy. HELIXintel uses the User Content provided on the Platform in accordance with our Privacy Policy, which governs HELIXintel’s collection and use of your personal information. For more information, see our full Privacy Policy, the terms of which are incorporated herein by reference.
6. Links to External Sites. Links from the Site to external sites (including external sites that are framed by HELIXintel) or inclusion of advertisements and other third-party content do not constitute an endorsement by HELIXintel of such sites or the content, products, advertising and other materials presented on such sites or of the products and services that are the subject of such third-party content, but are for Users’ reference and convenience.
Users access them at their own risk. It is the responsibility of the User to evaluate the content and usefulness of the information obtained from other sites. HELIXintel does not control such sites, and is not responsible for their content.
Users further acknowledge that use of any site or content controlled, owned or operated by third parties is governed by the terms and conditions of use for those sites, and not by these Terms and the Privacy Policy. HELIXintel expressly disclaims any liability derived from the use and/or viewing of links that may appear on the Site. All Users hereby agree to hold HELIXintel harmless from any liability that may result from the use of links that may appear on the Site.
7. Payment Terms. In order to utilize some HELIXintel Services, the User of such Services must pay HELIXintel all fees and charges assessed by HELIXintel for access to such Services (collectively, “Fees”), as set forth on the Site and as may be amended and revised from time to time. The payment of such Fees shall be due and payable at such times as set forth on the Site and shall be made in U.S. Dollars (USD) by ACH electronic funds transfer, credit card, or by other arrangements made available via the Platform and acceptable to HELIXintel (each a, “Payment Method”). The User is responsible for any and all state or local sales taxes associated with the Services. All Fees are non-refundable.
In addition to whatever rights of set-off HELIXintel may have under any applicable law, if the User or any party affiliated with such User (“User Affiliate”) fails to pay Fees or other amounts owing when due to HELIXintel, HELIXintel will be entitled to immediately set off the amount owed by such User and/or the User Affiliate from any funds owing by HELIXintel to the User and/or the User Affiliate. In addition, if you fail to pay any Fees on the date such fees are due, we may: (a) electronically debit your bank account or credit card; (b) withhold HELIXintel Services until all amounts owed have been paid; (c) cancel a pending or underlying transaction; (d) charge late payment fees as set forth on the Site; and/or (e) pursue any other remedy or relief permitted by law. If we accept payment from you by electronic check, you authorize HELIXintel to initiate debit entries to your account at the financial institution on which the electronic check was written. The electronic check debit authorization will remain in force until we have received written notice from you of its termination. HELIXintel reserves the right to decline payment by electronic check at any time and for any reason. Any Payment Method withdrawn, rejected or returned for non-sufficient funds (“NSF”) must be settled and replaced immediately. NSF transactions will be subject to a service charge up to [10%] of the applicable Fees and shall be immediately due and payable. You agree to pay all costs including, without limitation, attorney fees, court costs and other expenses reasonably incurred by HELIXintel, to collect any monies owing by you.
8. Release of Liability for Conduct and Disputes. HELIXintel is not an employer of Maintenance Providers and provides no maintenance services or related activities. Maintenance Seekers may seek the services of a Maintenance Provider through the use of the Platform, and Maintenance Providers may submit proposals to Maintenance Seekers regarding their services.
In certain instances, we may provide Maintenance Seekers a customized list of potential Persons to consider based on the information the Maintenance Seeker provides us regarding their needs and preferences. However, if a Maintenance Seeker agrees on the provision of services from a Person we identified through any of those Services, such agreement is solely between the Maintenance Seeker and the Maintenance Provider; and all parties hereby acknowledge and agree that HELIXintel is NOT a party to any such agreement.
By using the Platform, you hereby represent, understand, and expressly agree to hold HELIXintel harmless for any claim or controversy that may arise out of the actions of or relationship between you and any Maintenance Seeker, Maintenance Provider or other User(s) of the Platform. You agree to take reasonable precautions in all interactions with Maintenance Seekers, Maintenance Providers or other Users of the Platform, particularly if you decide to meet offline. By using the Site or the Services, you agree to report any alleged improprieties of any Users therein to HELIXintel immediately by notifying HELIXintel of the same via electronic correspondence to info@HELIXintel.com
9. Disclaimers; Limitations; Waivers; Indemnification.
9.1. No Warranty. The information and materials contained on the Site, including Content, text, graphics, information, links or other items are provided “as is”, “as available”. Further, opinions, advice, statements, offers, or other information or Content made available through the Platform, but not directly by HELIXintel are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such Content. HELIXINTEL DOES NOT: (a) WARRANT THE ACCURACY, ADEQUACY OR COMPLETENESS OF THIS INFORMATION, CONTENT AND MATERIALS; (b) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY OTHER THAN HELIXINTEL; (c) WARRANT THAT YOUR USE OF THE PLATFORM WILL BE SECURE, FREE FROM COMPUTER VIRUSES, UNINTERRUPTED, ALWAYS AVAILABLE, ERROR-FREE OR WILL MEET YOUR REQUIREMENTS, OR THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED; OR (d) GIVE ANY WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, OF FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HELIXINTEL EXPRESSLY EXCLUDES ALL CONDITIONS, REPRESENTATIONS, WARRANTIES AND OTHER TERMS, INCLUDING, WITHOUT LIMITATION, ANY ALL CONDITIONS, REPRESENTATIONS, WARRANTIES AND OTHER TERMS WHICH MIGHT OTHERWISE BE IMPLIED BY STATUTE, COMMON LAW OR THE LAW OF EQUITY AND DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN CONTENT, INFORMATION, MATERIALS, THE SITE AND/OR THE SERVICES.
