Terms of Service.
Tetricus Client Terms of Service
Last updated: January 17, 2024
Tetricus Inc. (“Tetricus”, “us”, “our”, and “we”) provides a behavioral health platform and related services (“Platform”). Our Platform provides customers (“you”, “your” or “Client”) with behavioral health services, such as the opportunity to access psychoeducation materials, tests and surveys, engage and work with behavioral health trainers (each, a “Trainer”) and other related services. These Terms of Service, and together with any applicable Supplemental Terms (as defined in Section 3.3) (collectively, “Terms”), governs your access to and use of the Platform, any website operated by or on behalf of Tetricus with a link to these Terms (collectively, the “Website”), any mobile application offered by Tetricus (each, an “Application”), and any content, information, services, features, or resources available or enabled on the Platform, Website, or Application (collectively, the “Services”). Certain features of the Services and your relationship with Tetricus may be subject to additional guidelines, terms, or rules, which will be posted on the Services in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into these Terms.
BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, OR ACCESSING OR USING THE SERVICES, YOU REPRESENT AND WARRANT THAT (1) YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS AND (2) YOU ARE AT LEAST 18 YEARS OLD.
USE OF THE SERVICES IS NOT FOR EMERGENCIES. IF YOU THINK YOU HAVE A MEDICAL OR MENTAL HEALTH EMERGENCY, CALL 911 OR GO TO THE NEAREST OPEN CLINIC OR EMERGENCY ROOM. IF YOU FEEL THAT YOU ARE A DANGER TO YOURSELF OR TO OTHERS, YOU MUST DISCONTINUE USE OF THE SERVICES IMMEDIATELY, CALL 911 OR NOTIFY APPROPRIATE POLICE OR EMERGENCY MEDICAL PERSONNEL. IF YOU ARE SUICIDAL OR ARE EXPERIENCING SUICIDAL THOUGHTS, IMMEDIATELY CALL THE NATIONAL SUICIDE PREVENTION LIFELINE AT 988.
SECTION 13 (ARBITRATION AGREEMENT) CONTAINS PROVISIONS THAT GOVERN HOW TO RESOLVE DISPUTES BETWEEN YOU AND TETRICUS. AMONG OTHER THINGS, SECTION 13 (ARBITRATION AGREEMENT) INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 13 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 13 (ARBITRATION AGREEMENT) CAREFULLY.
UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT (AS DEFINED IN SECTION 13) WITHIN THIRTY (30) DAYS IN ACCORDANCE WITH SECTION 13.9 (30-DAY RIGHT TO OPT OUT): (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SERVICE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
The Agreement IS subject to change by TETRICUS in its sole discretion at any time AS SET FORTH IN SECTION 14.7 (Agreement updates).
1. NO MEDICAL ADVICE. The Services are not (and without limiting the foregoing, the Trainers do not provide) medical advice and do not constitute an opinion, diagnosis, or treatment of any particular condition. The Services have not been evaluated, cleared, or approved by the FDA. NO LICENSED MEDICAL PROFESSIONAL-PATIENT RELATIONSHIP IS CREATED BY USING INFORMATION AND/OR SERVICES PROVIDED BY OR THROUGH THE USE OF THE SERVICES OR THROUGH ANY OTHER COMMUNICATIONS FROM TETRICUS OR ITS TRAINERS. Do not disregard, avoid, or delay obtaining medical advice from a qualified health care professional because of something you may have read on, or information you may have otherwise received via, the Services. The Services provide general guidance for educational, informative, training, support, self-help, and/or engagement purposes. No information provided through the Services replaces or is part of any professional medical consultation, advice, or treatment, which should be provided by a physician or other qualified healthcare provider with any questions regarding your own personal health or medical conditions. If you have or suspect that you have a medical problem or condition, contact a qualified healthcare professional immediately. You are solely responsible for seeking the medical advice of a qualified healthcare professional for questions regarding your medical condition, diagnosis, or treatment. DO NOT USE THE SERVICES FOR EMERGENCY MEDICAL NEEDS. IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, DISCONTINUE USE OF THE SERVICES AND CONTACT THE APPROPRIATE EMERGENCY PROVIDER. IF YOU ARE SUICIDAL OR ARE EXPERIENCING SUICIDAL THOUGHTS, IMMEDIATELY CALL THE NATIONAL SUICIDE PREVENTION LIFELINE AT 988.
