ApricityCare
Terms of Service
Last updated: Feb 3rd, 2021
The ApricityCare software application (“App”) is a
copyrighted work belonging to Apricity Health, LLC, and its affiliates,
subsidiaries, parent company, and other related companies (collectively, “Apricity,”
“us,” “our,” and/or “we”). The App connects you to a
digital platform to help your oncology clinical team (“Clinical Team”)
optimally monitor & manage your cancer treatment, and provides information
regarding oncology topics, and related content (collectively, with all other
services provided through the App and together with the App, the “Services”).
References to “you” and “your” refer to you, a user of our
Services.
THESE TERMS OF SERVICE (“AGREEMENT”) SETS FORTH THE
LEGALLY BINDING TERMS FOR YOUR USE OF THE SERVICES. BY ACCESSING OR USING THE
SERVICES, YOU ARE ACCEPTING THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT
YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT. YOU
MAY NOT ACCESS OR USE THE SERVICES OR ACCEPT THE AGREEMENT IF YOU DO NOT HAVE
THE CAPACITY TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL OF THE
PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SERVICES.
PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN AN
AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL
RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH
LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND
FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS
AGAINST APRICITY ON AN INDIVIDUAL BASIS, NOT AS A CLASS MEMBER IN ANY CLASS OR
REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK
RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN
INDIVIDUAL BASIS.
1.
IMPORTANT DISCLAIMERS.
COMMUNICATIONS WITH YOUR CLINICAL TEAM THROUGH THE APP ARE
NOT IN “REAL-TIME” AND SHOULD NOT BE USED FOR URGENT OR EMERGENCY MEDICAL
SITUATIONS. DO NOT USE THE APP IF YOU ARE HAVING A MEDICAL EMERGENCY.
PLEASE CALL 911 OR GO DIRECTLY TO THE NEAREST EMERGENCY ROOM IF YOU ARE
EXPERIENCING A MEDICAL EMERGENCY. YOU SHOULD CONTACT YOUR CLINICAL TEAM
DIRECTLY IF YOU HAVE ANY QUESTIONS ABOUT AN URGENT MEDICAL CONDITION.
APRICITY DOES NOT OFFER MEDICAL ADVICE AND YOUR CLINICAL TEAM
REMAINS RESPONSIBLE FOR ALL MEDICAL ADVICE AND DECISION-MAKING. ANY INFORMATION
ACCESSED THROUGH THE SERVICES, OR WITHIN ANY OF APRICITY’S SOCIAL MEDIA PAGES
OR CHANNELS IS FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY, IS NOT INTENDED
TO BE A SUBSTITUTE FOR MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT, AND IS NOT
INTENDED TO COVER ALL POSSIBLE USES, DIRECTIONS, PRECAUTIONS, OR ADVERSE EFFECTS.
SUCH INFORMATION INCLUDES, WITHOUT LIMITATION, INFORMATIONAL VIDEOS,
THIRD-PARTY MATERIALS, USER CONTENT, AND APRICITY-GENERATED CONTENT DERIVED
FROM USER CONTENT. THE INFORMATION ON THE SERVICES SHOULD NOT BE USED FOR THE
DIAGNOSIS OR TREATMENT OF ANY MEDICAL CONDITION.
NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN
SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON THE SERVICES OR ON APRICITY’S
SOCIAL MEDIA PAGES AND CHANNELS. APRICITY IS NOT RESPONSIBLE OR LIABLE FOR ANY
ADVICE, COURSE OF TREATMENT, DIAGNOSIS OR ANY OTHER INFORMATION, SERVICES OR
PRODUCTS THAT YOU MAY OBTAIN THROUGH THE SERVICES.
THE FOREGOING DISCLAIMERS SHALL NOT LIMIT THE MORE GENERAL
DISCLAIMERS IN SECTION 8 OR ELSEWHERE IN THIS AGREEMENT.
2.
ELIGIBILITY AND ACCOUNTS.
2.1
Eligibility. You must be 18 years of age or you must
be the legal guardian for someone under age 18 whose data is accessed through
the Services.