IN ADDITION, AND WITHOUT LIMITING THE FOREGOING, HELIXINTEL MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHETHER EXPRESS OR IMPLIED REGARDING THE SUITABILITY OF ANY USER OF OUR SITE TO PROVIDE SERVICES AS A MAINTENANCE PROVIDER OR TO EMPLOY THE SERVICES OF A MAINTENANCE PROVIDER.
9.2. Assumption of Risk. You assume all risk when using the Site and the Services, including, without limitation all of the risks associated with any online or offline interactions with Users of the Site or the Services.
9.3. Limitation of Liability.
(a) Incidental Damages and Aggregate Liability. In no event will HELIXintel be liable for any indirect, special, incidental, or consequential damages, losses or expenses arising out of or relating to the use or inability to use the Site or Services, including, without limitation, damages related to any information received from the Platform, removal of Content from the Site, including profile information, any email distributed to any User or any linked web site or use thereof or inability to use by any party, or in connection with any termination of your subscription or ability to access the Platform, failure of performance, error, omission, interruption, defect, delay in operation or transmission, computer virus or line or system failure, even if HELIXintel, or representatives thereof, are advised of the possibility of such damages, losses or expenses. UNDER NO CIRCUMSTANCES WILL HELIXINTEL’S AGGREGATE LIABILITY, IN ANY FORM OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE PLATFORM, EXCEED THE FEES PAID BY YOU TO HELIXINTEL IN THE SIX MONTH PERIOD PRIOR TO ANY SUCH UNDERLYING INCIDENT, OR, IN THE EVENT YOU HAVE NOT PAID FEES TO HELIXINTEL DURING SUCH TIME PERIOD, AN AMOUNT EQUAL TO $25.00.
(b) No Liability for non-HELIXintel Actions. IN NO EVENT WILL HELIXINTEL BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, AND/OR CONSEQUENTIAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE PLATFORM OR ANY AGREEMENT OR RELATIONSHIP FORMED USING THE PLATFORM, INCLUDING, WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM ANYONE’S RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE SITE, OR TRANSMITTED TO OR BY ANY USERS OR ANY OTHER INTERACTIONS WITH OTHER USERS OF THE PLATFORM, WHETHER ONLINE OR OFFLINE. THIS INCLUDES ANY CLAIMS, LOSSES OR DAMAGES ARISING FROM THE CONDUCT OF USERS WHO HAVE REGISTERED UNDER FALSE PRETENSES OR WHO ATTEMPT TO DEFRAUD OR HARM YOU.
In addition to the preceding paragraphs of this section and other provisions of these Terms, any advice that may be posted on the Site is for informational purposes only and is not intended to replace or substitute for any professional financial, legal, or other advice. HELIXintel makes no representations or warranties and expressly disclaims any and all liability concerning any treatment, action by, or effect on any Person following the information offered or provided within or through the Platform.
9.4. Indemnification. By agreeing to these Terms, Users of the Platform agree to indemnify, defend and hold harmless HELIXintel and its Affiliates from and against any and all claims, losses, expenses or demands of liability, including, without limitation, reasonable attorneys’ fees and costs incurred by HELIXintel and its Affiliates in connection with any claim by a third party (including an intellectual property claim) arising out of (a) materials and Content you submit, post or transmit through the Site; (ii) use of the Platform by you in violation of these Terms or in violation of any applicable law; or (iii) any relationship or agreement formed with a Maintenance Seeker or Maintenance Provider using the Platform. Users further agree that they will cooperate as reasonably required in the defense of such claims. HELIXintel and its Affiliates reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Users, and Users shall not, in any event, settle any claim or matter without the written consent of HELIXintel. Users further agree to hold harmless HELIXintel and its Affiliates from any claim arising from a third party’s use of information, materials or other Content of any kind that Users post to the Site.
10. Copyright Notices/Complaints. HELIXintel respects the intellectual property of its Users and all other third parties. It is therefore HELIXintel’s policy to disable and/or terminate the Accounts of Users who infringe upon, or are suspected of infringing upon, the intellectual property rights of others. In determining whether a User’s Account should be disabled and/or terminated pursuant to this Section 10, HELIXintel will use appropriate discretion in light of the circumstances.
If you are a copyright owner, or an agent of a copyright owner, and believe any User Content posted on the Site and/or available via the Services infringes upon your intellectual property rights, you must submit a “Notification of Claimed Infringement” to HELIXintel under the Digital Millennium Copyright Act. The notice must contain the following:
(a) A clear identification of the copyrighted work in question. If multiple copyrighted works are at issue, you may provide an enumerated list of the copyrighted works.
(b) A clear identification of the claimed infringing material, including a description of where the claimed infringing material can be found on the HELIXintel Platform. The description should be sufficient to locate the material, and should include, when applicable, a URL linking to the webpage containing the claimed infringing material.
(c) Your mailing address, your telephone number, and, if available, your e-mail address.
(d) Statements reiterating the following:
(i) “I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.”
(ii) “I hereby state the following under penalty of perjury: (A) the information in this Notice is accurate; and (B) that I am the owner of, or am authorized to act on behalf of the owner of, either the copyright in question or the right to exclusive use of the copyright in question.”
(e) Your full legal name and your physical or electronic signature.