2. ACCOUNT.
2.1 Account Creation. To access and use certain features of the Services, you may be required to register for an account on the Services (“Account”) and provide certain information about yourself as prompted by the account registration form. You represent and warrant that: (i) all required information you submit in connection therewith is truthful and accurate; and (ii) you will maintain the accuracy of such information. You acknowledge that we may suspend or terminate your Account at any time.
2.2 Account Responsibilities. You are responsible for all activities that occur under your Account. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You will immediately notify us of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Tetricus cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
2.3 Account Ownership. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Tetricus.
2.4 Necessary Equipment. You must provide all equipment and software necessary to connect to the Services. You are solely responsible for any fees, including internet connection or mobile fees, that you incur when accessing the Services.
3. ACCESS TO AND USE OF THE ServiceS. The Services shall include any required, usual, appropriate or acceptable methods to perform activities related to the Services, including without limitation (a) conducting analytics and other product improvement activities, (b) carrying out the Services or the business of which the Services are a part, (c) carrying out any benefits, rights and obligations related to the Services, (d) maintaining records relating to the Services, and (e) complying with any legal or self-regulatory obligations related to the Services.
3.1 Use of the Service. Subject to these Terms, Tetricus grants you a non-transferable, non-exclusive, revocable, limited right and license to use and access the Services solely for your own personal, non-commercial use. Tetricus reserves the right, at any time, to modify, suspend, or terminate your rights to use the Services (in whole or in part), including for any use of the Services in violation of these Terms. You acknowledge and agree that Tetricus will have no obligation to provide you with any support or maintenance in connection with the Services.
3.2 Application License. Subject to Section 8, for any Application made available as part of the Services, Tetricus grants you, subject to your compliance with these Terms, a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal use.
3.3 Supplemental Terms. Your use of certain features and functionality of the Services may be subject to additional terms (“Supplemental Terms”). Such Supplemental Terms will either be set forth in these Terms or will be presented to you for your acceptance when you sign up to use the supplemental Service. If these Terms are inconsistent with the Supplemental Terms, then the Supplemental Terms control with respect to such Service.
3.4 Updates. You understand that the Services are evolving. As a result, Tetricus may require you to install updates to the Applications that you have installed on the devices through which you access or use the Services (“Device”). You acknowledge and agree that Tetricus may update the Services with or without notifying you. You may need to update third-party software from time to time in order to continue to use the Services. Any future release, update or other addition to the Services shall be subject to this Agreement.
3.5 Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services, whether in whole or in part, or any content displayed on the Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services; (c) you shall not access the Services in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Services shall be subject to these Terms. All copyright and other proprietary notices on the Services (or on any content displayed on the Services) must be retained on all copies thereof.
3.6 Ownership; Trademarks. Excluding any Client Data (defined in Section 4.1 below) that you may provide, you acknowledge that all rights, title and interest in the Services and its content (including the intellectual property rights, such as copyrights, patents, trademarks, and trade secrets) are owned by Tetricus or our licensors or suppliers. Neither these Terms (nor your access to the Services) transfers to you or any third party any rights, title or interest in or to such rights, except for the limited access rights expressly set forth in Section 3.1, Tetricus and our licensors or suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms. “Tetricus” and all graphics, trade names, logos and service marks (“Marks”) used on or in connection with the Services are the trademarks of Tetricus and our suppliers and may not be used without permission in connection with your, or any third-party’s, products or services. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