2.2
Account Creation. In order to use the Services, you
must register for an account with Apricity (“Apricity Account”) and
provide certain information about yourself as prompted by the registration
form. You represent and warrant that: (a) all required registration information
you submit is truthful and accurate; and (b) you will maintain the accuracy of
such information at all times. You may not create more than one Apricity
Account.
2.3
Account Deletion. You may delete your Apricity
Account at any time by sending an email to privacy@apricityhealth.com/. For
further information on our use of your data, please refer to the ApricityOncology
Privacy Policy. If you would like your
Clinical Team to stop providing your medical information to or through your
Apricity Account, you should also notify your Clinical Team in the manner
discussed in your Clinical Team’s Notice of Privacy Practices.
2.4
Account Responsibilities. When you create an Apricity
Account, you will be provided with a confidential user name and password. DO
NOT SHARE YOUR USER NAME OR PASSWORD WITH ANYONE, including Apricity or
your Clinical Team. You are responsible for maintaining the
confidentiality of your Apricity Account login information and are fully
responsible for all activities that occur under your Apricity Account. You
agree to immediately notify Apricity of any unauthorized use, or suspected
unauthorized use, of your Apricity Account or any other breach of security.
Apricity cannot and will not be liable for any loss or damage arising from your
failure to comply with the above requirements. Your access to the Services and
your account is solely for your own personal use. You shall not authorize or
enable others to use your account, and you are solely responsible for all
activities that occur under your account. You shall not use the user name or
password of any other user at any time, or attempt to impersonate another user,
or any person who is not a user. Ensure that you exit from your account at the
end of each session. To protect your confidential healthcare information, it
is good practice to enable a touch ID, fingerprint ID or passcode on your
smartphone. Your use of the Services and any content accessed through the
Services must comply with all applicable laws, regulations and ordinances.
3.
USER CONTENT AND PROTECTED HEALTH INFORMATION
3.1
“User Content” means any and all information and
content that a user submits to, or uses with, the Services, including without
limitation, content in the user’s profile, contact and demographic information,
questionnaire and survey responses, and other content that you provide through
the Services.
3.2
User Content Responsibilities. You are solely responsible
for your User Content. You assume all risks associated with use of your User
Content, including any reliance on its accuracy, completeness or usefulness by
others. You acknowledge and agree that Apricity is not responsible for any User
Content, including its accuracy, completeness, timeliness, validity, legality,
quality, or any other aspect thereof. Apricity does not assume and will not have
any liability or responsibility to you or any other person or user for your use
or misuse of any User Content.
3.3
Protected Health Information (“PHI”) means the health
information about you that your Clinical Team shares with Apricity in
connection with the Services. This information may include the complete
electronic medical record maintained for you by your Clinical Team, results
from laboratory tests, prescriptions and medication lists, insurance
information, and claims data, all of which is protected under the Health
Insurance Portability and Accountability Act of 1996 (“HIPAA”) and
pursuant to the terms of a business associate agreement between Apricity and
your Clinical Team. When you create an Apricity Account, you agree to allow
your Clinical Team to share your PHI with Apricity. You may choose to
discontinue the sharing of your PHI at any time by contacting your Clinical
Team in the manner discussed in your Clinical Team’s Notice of Privacy
Practices. You understand that you may no longer be able to use the Services
if you discontinue sharing of your PHI.
3.4
Modifications to Your User Content. Modifications to your
User Content or App-based records are not automatically communicated to your
Clinical Team or any third-party sources. If you want your Clinical Team or a
third party to know of changes within your User Content or App-based records,
you must inform your Clinical or third-party of such changes.
4.
RIGHT TO USE SERVICES
4.1
Personal , Non-Commercial Limited License. Subject to
the terms of this Agreement, Apricity grants you a limited, revocable,
non-transferable, non-exclusive license to use the Services for your personal,
noncommercial use, including a license to install and use the App, in
executable object code format only, solely on your own handheld mobile device
and for your personal, noncommercial use. All rights not provided herein are
expressly reserved.