All Notices of Claimed Infringement should be directed to HELIXintel’s Designated Copyright Agent by e-mail or certified mail, as set forth below:
e-mail: info@HELIXintel.com
certified mail: Attn: HELIXintel Designated Copyright Agent, 3525 Lakeview Rd., Hamburg, NY 14075
11. Arbitration.
11.1. Agreement to Arbitrate. Unless you opt-out in accordance with the opt-out procedures set forth in Section 11.7 below, you agree that all claims relating to or arising out of these Terms or the breach thereof, whether sounding in contract, tort, or otherwise that have arisen or may arise between you and HELIXintel and/or a HELIXintel Affiliate, whether relating to these Terms (including any alleged breach thereof), the Services, the Site, or otherwise, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Section 11, except you may assert individual claims in small claims court, if your claims qualify. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. This Section 11 is referred to in these Terms as the “Arbitration Agreement”.
11.2. Pre-Arbitration Dispute Resolution. HELIXintel is always interested in resolving disputes amicably and efficiently and as such, before you commence arbitration, we suggest that you contact us to explain your complaint, as we may be able to resolve it without the need for arbitration. You may contact us via email at Jon.DeWald@HELIXintel.com or HELIXintel Corporation, Attn: Legal Department, 3525 Lakeview Rd., Hamburg, NY 14075.
11.3. Arbitration Procedures. If we cannot resolve a claim informally, any claim either of us asserts will be resolved only by binding arbitration and not in courts of general jurisdiction. Arbitration will be conducted by a neutral arbitrator in accordance with the rules of JAMS that are in effect at the time the arbitration is initiated (collectively the “JAMS Rules”), as modified by this Arbitration Agreement, and excluding the JAMS Class Action Procedures. For information on JAMS, please visit its website, https://www.jamsadr.com/. If there is any inconsistency between the JAMS Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would, including, without limitation, the limitation of liability provisions in Section 9. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
To commence an arbitration against HELIXintel, you must write a demand for arbitration that includes a description of the dispute and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at www.jamsadr.com. You should send three copies of the demand, plus the appropriate filing fee, to JAMS at [500 North State College Blvd., Suite 600, Orange, CA 92868], and send one copy to HELIXintel at HELIXintel Corporation, Attn: Legal Department, 3525 Lakeview Rd., Hamburg, NY 14075. For more information, see the JAMS arbitration rules and forms, https://www.jamsadr.com/rules-download/. You may represent yourself in the arbitration or be represented by an attorney or another representative. Once we receive your arbitration claim, we may assert any counterclaims we may have against you.
The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less you or HELIXintel may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and HELIXintel subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by you and/or HELIXintel, unless the arbitrator requires otherwise.
The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all claims relating to or arising out of this Agreement, or the breach thereof, whether sounding in contract, tort, or otherwise and all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, without limitation, any claim that all or any part of these Terms are void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of New York, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different HELIXintel Users, but is bound by rulings in prior arbitrations involving the same HELIXintel User to the extent required by applicable law.
11.4. Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the JAMS Rules, unless otherwise provided in this Agreement to Arbitrate. If you demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, HELIXintel will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, HELIXintel will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Each party will be responsible for all other fees it incurs in connection with the arbitration, including, without limitation, all attorney fees. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse HELIXintel for all fees associated with the arbitration paid by HELIXintel on your behalf that you otherwise would be obligated to pay under the JAMS rules.
11.5. Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND HELIXINTEL AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ARBITRATION, ACTION OR PROCEEDING. UNLESS BOTH YOU AND HELIXINTEL EXPRESSLY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AGAINST THE OTHER PARTY AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER HELIXINTEL USERS. If any court or arbitrator determines that the class action waiver set forth in this Section 11.5 is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
11.6. Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
11.7. Opt-Out Procedure. You can choose to reject this Arbitration Agreement by mailing us a written opt-out notice (“Opt-Out Notice”) in accordance with the terms of this Section 11.7, which the Opt-Out Notice must be postmarked no later than 30 days after the date you use our Site or Services for the first time. You must mail the Opt-Out Notice to HELIXintel Corporation, Attn: Legal Department, 3525 Lakeview Rd., Hamburg, NY 14075. The Opt-Out Notice must state that you do not agree to the Arbitration Agreement and must include your name, address, phone number, and the email address(es) used to log in to the HELIXintel Account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Arbitration Agreement. If you opt out of the Arbitration Agreement, HELIXintel will likewise not be bound by these arbitration provisions; provided all other terms of these Terms will continue to apply. Opting out of the Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with us.
11.8. Future Changes to this Arbitration Agreement. Notwithstanding any provision in these Terms to the contrary, you and we agree that if we make any change to this Arbitration Agreement (other than a change to any notice address or website link provided herein) in the future, such change shall not be effective until at least 60 days from the date of posting, and shall not apply to any claim that was filed in a legal proceeding against HELIXintel prior to the effective date of the change. Moreover, if we seek to terminate this Arbitration Agreement from these Terms, such termination shall not be effective until 30 days after the version of these Terms not containing the Arbitration Agreement is posted to the Site, and shall not be effective as to any claim that was filed in a legal proceeding against HELIXintel prior to the effective date of removal.
12. Governing Law and Jurisdiction. These Terms, and all claims relating to or arising out of this Agreement, or the breach thereof, whether sounding in contract, tort, or otherwise, shall be governed by the laws of the State of New York, including New York’s statutes of limitations governing your claim, without giving effect to its principles of conflicts of law, provided that the Federal Arbitration Act shall govern the interpretation and enforcement of Section 11, the Arbitration Agreement.
Unless you and we agree otherwise, in the event that the Arbitration Agreement is found not to apply to you or to a particular claim or dispute (except for small-claims court actions), either as a result of your decision to opt-out of the Arbitration Agreement or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and HELIXintel must be resolved exclusively by a state or federal court located in the State of New York in the County of Erie. You and HELIXintel agree to submit to the personal jurisdiction of the courts located within the State of New York in the County of Erie for the purpose of litigating all such claims or disputes.
