Effective Date: February 12, 2019
Please read this Terms of Service Agreement (the "Terms of Service") carefully. These Terms of Service govern your use of the website located at: https://www.blackfynn.com/ (the "Website"), and cloud-based software platform and tools that are designed to enable users to upload, visualize, integrate, share, search and analyze scientific and clinical data (the "Services"), offered by Blackfynn, Inc. ("Blackfynn" or "we").
BY CLICKING ON THE "I ACCEPT" BUTTON, COMPLETING THE REGISTRATION PROCESS, BROWSING THE WEBSITE AND/OR USING THE SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF SERVICE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH BLACKFYNN, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF SERVICE PERSONALLY OR AS AN EMPLOYEE, RESEARCHER, OR OTHER AUTHORIZED USER FOR THE COMPANY, ORGANIZATION, OR ACADEMIC INSTITUTION YOU NAME UPON REGISTRATION ("SUBSCRIBER"), OR ON BEHALF OF THE SUBSCRIBER THAT IS NAMED AS THE USER, AND TO BIND THAT SUBSCRIBER TO THE TERMS OF SERVICE. THE TERM "YOU" REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE THE WEBSITE OR SERVICES.
IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE "INITIAL TERM"), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIOD OF THE SAME DURATION AS THE INITIAL TERM AT BLACKFYNN’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU OPT OUT OF AUTO-RENEWAL IN ACCORDANCE WITH SECTION 3.2.
PLEASE BE AWARE THAT SECTION 14 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE 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 (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
Your use of, and participation in certain Services may be subject to additional terms ("Supplemental Terms") and such Supplemental Terms will either be listed in these Terms or will be presented to you for your acceptance when you sign up to use the supplement Service. If these Terms of Service and inconsistent with the Supplemental Terms, the Supplemental Terms will control with respect to such Service. These Terms of Service and any applicable Supplemental Terms are referred to herein as the "Terms".
PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY BLACKFYNN IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Blackfynn will make a new copy of the Terms of Service available at the Website. We will also update the "Last Updated" date at the top of the Terms of Service. If we make any material changes, and you have registered with us to create an Account (as defined in Section 2.1 below), we may also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms. Blackfynn may require you to provide consent to the updated Terms 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 Services. Otherwise, your continued use of the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
1. Use of the Services. The Website and the Services provided by Blackfynn via the Website (collectively, the "Blackfynn Properties") are protected by copyright laws throughout the world. Unless otherwise specified by Blackfynn in a separate license, your right to use any Blackfynn Properties is subject to the Terms.
1.1 Access to Services. Subject to the terms and conditions of these Terms, Blackfynn hereby grants to you a non-sublicensable, non-transferable, non-exclusive subscription to access and use the Service which you or the applicable Subscriber ordered (and Blackfynn accepted) via a purchase order (each, an "Order") or registered for (in the case of certain access tiers that do not require an Order), solely for your internal business or personal (non-commercial) use purposes, subject to any restrictions set forth on such Order or otherwise presented to you upon registration for the Services. You also have the ability to engage Blackfynn to provide certain consulting services, which may be ordered pursuant to an Order and/or statement of work and may be subject to Supplemental Terms. If you are interested in engaging Blackfynn to provide consulting services, please contact us at email@example.com. You are solely responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Services.
1.2 Updates. You understand that Blackfynn Properties are evolving. You acknowledge and agree that Blackfynn may update Blackfynn Properties with or without notifying you. You may need to update third-party software (e.g. your device’s operating system) from time to time in order to use Blackfynn Properties.
1.3 Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Blackfynn Properties or any portion of Blackfynn Properties, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Blackfynn Properties (including images, text, page layout or form) of Blackfynn; (c) you shall not use any metatags or other "hidden text" using Blackfynn’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Blackfynn Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) access Blackfynn Properties in order to build a similar or competitive website, application or service; (f) except as expressly stated herein, no part of Blackfynn Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Blackfynn Properties. Any future release, update or other addition to Blackfynn Properties shall be subject to the Terms. Blackfynn, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of Blackfynn Properties terminates the licenses granted by Blackfynn pursuant to the Terms.
1.4 Unauthorized Use. You agree that you will not, and will not permit any other User or third party to, under any circumstances: (a) interfere with or damage Blackfynn Properties, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology; (b) modify or cause to be modified any files that are owned by and part of Blackfynn Properties; (c) disrupt, overburden, or aid or assist in the disruption or overburdening of: (i) any computer or server used to offer or support Blackfynn Properties; or (ii) the enjoyment of Blackfynn Properties by any other person; (d) attempt to gain unauthorized access to Blackfynn Properties, accounts registered to others, or to the computers, servers or networks connected to Blackfynn Properties by any means other than the User (as defined in Section 2.1) interface provided by Blackfynn, including, but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of Blackfynn Properties; (e) access, tamper with or use non-public areas of Blackfynn Properties, Blackfynn’s computer systems, or the technical delivery systems of Blackfynn’s providers; (f) attempt to probe, scan, or test the vulnerability of any Blackfynn system or network, or breach any security or authentication measures; (g) disrupt or interfere with the security of, or otherwise cause harm to, Blackfynn Properties, systems, resources, accounts, passwords, servers or networks connected to or accessible through Blackfynn Properties or any affiliated or linked sites; or (h) avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Blackfynn or any of Blackfynn’s providers or any other third party to protect Blackfynn Properties.