4.2
Ownership. Excluding User Content and any PHI provided to
Apricity by your Clinical Team in connection with the Services, you acknowledge
that all the intellectual property rights in the Services are owned by Apricity
or Apricity’s licensors. The provision of the Services does not transfer to you
or any third party any rights, title, or interest in or to such intellectual
property rights. Apricity and its suppliers reserve all rights not granted in
this Agreement.
4.3
App Platforms. You acknowledge and agree that the
availability of the App is dependent on the third-party app platform from which
you received the App, e.g., the Apple App Store® or the Google Play®
Store (“App Platform”). You acknowledge that this Agreement is between
you and Apricity and not with the App Platform. Apricity, not the App Platform,
is solely responsible for the App, the content thereof, maintenance, support
services, and warranty therefor, and addressing any claims relating thereto
(e.g., product liability, legal compliance, or intellectual property
infringement). Each App Platform may have its own terms and conditions to which
you must agree before downloading the App from it. You agree to comply with,
and your license to use the App is conditioned upon your compliance with, all
applicable agreements, terms, and conditions of use/service, and other policies
of the applicable App Platform. You acknowledge that the App Platform (and its
subsidiaries) is a third-party beneficiary of this Agreement and will have the
right to enforce this Agreement. See Accessing and Downloading the
Application from Apple® in Section 15.6 below for additional terms and
conditions if you access or download the App from the Apple App Store.
5.
COMMUNICATIONS
5.1
Text Messaging. The Services enable communication between
Apricity and you by means of SMS text messages to and from your mobile device,
if you elect to receive SMS messages. You agree that Apricity, its affiliated
companies, and necessary third-party service providers and those acting on its
behalf may send you operational and informational text (SMS) messages about
your use of the Services at the phone number you provided us. Standard message
and data rates will apply. If you change or deactivate the phone number you
provided to Apricity, you must update your account information to help prevent
us from inadvertently communicating with anyone who acquires your old number.
You agree that texts, calls, or prerecorded messages may be generated by
automatic telephone dialing systems.
5.2
Opt-Out. You may opt out of receiving text messages
from Apricity at any time by updating your communication preferences or by
replying STOP to any text message from Apricity. If you opt-out of receiving
all text messages from Apricity, you will not be able to use certain Services
without agreeing to receive operational text messages. You may continue to
receive text messages for a short period while the Apricity processes your
request, and you may also receive text messages confirming the receipt of your
opt-out request.
5.3
Push Notifications. When you install our App on your
mobile device you agree to receive push notifications, which are messages an
app sends you on your mobile device even when the App is not on. You can turn
off notifications by visiting your mobile device’s “settings” page.
5.4
Email. You agree that we may send you emails related
to the Services. You may be notified by e-mail when there is new medical
information or a new communication from your Clinical Team to be viewed on the
App. This means that any person with access to your email will be able to see
this notification. This could include your spouse, dependent, employer or
anyone else that can access your email account. Although no private medical
information will be included in the e-mail, the notification that new information
is available by accessing the Services may be information that you would not
want others to know. If you are concerned about this, you should provide an
email address to which only you have access or you may opt out of receiving
emails from Apricity.
6.
PROVIDER ACCESS AND SERVICES
6.1
Provider Access. As part of the Services, your Clinical
Team, healthcare provider, healthcare practice, or hospital (collectively, “Providers”)
may provide personal information, including PHI, about you from the Providers’
electronic health records to the Service pursuant to a written agreement. The
Services allow you to communicate with such Providers and share additional
personal information with your Provider through the App. You understand that
any decision to use the Services is entirely voluntary, but that use of the
Services necessitate the sharing of such information. You also understand that
if you authorize a Provider to access your personal information in the Services
and communicate with you via the Service, that Provider may permit their staff
and other authorized users within their facility or office to use the Services
to access your personal information and communicate with you. If you wish to
share certain information with your provider only, you should not submit that
information through the Services. Not all of your Providers will use Apricity
products or have access to the information you provide through the Services.