13. Consent to Electronic Communication. By using the Site or Services, you agree to allow HELIXintel to communicate with you electronically, and you consent to electronic delivery of notices, documents, or products from HELIXintel via the Site, mobile application, online messaging platform, or e-mail. You also agree to check your Account, alerts, and messages, and the e-mail account associated with your Account on a reasonably regular basis to stay apprised of important notices and information about your Account.
14. Miscellaneous. (a) You agree that these Terms and the Privacy Policy, all of which are incorporated by reference, constitute the entire, complete and exclusive agreement between you and HELIXintel regarding the Site and/or the Services and supersede all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of these Terms and the Privacy Policy. (b) Our failure to act with respect to a breach of these Terms by you or others does not waive our right to act with respect to that breach or subsequent similar or other breaches. Except as expressly and specifically contemplated by these Terms, no representations, statements, consents, waivers or other acts or omissions by HELIXintel shall be deemed legally binding unless documented in a physical writing hand signed by a duly appointed officer of HELIXintel. No joint venture, partnership, employment of agency relationship exists between you and HELIXintel as a result of these Terms or use of the Site and/or Services. (c) You may not assign or delegate any rights or obligations under these Terms. Any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under these Terms, fully or partially without notice to you. (d) If a court decides that any term or provision of these Terms other than Section 11.5 is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and these Terms shall be enforceable as so modified. If a court decides that any of the provisions of Section 11.5 are invalid or unenforceable, then the entirety of Section 11 shall be null and void. The remainder of the Terms will continue to apply.
This policy is effective as of 27 Jul 2020.
Service Provider Terms and Conditions
You (referred to herein as “Vendor, You, or Client”) are agreeing to enter into a Services Agreement (the “Agreement”) with HELIXintel Corporation together with its subsidiaries and Affiliates (“Provider or Platform Provider”). You and Provider are each or sometimes referred to individually as a “Party” or collectively as the “Parties.”
IMPORTANT NOTICE: THESE TERMS OF USE ARE SUBJECT TO BINDING ARBITRATION AGREEMENT AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN SECTION 10.
These Terms and Conditions (the “Terms” or “Agreement”) set forth the terms and conditions pursuant to which Provider offers you the ability to use (i) www.HELIXintel.com and any other websites, web pages, mobile applications and mobile websites (collectively, the “Site”); and (ii) any of the various services and offerings that Provider provides via the Site or any other mediums (collectively, the “Services”, and sometimes together with the Site collectively, the “Platform”).
Please read these Terms before using the Platform. By using the Site or the Services, you hereby represent, warrant, understand, agree to and accept these Terms in their entirety whether or not you register as a user of the Platform (“User”).
Section 10 of these Terms contains an Agreement to Arbitrate (as hereinafter defined), which will, with limited exception, require you to submit claims you have against Provider to binding and final arbitration, unless you opt out of the Agreement to Arbitrate no later than 30 days after the date you first use the Site or Services. Unless you opt out: (a) you will only be permitted to pursue claims against Provider on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding; and (b) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
These Terms are subject to change by Provider at any time, subject to Provider providing notice about any material changes by sending a notice to the email address registered in your HELIXintel account on the Site (“Account”), or by placing a prominent notice on the Site, so that you can choose whether to continue using the Platform. Material changes will go into effect no less than 30 days after such notification; provided, non-material changes or clarifications will take effect immediately upon posting of the updated Terms on the Site. Any use of the Site and/or Services by you after the effective date of any changes will constitute your irrevocable acceptance of such changes.
1. Definitions.
“Affiliate” means any entity that, directly or indirectly, a Party substantially has the power to direct or cause the direction of the management and set the policies of such company or entity.
“Authorized User” means (i) Client’s employees, consultants, contractors, and agents who are authorized by Client to access and use the Service under the rights granted to Client pursuant to this Agreement and (ii) Client’s customers who are authorized by Client to use the Services in accordance with Section 2(b) of the Agreement.
“Client Data” means, other than Resultant Data, Client’s Personal Information and/or Proprietary Information.
“Confidential Information” means a Party’s Personal Information and/or Proprietary Information. Confidential Information excludes information that (a) is publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing Party through no action or inaction of the receiving Party; (b) is already in the possession of the receiving Party at the time of disclosure by the disclosing Party, as shown by the receiving Party’s files and records provided that receiving Party provides such notice to the disclosing Party upon disclosure of information; (c) is obtained by the receiving Party from a third party without a breach of the third party’s obligations of confidentiality, or (d) is independently developed by the receiving Party without the use of or reference to the disclosing Party’s Confidential Information, as shown by contemporaneous documents and other competent evidence in the receiving Party’s possession. For purposes of clarity, Provider hereby acknowledges that all Client Data is Confidential Information of Client.
“Documentation” means Provider’s documentation, in all forms, relating to the Service (e.g., user manuals, online help files, etc.) as may be provided to, or made available to the Client from time to time.
“Personal Information” means any information which because of name, number, personal mark, or other identifiers can be used to identify an individual, in combination with any one or more of the following data elements: (i) social security number, (ii) drivers’ license number or non-driver identification card number, (iii) account number, credit or debit card number, or (iv) any security code, access code or password that would permit access to an individual’s financial account or a username or email address in combination with a password or security question and answer that would permit access to an online account.
“Proprietary Information” means information that is not publicly available and is related to a Party’s business affairs, products, confidential intellectual property, trade secrets, third party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated or otherwise identified as “confidential” or “proprietary”, the tampering with which, or unauthorized disclosure, access, or use of which, would cause a material adverse impact to the business, operations, or security of that Party.