4. Client data.
4.1 General. “Client Data” means any and all data, information, materials, documents, forms, surveys, tasks, and other content that you provide to, or use with, the Services, including without limitation recordings of Training Sessions (as defined in Section 4.3), medical information provided in such forms and surveys about you (including medication, diagnosis, and treatment details) and your Providers (as defined in Section 4.2), and passive sensing data from your Device and other wearable devices. You are solely responsible for Client Data. You may have the option to request your significant others to provide their feedback on your progress through the Services (“SO Feedback Data”). All SO Feedback Data shall be considered Client Data, and you represent and warrant that you have all rights and consents necessary to collect, share and license such SO Feedback Data consistent with these Terms. You assume all risks associated with use of Client Data, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of Client Data that personally identifies you or any third party. Because you alone are responsible for your Client Data, you may expose yourself to liability if, for example, Client Data violates these Terms. Tetricus is not obligated to backup any Client Data, and your Client Data may be deleted at any time without prior notice. You represent and warrant that you shall not use the Services to collect, upload, transmit, display, or distribute any Client Data (i) reports false emergencies relating to yourself, others, or vulnerable populations including children, elders, or people with disabilities; (ii) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (iii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iv) that is harmful to minors in any way; or (v) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party. You further represent and warrant that you shall not collect, upload, transmit, display, or distribute any Client Data that evidences mental health services needs that exceed the scope of the services provided in the Services. If your needs are beyond the scope of the Services, you are advised to seek alternative services which can be found through the services of a mental health professional, medical professional, or support organization. You acknowledge and agree that Client Data is not subject to patient confidentiality, unless and to the extent such Client Data is governed by a business associate agreement to which Tetricus is a party.
4.2 Sharing Client Data with Healthcare Providers. You may share Client Data with your healthcare providers (each, a “Provider”) via the Services. You have sole discretion in determining the subset of Client Data you share with each Provider via the Services, and you may change your preferences at any time. Further, such access is not intended to be considered an electronic medical record for Providers. You acknowledge and agree that you, and not Tetricus, are responsible for all Client Data that you choose to share with your Providers via the Services.
4.3 Training Sessions. Depending on your subscription plan, you may have the opportunity to engage and work with Trainers via video call sessions (“Training Sessions”). During the Training Sessions, Trainers will provide you with access to psycho-education materials, assist with goal setting and progress tracking, and work with you to assess your resources and overcome obstacles. By scheduling or participating in Training Sessions, you (i) acknowledge and agree that Tetricus may record, store, archive, listen to, or otherwise monitor any Training Sessions, and (ii) consent to such recording and use of the Training Sessions by the Trainers or by Tetricus in connection with providing Services to you, and by Tetricus within the scope of the Client Data license granted in Section 4.4.
4.4 License to Client Data You acknowledge that performance of the Services relies on insights derived from Client Data. Accordingly, subject to any applicable Account settings that you select, you grant Tetricus a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable and transferable right (including any moral rights) and license to use, host, perform, display, reproduce, distribute, modify, adapt, create derivative works from, and otherwise exploit your Client Data (in whole or in part), including by combining your Client Data with data from third-party sources, utilizing machine learning and artificial intelligence applications, for the purposes of providing the Service and performing our obligations and exercising our rights under these Terms; and operating, analyzing, developing, improving, and promoting the Services. You represent and warrant that the holder of any worldwide intellectual property right, including moral rights, in your Client Data, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. Notwithstanding anything to the contrary in these Terms, Tetricus may aggregate and/or de-identify the Client Data and other information provided by you as well as including information and data on how the Services are used by you and other clients. Tetricus reserves the right to disclose to and share such Client Data and other information and data with third parties in an anonymous and aggregate form at its discretion and to use such information and data to provide, improve or evolve the Services and for any other legitimate business purposes.
4.5 User Conduct. You represent and warrant that you shall not: (i) upload, transmit, or distribute to or through the Services any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) interfere with, disrupt, or create an undue burden on servers or networks connected to the Services, or violate the regulations, policies or procedures of such networks; or (iii) attempt to gain unauthorized access to the Services (or to other computer systems or networks connected to or used together with the Services), whether through password mining or any other means; or (iv) use software or automated agents or scripts to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Services (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the publicly available Tetricus website for the sole purpose of, and solely to the extent necessary for, creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
4.6 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Tetricus (“Feedback”) is at your own risk and that Tetricus has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Tetricus a fully paid, royalty-free, perpetual, irrevocable, worldwide, transferable, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Tetricus’s business.
5. Ownership. Tetricus will retain exclusive ownership of all rights, title and interest in the Platform (including, without limitation, any modifications, updates and developments provided hereunder), as well as any information supplied by Tetricus in the provision of the Service, and any visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and any other elements of the Service, subject to the licenses granted herein.
6. Fees. In connection with Client’s use of the Services, Client will pay to Tetricus the applicable fees, charges and billing terms in effect at the time a fee or charge is due and payable, available at www.personily.com/pricing.Tetricus reserves the right at any time to change its prices and billing methods, upon notice to you by a posting on the Services, an e-mail sent to you, or any other method for notice permitted hereunder. All payments required by these Terms exclude all sales, value-added, use, or other taxes, all of which Client will pay in full, except for taxes based on Tetricus’s net income.