Therefore, you should not assume that all of your Providers will view this information,
and you should still communicate any important health information to your
Providers directly.
You acknowledge and agree that Apricity is not
responsible for any Provider misidentifying itself or any misuse of the data by
such Provider or their authorized personnel. You may terminate this access at
any time by terminating your account as set forth herein and/or by notifying your
Clinical Team to stop providing your medical information to or through your
Apricity Account in the manner discussed in your Clinical Team’s Notice of
Privacy Practices. However, copies of all of your
personal information previously disclosed to such Providers and incorporated
into such Providers’ records, may remain in such records. Apricity cannot, and
has no obligation to, remove such information from the Providers’ records.
6.2
Provider Communications. Apricity may make certain tools
available to facilitate communications between you and your Providers,
including allowing Providers to transmit important updates and reminders, and
allowing you to request appointments or send non-urgent electronic
communications. Your Providers are solely responsible for transmitting and/or
responding to such communications and request.
6.3
Prescriptions. Apricity may enable a tool within the Services
that allows you review and/or track prescriptions from your authorized
Providers. Apricity is not responsible for and shall have no liability for any
inaccuracy in prescriptions, medications, or the way in which you take such
medications.
7.
INDEMNITY
You agree to indemnify and hold
Apricity (and its officers, employees, and agents) harmless from any and all
losses, damages, liabilities, claims, actions, judgments, awards, penalties,
fines, costs and/or expenses (including reasonably attorneys’ fees) arising
from or relating to any claim or demand made by any third party due to or
arising out of (i) your use or misuse of the Services, (ii) the User Content,
(iii) your violation of this Agreement; or (iv) your violation of applicable
laws or regulations. Apricity reserves the right, at your expense, to assume
the exclusive defense and control of any matter for which you are required to
indemnify us and you agree to cooperate with our defense of these claims. You
agree not to settle any matter without the prior written consent of Apricity.
Apricity will use reasonable efforts to notify you of any such claim, action or
proceeding upon becoming aware of it.
8.
DISCLAIMERS
THE SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND
EXPRESSLY DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING
THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WITHOUT
LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT THE SITE OR SERVICES: (A) WILL
MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY,
SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES
OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. NO ADVICE OR INFORMATION,
WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM APRICITY THROUGH THE PORTAL WILL
CREATE ANY WARRANTY, REPRESENTATION, OR GUARANTEE OF ANY KIND.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
9.
LIMITATION ON LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO
EVENT SHALL APRICITY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR
ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE
DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY
TO USE, THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. ACCESS TO, AND USE OF, THE SERVICES ARE AT YOUR OWN DISCRETION AND
RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM
OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED HEREIN, APRICITY’S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED
TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE
ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS
($50) OR (B) AMOUNTS YOU’VE PAID APRICITY IN THE PRIOR 12 MONTHS (IF ANY). THE
EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION
OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION
OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT
VARY FROM JURISDICTION TO JURISDICTION.
10.
PROHIBITED USES.
You agree not to engage in any of
the enumerated activities set forth below. Such unauthorized use is a material
breach of this Agreement, and may also violate applicable laws including without
limitation copyright and trademark laws, the laws of privacy and publicity, and
applicable communications regulations and statutes.