“Provider Content” means the Service, Documentation, and Provider Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Provider or any Subcontractor in connection with the Service or otherwise comprise or relate to the Service or Provider Systems. For the avoidance of doubt, Provider Content includes Resultant Data (as defined below) and any information, data, or other content derived from Provider’s monitoring of Client’s access to or use of the Services but does not include Client Data.
”Provider Systems” means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Provider or through the use of third party services.
“Resultant Data” means data and information related to Client’s use of the Service that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Service, but never to re-identify Client.
“Service” means the service identified in the Vendor Agreement, as may be modified from time to time, upon prior written consent of both Parties.
“Service Fees” means the fees for the Services specified in the Vendor Agreement.
“Vendor Agreement” means the online document entered into between Provider and Client specifying the services to be provided thereunder, including any addenda and supplements thereto. By entering into a Vendor Agreement under this Agreement, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original Party to the Agreement.
“Updates” means subsequent releases and versions of the software and/or services that Provider makes generally available to its customers without requiring an additional license or fee.
2. Use of the Service.
(a) Use of Service. Subject to the Client’s payment of Service Fees for the Service as set out on the Vendor Agreement, during the Term, Provider grants to Client a non-exclusive, non-transferable, non-sublicensable right to use the Service and any third party products or software that are included in the Service, solely for use by Authorized Users in accordance with the terms and conditions herein. Client shall cause all Authorized Users to comply with Provider’s then-current terms and conditions of use.
(b) Use Restrictions. Client shall not, and shall not permit any other person to, access or use the Service or Provider Content except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Client shall not, except as this Agreement expressly permits: (i) copy, modify, or create derivative works or improvements of the Services or Provider Content; (ii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Service or Provider Content, in whole or in part; (iii) bypass or breach any security device or protection used by the Service or Provider Content or access or use the Service or Provider Content other than by an Authorized User through the use of his or her own then valid access credentials; (iv) input, upload, transmit, or otherwise provide to or through the Service or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code; (v) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Service, Provider Systems, or Provider’s provision of services to any third party, in whole or in part; (vi) remove, delete, alter, or obscure any trademarks or other intellectual property or proprietary rights notices from any Service or Provider Content, including any copy thereof; (vii) access or use the Service or Provider Content in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party, or that violates any applicable law; (ix) access or use the Services or Provider Content for purposes of competitive analysis of the Services or Provider Content, the development, provision, or use of a competing software service or product or any other purpose that is to the Provider’s detriment or commercial disadvantage; or (xi) otherwise access or use the Services or Provider Content beyond the scope of the authorization granted under this Section.
(c) Maintenance. As between the Parties, Provider has and will retain sole control over the operation, provision, maintenance, and management of the Service, including, without limitation: (i) software and other systems that provide the Service; (ii) locations where the Service is hosted; (iii) selection, deployment, patching, updating, modification, repair and replacement of the Service or related software and technologies pursuant to documented severity and risk assessment guidelines provided by Provider; and (iv) performance of Service maintenance, upgrades, corrections, patching, Updates, and repairs.
(d) Changes to the Service. Provider reserves the right, in its sole discretion, to make any changes to the Service and Documentation that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Provider’s services to its customers; (ii) the competitive strength of or market for Provider’s services; or (iii) the Service’s cost efficiency or performance; or (b) to comply with applicable Law. Notwithstanding the foregoing, Provider will not make any changes that will materially diminish the functioning of the Services.
(e) Use of Provider Content. Subject to the terms and conditions of this Agreement, during the Term, Provider grants the Client a worldwide, non-exclusive, non-transferable (except as explicitly permitted in this Agreement) right to use the Provider Content included in the Service for its internal use only. The Client does not have a right to license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercialize to any third party such content in any way.
(f) Authorized Users Only. Client shall limit the use of the Service to only Authorized Users and will remain solely responsible and liable for the acts and omissions of Authorized Users. An Authorized User account and any access credentials associated with such account is solely for use by such Authorized Users and cannot be shared or provided to any other person or entity, including, any other Authorized User.
(g) Reservation of Rights. Provider reserves all rights not expressly granted to Client in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Client or any third party any intellectual property rights or other right, title, or interest in or to the Provider Content, Provider intellectual property, or Provider Confidential Information.
3. Confidentiality.
(a) Confidential Information. In connection with this Agreement, each Party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (as the “Receiving Party”).
(b) Client Data. Client Data is Client property and Client Confidential Information.
(c) Protection of Confidential Information.
(i) Each Party hereby agrees that any Confidential Information received by it will be used solely for purposes relating to the performance of its obligations under this Agreement, and that such information will be kept confidential by the Receiving Party; provided, however, that any such information may be disclosed to the Receiving Party’s directors, officers, employees, representatives or advisors who need to know such information for purposes relating to the performance of its obligations under this Agreement; and provided, however, that the Receiving Party may disclose such Confidential Information if required by law, pursuant to a subpoena or order issued by a court of competent jurisdiction or by a government or administrative body or pursuant to a requirement of any applicable regulatory authority; provided, further, that the Receiving Party shall provide prior written notice to Disclosing Party of the existence, terms and circumstances surrounding such a request so that the Disclosing Party may seek a protective order or other appropriate remedy, at its sole cost and expense.
(ii) Each Party will establish and maintain industry-standard technical, administrative, data security and privacy and cybersecurity policies, procedures and other safeguards to protect against the destruction, loss, theft, unauthorized access, acquisition, modification or alteration of Confidential Information in its custody, possession or control. Such procedures and safeguards shall, at a minimum, be no less rigorous than those maintained by the Party for its own information of a similar nature.