6.1 Payment. You must provide Tetricus with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account (each, a “Payment Provider”) as a condition to using the Services. Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities. By providing Tetricus with your credit card number, or PayPal account, and associated payment information, you agree that Tetricus is authorized to immediately invoice you for all fees and charges as they become due and payable and that no additional notice or consent is required. You agree to immediately notify Tetricus of any change in your billing address or the credit card or PayPal account used for payment hereunder.
6.2 Subscription Automatic Renewal. You will be responsible for payment of the applicable subscription fee for use of the applicable Services (the “Subscription Fee”). Your subscription will continue indefinitely until terminated in accordance with this Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically renew on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from Tetricus that your subscription will be automatically renewed, you will have thirty (30) days from the date of Tetricus’ notice), by logging into your account and going to the “Manage Account” page of your account “Profile” page. If you do not wish your account to renew automatically, or if you want to change or terminate your subscription, please contact Tetricus at support@tetricuslabs.com or log in and go to the “Manage Account” page on your “Account Settings” page. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the Subscription Fee paid for the then-current subscription period. By subscribing, you authorize Tetricus to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Tetricus does not receive payment from your Payment Provider, (i) you agree to pay all amounts due on your Account upon demand, and/or (ii) you agree that Tetricus may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
7. Third Party Payment Provider. Tetricus uses a third party service provider, such as Braintree, and its affiliates as the third party service provider for payment services (e.g., card acceptance, merchant settlement, and related services) (a “Payment Processor”). You agree to be bound by Braintree’s terms, such as Braintree’s Privacy Policy (currently accessible at https://www.braintreepayments.com/legal/braintree-privacy-policy) and its Terms of Service (currently accessible at https://www.braintreepayments.com/legal/payment-services-agreement) and hereby consent and authorize Tetricus and Braintree to share any information and payment instructions you provide with one or more Payment Processor(s) to the minimum extent required to complete your transactions.
8. THIRD PARTY SERVICES.
8.1 Third-Party Websites, Applications and Ads. The Services may integrate third-party tools and services, and contain links to third-party websites (“Third-Party Websites”), applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”) (collectively, the “Third-Party Services”). When you click on a link to a Third-Party Service, we will not warn you that you have left the Services and you become subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Services are not under the control of Tetricus. Tetricus is not responsible for any Third-Party Services. Tetricus provides these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or any product or service provided in connection therewith. You use all links in Third-Party Services at your own risk. When you leave our Services, these Terms and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
8.2 Sharing Your Content and Information Through Third-Party Services. Tetricus may provide tools through the Services that enable you to export information, including Client Data, to Third-Party Services, including through our implementation of third-party buttons (such as “like” or “share” buttons). Tetricus is not responsible for any Third-Party Service’s use of your exported information.
8.3 Application Access via App Store and Google Play. With respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you shall only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple Media Terms of Service, except that such App Store Sourced Application may be accessed, acquired, and used by other accounts associated with the purchaser via Apple’s Family Sharing function, volume purchasing, or Legacy Contacts function. Notwithstanding the first sentence in this section, with respect to any Application accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the Application on a shared basis within your designated family group.
8.4 Accessing and Downloading the Application from the Apple App Store. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) this Agreement is concluded between you and Tetricus only, and not Apple, and (ii) Tetricus, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with 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 Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Tetricus 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 Tetricus.
(d) You and Tetricus acknowledge that, as between Tetricus and Apple, Apple is not responsible for addressing any claims you have or of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and Tetricus acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Tetricus and Apple, Tetricus, 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 Tetricus acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
8.5 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 Application.
9. Term and Termination
9.1 Term. Subject to this Section, these Terms commence on the date you accept them (as described in the preamble above) and will remain in full force and effect while you use the Services, unless terminated earlier in accordance with these Terms. We may suspend or terminate your rights to use the Services or your Account at any time for any reason at our sole discretion, including for any use of the Services in violation of these Terms. Upon termination of your rights under these Terms, your right to access and use the Services will terminate immediately. Tetricus will not have any liability whatsoever to you for any termination of your rights under these Terms. Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 1, 4, 5, 6, 13.9, and 10-14.