10.1
Download, copy, or re-transmit any or all of the Services
without, or in violation of, a written license or agreement with Apricity;
10.2
Use the Services in any manner that could disable, overburden,
damage or impair the Services or interfere with any other party’s use of the
Services including their ability to engage in real time activities through the
Services;
10.3
Use any robot, spider, other automatic device process or means,
or similar data gathering, data mining, or extraction methods to access the
Services for any purpose including monitoring or copying any of the material on
the Services;
10.4
Use any manual process to monitor or copy any of the material on
the Services or for any other unauthorized purpose without the prior written
consent of Apricity;
10.5
Use any device, software or routine that interferes with the
proper working of the web/Internet;
10.6
Attempt to gain unauthorized access to, interfere with, damage or
disrupt any parts of the web/Internet or the server on which the Services are
hosted;
10.7
Attack the Services via a denial-of-service attack or a
distributed denial-of-service attack;
10.8
Attempt to interfere with the proper working of the Services,
including but not limited to through hacking, ransoming, or other attacks upon
the services provided by and function of the Services;
10.9
Use the Services to fraudulently misrepresent yourself,
impersonate another person, engage in false advertising; to defraud or defame
any person, or to engage or otherwise participate in any Ponzi scheme, pyramid
scheme, chain letter, unsolicited bulk or commercial emails, or to collect any
personal or personally identifiable information from any user of the Services
with that person’s knowledge or consent;
10.10
Distribute the content of the Services for any purpose, including
without limitation compiling an internal database, redistributing or
reproduction of the content by the press or media, or through any commercial
network, cable or satellite system;
10.11
Create derivative works of, reverse engineer, decompile,
disassemble, adapt, translate, transmit, arrange, modify, copy, bundle, sell,
sub-license, export, merge, transfer, adapt, loan, rent, lease, assign, share,
outsource, host, publish, make available to any person or otherwise use, either
directly or indirectly, the content or Services in whole or in part, in any
form or by any means whatsoever, be they physical, electronic or otherwise;
10.12
Post any content or submissions on Services, including any
messages, ads, data, images, text illustrations, articles, photographs, or
audio or video clips that might be considered by a reasonable person to be
obscene or that contain racial, ethnic, religious slurs or derogatory epithets,
or that advocate violence or hate, is threatening, abusive, libelous,
defamatory, obscene, vulgar, pornographic, harassing in nature, profane or
indecent material of any kind including without limitation any transmission
constituting or encouraging conduct that would constitute a criminal offense,
give rise to civil liability or violate any local, state, provincial,
territorial, federal or other law, infringe any person’s privacy or personal
information, identify or make it easy to identify any person’s present or
future location, that contain language that is otherwise deemed offensive by
Apricity, or that contains software viruses, corrupted data, cancel bots,
commercial solicitations, or mass mailings or any form of “spam”;
10.13
Use the Services in any manner that promotes and/or enables
illegal or unlawful activities;
10.14
Permit, allow or do anything that would infringe or otherwise
prejudice the proprietary rights of Apricity or its licensors or allow any
third-party to access the content;
10.15
Use the Services other than for its intended purpose, or in any
manner not expressly permitted in this Agreement;
10.16
Remove any copyright, trademark, or other proprietary rights
notice from the Services or any content;
10.17
Create a database by downloading and saving content from the
Services;
10.18
Transmit, disclose, collect or store personal information or
personal health information about others without express permission to do so;
or
10.19
Attempt to defeat any security measures that we take to protect
the Services.
11.
ACCESS RESTRICTION AND TERMINATION.
Access and use of the Services, is expressly
conditioned on your compliance with all relevant laws, regulations, contract
obligations, and the Agreement. Apricity may restrict, suspend, or terminate
your access to all or any part of the Services at any time and for any reason
in its sole and complete discretion. Apricity reserves the right to exercise
whatever means it deems necessary to prevent unauthorized access to the
Services. If Apricity terminates your account, you will not create another
account without our permission.
This Agreement will remain in full force and effect
until terminated by either party. Any provision in the Agreement that by its nature should survive the
termination of your license to access the Services or any termination of the
Agreement (including, without limitation, provisions governing arbitration,
indemnification, limitations on liability, disclaimers of warranty, and
ownership of intellectual property) will continue to remain in full force and
effect after any termination.
12.