(iii) In the event that any actual or reasonably suspected unauthorized disclosure, loss, unauthorized access, manipulation, destruction, or corruption of the Disclosing Party’s Confidential Information is caused while such data is in the Receiving Party’s possession or control (a “Data Incident”), the Receiving Party shall promptly, and in any event within five (5) days after discovery, notify the Disclosing Party of the Data Incident in writing and take all reasonable measures to remediate the effects of such Data Incident.
(iv) Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire seven (7) years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law. On the expiration or termination of the Agreement, the Receiving Party shall promptly return to the Disclosing Party all copies, whether in written, electronic, or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed.
4. Fees.
(a) Service Fees. The Service Fees for the Service are set forth in the Vendor Agreement. All Service Fees and other fees indicated in the Vendor Agreement are exclusive of any sales tax, value added tax (VAT), goods and services tax (GST) or other taxes and duties that may be applicable. When obliged under applicable tax legislation to add any of the aforementioned taxes or duties to its fees, the Provider shall do so by computing the applicable tax and including it on the invoice for the Service Fees and other fees.
(b) Taxes. Client shall be responsible, on behalf of itself and its Affiliate(s), for the payment of all taxes and fees, including any sales, use, excise, value-added or comparable taxes, but excluding taxes: (i) for which the Client has provided a valid resale or exemption certificate, or (ii) imposed on Provider’s income or arising from the employment relationship between Provider and its employees.
(c) Invoices and Payments. Provider shall invoice Client in accordance with the billing terms set forth and detailed on the applicable Vendor Agreement. All charges, fees, payments and amounts hereunder will be in United States dollars. All undisputed amounts due hereunder are payable within fifteen (15) calendar days from the date of Client’s receipt of the invoice, unless otherwise agreed to. For the avoidance of doubt, Client’s failure to comply with this Section is a material breach of the Agreement.
5. Term and Termination.
(a) Term of Agreement. The term of this Agreement shall commence on the Effective Date and shall continue until the earlier of (i) all Vendor Agreements hereunder having expired or been terminated, or (ii) termination of this Agreement pursuant to the provisions hereof (“Term”).
(b) Term of Service. The term of the applicable Service will be specified per the Vendor Agreement.
(c) Termination for Breach. Either Party may terminate this Agreement or any active Vendor Agreement in the event that the other Party materially defaults in performing any obligation under this Agreement (including a Vendor Agreement) and such default continues un-remedied for a period of ninety (90) days following receipt of written notice of default from the non-breaching Party. If this Agreement or any active Vendor Agreement is terminated by Provider as a result of Client’s breach, Client will not be entitled to a refund or credit of any prepaid Fees.
(d) Effect of Termination. Upon expiration or termination of this Agreement for any reason, all rights and licenses granted by either Party to the other hereunder will immediately terminate. No expiration or termination will affect Client’s obligation to pay all Services Fees and any other fees that may have become due before such expiration or termination, or entitle Client to any refund.
(e) Survival. Any right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement.
6. Disclaimer of Damages; Limitation of Liability.
DISCLAIMER OF INDIRECT DAMAGES. NEITHER PARTY IS LIABLE FOR ANY INDIRECT, SPECIAL , INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOSSES, OR EXPENSES, INCLUDING, WITHOUT LIMITATION, THE LOSS OF PRODUCTION, LOSS OF PROFITS, LOSS OF OPPORTUNITY, LOSS OF CONTRACTS, LOSS OF DATA, COST OF REPLACEMENT SERVICE OR FINANCIAL GAIN, THE REDUCTION OF REVENUES OR PRODUCTION, THE FAILURE TO PERFORM OBLIGATIONS TO A THIRD PARTY OR OTHER SIMILAR INDIRECT DAMAGES.
THE MAXIMUM LIABILITY FOR DAMAGES OR BREACH OF REPRESENTATIONS AND WARRANTIES OF EITHER PARTY SHALL UNDER ALL CIRCUMSTANCES BE LIMITED TO TWELVE (12) MONTHS’ SERVICE FEES.
7. Representations and Warranties.
(a) Mutual Representations. Each Party represents to the other Party that:
(i) It is duly organized, validly existing and in good standing as a limited liability company or other entity as represented herein under the laws of its jurisdiction of formation and organization;
(ii) It has the full right, power and authority to enter into this Agreement and to perform its obligations hereunder;
(iii) The acceptance of this Agreement by its representative named on a Vendor Agreement has been duly authorized by all necessary organizational action of the Party;
(iv) When executed and delivered by such Party, this Agreement shall constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and
(v) Its collection, access, use, storage, disposal and disclosure of its own Confidential Information does and will comply with all applicable federal, state, local, and foreign privacy and data protection laws, as well as all other applicable regulations and directives and the Vendor Agreement.
(b) Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, ALL SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS.” PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CLIENT AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. Any information provided or made available through the Services and/or Documentation or otherwise provided by Provider to Client is provided “as is” and PROVIDER DOES NOT: (i) WARRANT THE ACCURACY, ADEQUACY OR COMPLETENESS OF THIS INFORMATION; (ii) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY OTHER THAN PROVIDER.
8. Intellectual Property.
(a) Provider.
(i) Client acknowledges that, as between Client and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to all Provider Content, Provider Confidential Information, Provider methods, software, material, and processes, and with respect to any third party Confidential Information, the applicable third party owns all right, title, interest, including all intellectual property rights, in and to such third party Confidential Information. No such rights are transferred on the basis of this Agreement to the Client.
(ii) Client may not delete, amend, or cover any signs of copyright, trademark, tradename, trade dress, or other intellectual property of Provider, nor in any other way change the Service or any Documentation.
(iii) If Client or any of its Authorized Users sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Client hereby assigns to Provider on Client’s behalf, and on behalf of its Authorized Users and/or respective agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
(b) Client Data. Provider acknowledges that, as between Provider and Client, Client owns all right, title, and interest, including all intellectual property rights, in and to the Client Data. Client hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Client Data and perform all acts with respect to the Client Data as may be necessary for Provider to provide the Services to Client, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Client Data incorporated within the Resultant Data.
9. Indemnification.
(a) Provider shall indemnify, defend and hold harmless Client and its officers, directors, agents, and employees from and against any and all fines and penalties, and any and all claims by, or liability to, any third party, for loss, damage or injury to persons or property, employment related claims, employee classification claims, or infringement of a United States patent or copyright (each, a “Claim”) that is based on Provider’s breach or negligence in the performance of its obligations under this Agreement.
(b) Client shall indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any Claim arising out of or resulting from (i) Client’s negligence or willful misconduct; (ii) Client’s use of the Services in a manner not authorized by this Agreement; (iii) Client’s use of the Services in combination with data, software, hardware, equipment or technology not provided by Provider or authorized by Provider in writing; (iv) modifications to the Services not made by Provider; or (v) any breach by Client of this Agreement.
(c) Provider has no obligation under this Section for any infringement Claim to the extent that it arises out of or is based upon (i) use of the Service in combination with other products or services; (ii) any aspect of the Service configured specifically for Client to comply with designs, requirements, or specifications required by or provided by or on Client behalf; (iii) use of the Service by an Authorized User outside the scope of the rights granted in this Agreement; (iv) failure of an Authorized User to use the Service in accordance with instructions provided by Provider; or (v) any modification of the Service not made or authorized in writing by Provider.
(d) In the defense or settlement of any infringement Claim, Provider may, at Provider’s sole option and expense: (i) procure for Client a license to continue using the Service; (ii) replace or modify the allegedly infringing technology to avoid the infringement; or (iii) if the foregoing are not commercially feasible in Provider’s sole judgment, then terminate Client’s license and access to the Service and refund any prepaid, unused Service fees as of the date of termination. This Section states Provider’s sole and exclusive liability, and Client’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by the Service.
10. Arbitration.
(a) Agreement to Arbitrate. Unless you opt-out in accordance with the opt-out procedures set forth in Section 10.j below, you agree that all claims relating to or arising out of these Terms or the breach thereof, whether sounding in contract, tort, or otherwise that have arisen or may arise between you and HELIXintel and/or a Provider Affiliate, whether relating to these Terms (including any alleged breach thereof), the Services, the Site, or otherwise, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Section 10, except you may assert individual claims in small claims court, if your claims qualify. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. This Section 10 is referred to in these Terms as the “Arbitration Agreement”.
(b) Pre-Arbitration Dispute Resolution. Provider is always interested in resolving disputes amicably and efficiently and as such, before you commence arbitration, we suggest that you contact us to explain your complaint, as we may be able to resolve it without the need for arbitration. You may contact us via email at legal@HELIXintel.com or HELIXintel Corporation, Attn: Legal Department, 701 Ellicott St, Buffalo NY 14203.
(c) Arbitration Procedures. If we cannot resolve a claim informally, any claim either of us asserts will be resolved only by binding arbitration and not in courts of general jurisdiction. Arbitration will be conducted by a neutral arbitrator in accordance with the rules of JAMS that are in effect at the time the arbitration is initiated (collectively the “JAMS Rules”), as modified by this Arbitration Agreement, and excluding the JAMS Class Action Procedures. For information on JAMS, please visit its website, https://www.jamsadr.com/. If there is any inconsistency between the JAMS Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would, including, without limitation, the limitation of liability provisions in Section 6. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
(d) To commence an arbitration against Provider, you must write a demand for arbitration that includes a description of the dispute and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at www.jamsadr.com. You should send three copies of the demand, plus the appropriate filing fee, to JAMS at [500 North State College Blvd., Suite 600, Orange, CA 92868], and send one copy to Provider at HELIXintel Corporation, legal@HELIXintel.com or HELIXintel Corporation, Attn: Legal Department, 701 Ellicott St, Buffalo NY 14203. For more information, see the JAMS arbitration rules and forms, https://www.jamsadr.com/rules-download/. You may represent yourself in the arbitration or be represented by an attorney or another representative. Once we receive your arbitration claim, we may assert any counterclaims we may have against you.
(e) The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less you or Provider may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Provider subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by you and/or Provider, unless the arbitrator requires otherwise.
(f) The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all claims relating to or arising out of this Agreement, or the breach thereof, whether sounding in contract, tort, or otherwise and all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, without limitation, any claim that all or any part of these Terms are void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
(g) The arbitrator will decide the substance of all claims in accordance with the laws of the State of New York, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Users, but is bound by rulings in prior arbitrations involving the same User to the extent required by applicable law.
(h) Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the JAMS Rules, unless otherwise provided in this Agreement to Arbitrate. If you demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Provider will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Provider will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Each party will be responsible for all other fees it incurs in connection with the arbitration, including, without limitation, all attorney fees. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Provider for all fees associated with the arbitration paid by Provider on your behalf that you otherwise would be obligated to pay under the JAMS rules.