10. Indemnities. You will indemnify, defend and hold Tetricus and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Tetricus Indemnitees”) harmless from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of this Agreement or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) your Client Data. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
11. Disclaimer.
11.1 As Is. EXCEPT AS EXPRESSLY SET FORTH ABOVE, TETRICUS MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AND TETRICUS EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. TETRICUS DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICES, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
11.2 No Medical or Advice. YOU HEREBY ACKNOWLEDGE AND AGREE THAT (I) THE SERVICES ARE NOT, AND IN NO WAY SHALL REPLACE, MEDICAL CONSULTATION, EXAMINATION, DIAGNOSTICS OR TREATMENT; (II) YOU MUST SEEK MEDICAL ASSESSMENT, ATTENTION, ADVICE, AND TREATMENT INDEPENDENTLY OF THE SERVICES, AND SUCH ASSESSMENT, ATTENTION, ADVICE, AND TREATMENT SHOULD NOT BE IGNORED OR DELAYED DUE TO THE PROVISION OF THE SERVICES BY TETRICUS OR OUR TRAINERS; (III) YOU SHOULD NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE BASED ON ANY INFORMATION OBTAINED VIA YOUR USE OF THE SERVICES, (IV) YOU SHOULD ALWAYS CONSULT WITH YOUR HEALTHCARE PROFESSIONAL IF YOU HAVE QUESTIONS OR CONCERNS ABOUT THEIR HEALTH OR CONDITION; (V) THE SERVICES DO NOT PROVIDE EMERGENCY MEDICAL SERVICES; AND (VI) THE PROFESSIONAL DUTY TO THE PATIENT IN THE PROVISION OF HEALTH CARE SERVICES LIES SOLELY WITH THE HEALTHCARE PROFESSIONAL PROVIDING SUCH PATIENT CARE SERVICES AND NOT WITH TETRICUS.
12. Limitation of Liability. TETRICUS WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, COST OF COVER, LOSS OF DATA, INTERRUPTION OF BUSINESS OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF CLIENT IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. TETRICUS’S TOTAL LIABILITY UNDER OR ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE GREATER OF (A) AMOUNTS PAID TO TETRICUS BY CLIENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRIOR TO THE INCIDENT GIVING RISE TO SUCH LIABILITY, OR (B) ONE HUNDRED ($100) DOLLARS. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE OR IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TETRICUS AND YOU.
13. ARBITRATION AGREEMENT. Please read this section (the “Arbitration Agreement”) carefully. It is part of your contract with Tetricus and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
13.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Tetricus agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Services or this Agreement and prior versions of this Agreement, including claims and disputes that arose between you and us before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (i) you and Tetricus may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) you or Tetricus may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement.
13.2 Informal Dispute Resolution. There might be instances when a Dispute arises between you and Tetricus. If that occurs, Tetricus is committed to working with you to reach a reasonable resolution. You and Tetricus agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome (“Informal Dispute Resolution”). You and Tetricus therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Tetricus that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to support@tetricuslabs.com or regular mail to our offices located at 228 Park Ave S, PMB 92137, New York, NY 10003-1502. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
13.3 Waiver of Jury Trial. YOU AND TETRICUS HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Tetricus are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 3.2 (Applicability of Arbitration Agreement). There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
13.4 Waiver of Class and Other Non-Individualized Relief. YOU AND Tetricus AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 4.3 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 4.3 (Batch Arbitration). Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Tetricus agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of Delaware. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent you or Tetricus from participating in a class-wide settlement of claims.
13.5 Rules and Forum. This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Tetricus agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and Tetricus otherwise agree, or the Batch Arbitration process discussed in Section 4.3 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely set forth in the applicable AAA Rules.
You and Tetricus agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and shall be subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
13.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Delaware and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 4.3 (Batch Arbitration) is triggered, the AAA will appoint the arbitrator for each batch.
13.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Section 13.1 (Waiver of Class and Other Non-Individualized Relief), including any claim that all or part of Section 13.1 (Waiver of Class and Other Non-Individualized Relief) is unenforceable, illegal, void or voidable, or that such Section 13.1 (Waiver of Class and Other Non-Individualized Relief) has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 4.3 (Batch Arbitration), all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 4.3 (Batch Arbitration). The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
13.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Tetricus need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
13.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Tetricus agree that in the event that there are one-hundred (100) or more individual Requests of a substantially similar nature filed against Tetricus by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Tetricus.