INTELLECTUAL PROPRIETARY RIGHTS
12.1
Apricity Intellectual Property. The Apricity and
ApricityCare names and logos are trademarks of Apricity. All other company
names, logos, and trademarks mentioned herein are the property of their
respective owners. Nothing herein shall be construed as granting, by
implication, estoppel, or otherwise, any license or right to use the Apricity
or ApricityCare name, logos, or trademarks without obtaining the written
permission of Apricity or such other third party owner, as applicable. All
content on the Services, including but not limited to designs, data and
databases, text, graphics, images, photographs, illustrations, audio and video
material, artwork, proprietary information, client-side code (e.g. HTML,
JavaScript, etc.) and server-side code (e.g. active server pages,
VBScript, databases, etc.) and all copyrightable elements of the Services, and
their selection and arrangement (excluding any of User Content) (the “Site
Content”) individually and/or collectively, are the proprietary property of
Apricity and is protected by U.S. copyright law, international treaties and
other intellectual property rights. Except as otherwise stated therein, Site
Content may not be copied, transmitted, displayed, performed, distributed (for
compensation or otherwise), licensed, altered, framed, stored for subsequent
use or otherwise used in whole or in part in any manner without prior written
consent, except to the extent permitted by the Copyright Act of 1976 (17 U.S.C.
§107), as amended, and then, only with notices of Apricity’s proprietary
rights, provided however, that you may download the information and print out
hard copies for your own personal, noncommercial use, so long as you do not
remove any copyright or other notice as may be contained in the information as
downloaded. The Services may contain other proprietary Apricity notices and
copyright information, the terms of which must be observed and followed by you.
12.2
Feedback. If you provide Apricity any feedback or
suggestions regarding the Services (“Feedback”), you hereby assign to
Apricity all rights in the Feedback and agree that Apricity shall have the
right to use such Feedback and related information in any manner it deems
appropriate. Apricity will treat any Feedback you provide to Apricity as
non-confidential and non-proprietary. You agree that you will not submit to
Apricity any information or ideas that you consider to be confidential or
proprietary.
13.
CHOICE OF LAW.
This Agreement
will be controlled by the laws of the State of Texas, giving no effect to any
conflict principles. We expressly exclude the UN Convention on Contracts for
the International Sale of Goods, and the International Sale of Goods Act Ontario
as amended, replaced or re-enacted from time to time.
14.
AGREEMENT TO ARBITRATE AND CLASS ACTION WAIVER.
Any dispute arising out of or
relating to the Services, or any relationship between the parties, or any of
their parents, subsidiaries, affiliates, successors, officers, directors, or
employees, heirs and permissible assigns, without limitation, no matter how
described, pleaded or styled, will be resolved through final, binding
arbitration under the substantive and procedural requirements of the Federal
Arbitration Act. The arbitration will be conducted by a single, neutral
arbitrator chosen by the parties, who shall be a retired judge or a lawyer with
at least ten years of active practice in technology law and knowledgeable about
software as a service. The arbitration shall be conducted under the Commercial
Arbitration Rules of the American Arbitration Association (“AAA”). I
understand the information about the AAA arbitration process and the AAA
Commercial Arbitration Rules can be obtained at www.adr.org.
The arbitration will be conducted by telephone, online and/or be solely based
on written submissions, the specific manner to be chosen by the party
initiating the arbitration. The arbitration will not require any personal
appearance by the parties or witnesses unless otherwise mutually agreed in
writing by the parties. The parties agree that the arbitrator, and not a court,
will have exclusive jurisdiction over the interpretation, validity, and scope
of this arbitration agreement. The costs of the arbitration filing fee,
arbitrator’s compensation, and facilities fees will be split by the parties.
Each party will pay for its own attorneys’ fees and costs. Any dispute or claim
will be brought solely in that party’s individual capacity, and not as a
plaintiff or class member in any purported class action, representative
proceeding, mass action or consolidated action. The fact of and all aspects of
this arbitration and the underlying dispute will remain strictly confidential
by the Parties, their representatives, and the AAA. The Parties agree that any
actual or threatened violation of this provision would result in irreparable
harm and will be subject to being immediately enjoined. If this arbitration
agreement is declared unenforceable and cannot be administered, interpreted, or
modified to be enforceable, the parties agree to waive any right to a jury
trial for any dispute to which this agreement applies and any dispute will be
commenced and maintained exclusively in the state or federal courts in Houston,
Texas and the parties each consent to the personal jurisdiction of the courts.