(i) Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND PROVIDER AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ARBITRATION, ACTION OR PROCEEDING. UNLESS BOTH YOU AND PROVIDER EXPRESSLY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AGAINST THE OTHER PARTY AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS. If any court or arbitrator determines that the class action waiver set forth in this Section 11.5 is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
(j) Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
(k) Opt-Out Procedure. You can choose to reject this Arbitration Agreement by mailing us a written opt-out notice (“Opt-Out Notice”) in accordance with the terms of this Section 11.7, which the Opt-Out Notice must be postmarked no later than 30 days after the date you use our Site or Services for the first time. You must mail the Opt-Out Notice to HELIXintel Corporation, Attn: Legal Department, 3525 Lakeview Rd., Hamburg, NY 14075. The Opt-Out Notice must state that you do not agree to the Arbitration Agreement and must include your name, address, phone number, and the email address(es) used to log in to the Account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Arbitration Agreement. If you opt out of the Arbitration Agreement, Provider will likewise not be bound by these arbitration provisions; provided all other terms of these Terms will continue to apply. Opting out of the Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with us.
(l) Future Changes to this Arbitration Agreement. Notwithstanding any provision in these Terms to the contrary, you and we agree that if we make any change to this Arbitration Agreement (other than a change to any notice address or website link provided herein) in the future, such change shall not be effective until at least 60 days from the date of posting, and shall not apply to any claim that was filed in a legal proceeding against Provider prior to the effective date of the change. Moreover, if we seek to terminate this Arbitration Agreement from these Terms, such termination shall not be effective until 30 days after the version of these Terms not containing the Arbitration Agreement is posted to the Site, and shall not be effective as to any claim that was filed in a legal proceeding against Provider prior to the effective date of removal.
11. General.
(a) Assignment. Except in the case of a Party assigning rights and responsibilities under this Agreement to an Affiliate, neither Party may otherwise assign, transfer or delegate this Agreement or any rights or obligations hereunder without the prior written consent of to any other Party, except that Provider may assign this Agreement in connection with (i) a merger, consolidation, or similar transaction involving (directly or indirectly) a Party, (ii) a sale or other disposition of all substantially all of the assets of a Party, or (iii) any other form of combination or reorganization involving (directly or indirectly) such Party, such consent not to be unreasonably withheld.
(b) Publicity. Neither Party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or the identity of the Parties or otherwise use the other Party’s trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior advance written consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed, where such use is necessary for provision of the Service.
(c) Consent to Electronic Communication. By using the Site or Services, you agree to allow Provider to communicate with you electronically, and you consent to electronic delivery of notices, documents, or products from Provider via the Site, mobile application, online messaging platform, or e-mail. You also agree to check your Account, alerts, and messages, and the e-mail account associated with your Account on a reasonably regular basis to stay apprised of important notices and information about your Account.
(d) Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) must be in writing and addressed to the other Party at its address set forth below. Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section.
Notice to Provider: HELIXintel Legal 701 Ellicott Street
2nd Floor, Suite B2-259 Buffalo, NY 14203
Notice to Client: Will be provided to the address for the Client specified on the Vendor Agreement.
(e) Conflict. If there is any conflict between this Agreement and the Vendor Agreement, the terms of this Agreement shall control except as otherwise explicitly stated in the Vendor Agreement in relation to price, quantity, dates of performance, product and shipping.
(f) Force Majeure. In no event will either Party be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by any Force Majeure Event. A Force Majeure Event means an event caused by any circumstances beyond a Party’s reasonable control, including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes, or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Actions by state actors shall not constitute force majeure.
(g) Waiver and Modifications. Failure, neglect, or delay by a Party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of the Party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the Party’s right to take subsequent action. Exercise or enforcement by either Party of any right or remedy under this Agreement will not preclude the enforcement by the Party of any other right or remedy under this Agreement or that the Party is entitled by law to enforce.
(h) Governing Law. This Agreement shall be deemed to have been made and executed in Delaware regardless of order or place in which the Parties accepted the terms of this Agreement. This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(i) Severability. If any provision of this Agreement is held to be invalid by a court or other authority of competent jurisdiction, the invalidity shall not affect the other provisions or applications of this Agreement which can be given effect without the invalid provisions of applications and to this end the provisions of this Agreement are declared to be severable.
(j) Change in Law. Parties shall execute their respective responsibilities in compliance with all applicable laws and regulations. In the event that changes in laws or regulations materially affect the subject matter or a Party’s responsibilities under this Agreement, the Parties agree to negotiate a modification to this Agreement in good faith to allow compliance with the change. In the event that agreement on a reasonable modification to this Agreement cannot be reached within sixty (60) days of commencement of negotiations, then this Agreement shall be terminated, consistent with Section 7.
(k) Health Information. The Parties do not contemplate or expect that Client Data will include Protected Health Information or any other individually identifiable health information as those terms are defined in 45 CFR § 160.103. In the event that Provider has access to individually identifiable health information of Client, Provider agrees to comply with all applicable state and federal laws and regulations governing the access, use, handling and storage of such information in addition to the obligations of confidentiality provided in section 3 of this Agreement.
(l) Remedies. Client acknowledges and agrees that a breach or threatened breach of this Agreement by Client would cause Provider irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, Provider shall be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
(m) Entire Agreement. This Agreement contains the entire understanding of the Parties and may not be amended without the specific written consent of both Parties. This Agreement supersede all previous communications, representations, understandings, and agreements, either oral or written, between the Parties with respect to said subject matter, including any prior nondisclosure agreement or confidentiality agreement between the Parties or their Affiliates. No usage of trade or other regular practice or method of dealing between the Parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. Neither Party will be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by the other Party in any acceptance, confirmation, invoice, purchase order, receipt, correspondence, or otherwise, unless each Party mutually and expressly agrees to such provision in writing.
This policy is effective as of 25 Jul 2022.