You and Tetricus agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
13.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: 228 Park Ave S, PMB 92137, New York, NY 10003-1502 , within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address associated with your account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
13.11 Invalidity, Expiration. Except as provided in Section 13.1 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Tetricus as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
13.12 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Tetricus makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Tetricus at [228 Park Ave S, PMB 92137, New York, NY 10003-1502, your continued use of the Service, including the acceptance of products and services offered on the Service following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Services or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Tetricus will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
14. Miscellaneous.
14.1 Electronic Communications. The communications between you and Tetricus may take place via electronic means, whether you visit the Service or send Tetricus emails, or whether Tetricus posts notices on the Service or communicates with you via email. For contractual purposes, you (i) consent to receive communications from Tetricus in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Tetricus electronically provides to you satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
14.2 Assignment. Neither party may assign this Agreement without the prior written consent of the other party, except that Tetricus may freely assign this Agreement as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its business or assets without the prior consent of Client. Any attempted assignment or delegation in violation of the foregoing will be void. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns. Tetricus may, without your consent, subcontract to any party the performance of all or any of Tetricus’s obligations under this Agreement provided that Tetricus remains primarily liable for the performance of those obligations.
14.3 Independent Contractors. Tetricus and Client are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Tetricus and Client. Neither Tetricus nor Client will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.
14.4 Force Majeure. Tetricus shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, pandemics, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
14.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Service, please contact us at: support@tetricuslabs.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
14.6 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Service of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
14.7 Agreement Updates. When changes are made, Tetricus will make a new copy of these Terms and/or Supplemental Terms, as applicable, available on the Service, and we will also update the “Last Updated” date at the top of these Terms. Unless otherwise stated in such update, any changes to these Terms will be effective immediately. Tetricus may require you to provide consent to the updated Agreement in a specified manner before further use of the Service is permitted. IF YOU DO NOT AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU SHALL STOP USING THE SERVICE.
14.8 Privacy Policy. Please read the Tetricus Privacy Policy, found on our website at www.personily.com/privacy-policy carefully for information relating to our collection, use, storage and disclosure of your personal information as a representative of the Client.
14.9 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Tetricus agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the State or Federal courts located in the State of Delaware, USA and each party waives any objection to such forum.
14.10 Governing Law. ThIS AGREEMENT and any action related thereto will be governed and interpreted by and under the laws of the State of DELAWARE, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the AGREEMENT.
14.11 Notice. Where Tetricus requires that you provide an email address, you are responsible for providing Tetricus with a valid and current email address. In the event that the email address you provide to Tetricus is not valid, or for any reason is not capable of delivering to you any notices required by this Agreement, Tetricus’s dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to Tetricus at the following address: support@tetricuslabs.com. Such notice shall be deemed given when received by Tetricus by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
14.12 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
14.13 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion must be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions must remain in full force and effect.
14.14 Export Control. You also will not use the Service for any purpose prohibited by U.S. law. You acknowledge and agree that products, services or technology provided by Tetricus are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer TETRICUS products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
14.15 Amendments to Comply with Legal Developments. The parties agree to take such action to amend this Agreement from time to time as is necessary for compliance with the requirements of HIPAA, the HITECH Act, and other applicable laws and regulations. Notwithstanding the foregoing, if the parties have not amended this Agreement to address a law or final regulation that becomes effective after the date that the parties enter into this Agreement and that is applicable to this Agreement, then upon the effective date of such law or regulation (or any portion thereof) this Agreement shall be amended automatically and shall incorporate such new or revised provisions as are necessary for this Agreement to be consistent with such law or regulations, and for both parties to be and remain in compliance with all applicable laws and regulations. Any reference in this Agreement to a section of HIPAA, the HITECH Act, or any other regulations implementing HIPAA or the HITECH Act, shall mean such regulation or statute as in effect at the time the parties entered into this Agreement or, if and to the extent applicable, as subsequently updated, amended or revised.
14.16 Entire Agreement These Terms, including the Supplemental Terms, and including all documents and terms incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter.