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 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, reproduce, adapt, modify and distribute your Content and to prepare derivative works of, or 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.
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.
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:
certified mail: Attn: HELIXintel Designated Copyright Agent, 3525 Lakeview Rd., Hamburg, NY 14075
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.
This policy is effective as of 27 Jul 2020.