This provision survives the termination of the Agreement. Notwithstanding
anything herein to the contrary, you retain the right to pursue any claim in a
small claims court and proceed on an individual basis for any such claim that
is within the court’s jurisdiction.
BY ACCEPTING
THE TERMS, YOU ACKNOWLEDGE THAT YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL AND
ANY RIGHTS YOU MAY HAVE TO BRING ANY CLAIMS ON A CLASS, REPRESENTATIVE,
CONSOLIDATED OR MASS ACTION BASIS.
15.
TIME LIMITATION ON CLAIMS
You agree that any claim you may have arising out
of or related to the Services or your relationship with Apricity must be filed
within one year after the claim arose; otherwise, your claim is permanently
barred.
16.
CONSENT TO RECEIVE NOTICES ELECTRONICALLY
You consent
to receive any agreements, notices, disclosures and other communications
(collectively, “Notices”) to which this Agreement refers from us
electronically, including without limitation by e-mail or other electronic
communication technology that may hereafter be developed. You agree that all
Notices that we provide to you electronically satisfy any legal requirements
that those communications be in writing. Also, please note that your consent to
receive notices is separate from any election you make regarding receipt of
marketing communications.
17.
GENERAL
17.1
Website Availability. Apricity will make reasonable
efforts to keep the Services operational. However, certain technical
difficulties, routine site maintenance/upgrades and other events outside the
control of Apricity may, from time to time, result in temporary interruptions
to the Services. In addition, Apricity reserves the right at any time and from
time to time to modify or discontinue (on a temporary or permanent basis)
certain functions of the Services or the entirety of the Services, with or
without notice.
17.2
No Support or Maintenance. You acknowledge and agree
that Apricity will have no obligation to provide you with any support or
maintenance in connection with the Services.
17.3
Changes to Agreement. You agree that Apricity may
modify this Agreement at any time by adding new terms or by deleting or
amending existing terms. Such modifications will be effective as of the date
that the updated Agreement are posted on the Services (“Effective Date”).
Your continued access and use of the Services after the Effective Date
constitutes your acknowledgment of such modifications and your agreement to
abide, and be bound, by the Agreement as modified. If you do not accept such
modification(s), then you must stop using the Services.
17.4
Links to Affiliate Websites. The Services may contain
links to websites controlled or offered by our parent, subsidiaries, related
companies, and affiliates, which may contain terms of service that are
different from this Agreement. You should read the terms of services and
privacy policies on each such website, as your accessing such website
constitutes your agreement to be bound by the terms and conditions and privacy
policies contained in such website.
17.5
Third-Party Links and Content. The Services may
contain links to third-party websites that are not under the control of or
maintained by Apricity including advertiser websites (the “Linked Sites”).
The Linked Sites are not under the control of Apricity and Apricity is not responsible
for the contents of any Linked Site. The Services may also contain third-party
materials, including videos, articles, blogs, and other content (“Third-Party
Content”) as a courtesy to our users. Apricity does not endorse, sponsor,
recommend, or make any representations about this Third-Party Content, Linked
Sites, or any information, materials, or products found thereon. Any dealings
with third parties included within the Services or Linked Sites, including the
delivery of and the payment for goods and services, and any other terms,
conditions, warranties or representations associated with such dealings, are
solely between you and the third party. Apricity shall not be responsible or
liable for any part of any such dealings. IN PARTICULAR, WE DO NOT ACCEPT ANY
LIABILITY ARISING OUT OF ANY ALLEGATION THAT ANY THIRD-PARTY CONTENT INFRINGES
THE INTELLECTUAL PROPERTY RIGHTS OF ANY PERSON OR ANY LIABILITY ARISING OUT OF
ANY INFORMATION OR OPINION CONTAINED ON SUCH THIRD PARTY WEB SITE OR CONTENT. If
you click on links to Linked Sites from the Services, you should consult the
privacy policy statements of each site you visit.
17.6
Accessing and Downloading the Application from Apple. The
following additional terms apply to any App accessed through or downloaded from
the iTunes® or the App Store® (“App Store Sourced Mobile App”):
(a)
You acknowledge and agree that (i) this Agreement is concluded
between you and Apricity only, and not Apple, and (ii) that Apricity, not
Apple, is solely responsible for the App Store Sourced Mobile App and content
thereof. The license granted to you in the Agreement to use the App Store
Sourced Mobile App and Services is a non-transferable right to use the App
Store Sourced Mobile App on any Apple Device that you own or control, and only
as permitted by the Usage Rules set forth in the App Store Terms of Service.
(b)
You acknowledge that Apple has no obligation whatsoever to
furnish any maintenance and support services with respect to the App Store
Sourced Mobile App.
(c)
In the event of any failure of the App Store Sourced Mobile App
to conform to any applicable warranty, you may notify Apple, and Apple will
refund the purchase price for the App Store Sourced Mobile App to you. To
the maximum extent permitted by applicable law, Apple will have no other
warranty obligation whatsoever with respect to the App Store Sourced Mobile
App. As between Apricity and Apple, any other claims, losses, liabilities,
damages, costs or expenses attributable to any failure to conform to any
warranty will be the sole responsibility of Apricity.
(d)
You and Apricity acknowledge that, as between Apricity and Apple,
Apple is not responsible for addressing any claims you have or any claims of
any third-party relating to the App Store Sourced Mobile App or your possession
and use of the App Store Sourced Mobile App, including, but not limited to: (i)
product liability claims; (ii) any claim that the App Store Sourced Mobile App
fails to conform to any applicable legal or regulatory requirement; and (iii)
claims arising under consumer protection or similar legislation.
(e)
You and Apricity acknowledge that, in the event of any
third-party claim that the App Store Sourced Mobile App or your possession and
use of that App Store Sourced Mobile App infringes that third-party’s intellectual
property rights, as between Apricity and Apple, Apricity, not Apple, will be
solely responsible for the investigation, defense, settlement and discharge of
any such intellectual property infringement claim to the extent required by
this Agreement.
(f)
You and Apricity acknowledge and agree that Apple, and Apple’s
subsidiaries, are third-party beneficiaries of the Agreement as related to your
license of the App Store Sourced Mobile App, and that, upon your acceptance of
the terms and conditions of the Agreement, Apple will have the right (and will
be deemed to have accepted the right) to enforce the Agreement as related to
your license of the App Store Sourced Mobile App against you as a third-party
beneficiary thereof.
(g)
You represent and warrant that (i) you are not located in a
country that is subject to a U.S. Government embargo, or that has been
designated by the U.S. Government as a “terrorist supporting” country; and (ii)
you are not listed on any U.S. Government list of prohibited or restricted parties.
(h)
Without limiting any other terms of this Agreement, you must
comply with all applicable third-party terms of agreement when using the App
Store Sourced Mobile App.
17.7
Miscellaneous. This Agreement constitutes the entire
agreement between you and us regarding the use of the Services. Our failure to
exercise or enforce any right or provision of this Agreement shall not operate
as a waiver of such right or provision, nor shall any single or partial
exercise by Apricity of any right or power hereunder preclude further exercise
of that or any other right hereunder. The section titles in this Agreement are
for convenience only and have no legal or contractual effect. The word
“including” means “including without limitation.” If any provision of this
Agreement is, for any reason, held to be invalid or unenforceable, the other
provisions of this Agreement will be unimpaired and the invalid or
unenforceable provision will be deemed modified so that it is valid and
enforceable to the maximum extent permitted by law. Nothing contained herein
shall be construed to establish an employment, partnership, or joint venture
relationship between you and Apricity. This Agreement, and your rights and
obligations herein, may not be assigned, subcontracted, delegated, or otherwise
transferred by you without Apricity’s prior written consent, and any attempted
assignment, subcontract, delegation, or transfer in violation of the foregoing
will be null and void. This Agreement shall be binding upon and inure to the
benefit of all parties and their respective heirs, legal representatives,
executors, administrators, successors, and permitted assigns.