2.1 Registering Your Account. You may browse the Website without registering an account. However, in order to access certain features of Blackfynn Properties you are required to become a Registered User. For purposes of the Terms, a "Registered User" is a user of the Services ("User") who has registered an account on the Website ("Account"). In certain instances, you may need to be authorized by a Subscriber in order to become a Registered User. Subscribers may be limited in the number of Registered Users permitted to access the Services, and Subscriber agrees not to authorize more than the agreed upon number of Registered Users as identified in an Order.
2.2 Registration Data. In registering for use of the Services you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (the "Registration Data"); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You are responsible for all activities that occur under your Account. If you provide any information that is untrue, inaccurate, not current or incomplete, or Blackfynn has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Blackfynn has the right to suspend or terminate your Account and refuse any and all current or future use of Blackfynn Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You are entirely responsible for all activities that occur under your Account, and as a Subscriber, you are responsible for all activities that occur under the Accounts of your authorized Registered Users. You may not share your Account or password with anyone, and you agree to (a) notify Blackfynn immediately of any unauthorized use of your password or any other breach of security; and (b) exit from your Account at the end of each session. You agree to (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify us promptly of any such unauthorized access or use, and (ii) use the Services only in accordance with applicable laws and government regulations, including, without limitation, all laws regarding the export of technical data.
2.3 Third Party Accounts. In order to access and use certain features of the Services, you may need to link your Account with third party account(s) (each, a "Third Party Account") that govern your use and access to the applications, data services, software and content made available by third parties which are supported by our Services (collectively, "Third Party Services"). You represent that you are entitled to disclose your Third Party Account login information to us and/or grant us access to your Third Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts may be accessible through the Services. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS, AND BLACKFYNN DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD PARTY ACCOUNTS.
3.1 Fees and Payment Terms. You will pay Blackfynn the fees for the Service as described in the applicable Order and/or statement of work. Unless otherwise agreed in the Order or statement of work, all fees are billed in advance on an annual basis and are due within thirty (30) days of receipt of invoice. All fees owed by you in connection with these Terms are exclusive of, and you shall pay, all sales, use, excise and other taxes and applicable export and import fees, custom duties and similar charges that may be levied upon you in connection with these Terms, except for employment taxes and taxes based on Blackfynn’s net income. Blackfynn reserves the right (in addition to any other rights or remedies it may have) to discontinue the Services and suspend your Account if any fees are more than thirty (30) days overdue until such amounts are paid in full.
3.2 Free Trials and Beta Use. Any free trial or other beta use periods that provides you with access to the Services must be used within the specified time of the trial or beta use period. At the end of the trial/beta period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable subscription fee. In the event you are using the Services on a free trial or beta use basis, the terms of Section 8.2 will not apply to you and will be null and void.
4.1 Blackfynn Properties. You agree that Blackfynn and its suppliers own all rights, title and interest in Blackfynn Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying Blackfynn Properties. Blackfynn’s stylized name and other related graphics, logos, service marks and trade names used on or in connection with Blackfynn Properties are the trademarks of Blackfynn and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Blackfynn Properties are the property of their respective owners.
4.2 Your Content. As between you and Blackfynn, you retain all right, title and interest in and to any data or data sets, content or information you upload or transmit to the Services ("Your Content"). You acknowledge that you are solely responsible for Your Content that you upload, post, transmit, or otherwise make available through the Service, and that other users are similarly responsible for all content they make available through the Services. You hereby grant Blackfynn a non-exclusive and fully sublicensable right and license to use, license, distribute, reproduce, modify, adapt, publicly perform, publicly display, and create derivative works of Your Content (in whole or in part) for the purposes of operating and providing the Services to you and to our other users; provided, however, you acknowledge and agree that Blackfynn may use Your Content to create aggregated, anonymized analytics and insights that cannot be associated with you, Users, or any individuals to whom the content pertains. Without limiting the foregoing, Company shall have the right to remove any of Your Content that violates the Terms or is otherwise objectionable. Please remember that other users may search for, see, use, modify and reproduce any of Your Content that you submit to any "public" or "shared" area of the Services, subject to any privacy settings or license restrictions you or the applicable Subscriber set within the Services. You represent and warrant that you have provided all notices and obtain all rights, consents and licenses necessary to grant Blackfynn the foregoing license.
4.3 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Blackfynn through its suggestion, feedback, wiki, forum or similar pages ("Feedback") is at your own risk and that Blackfynn 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 Blackfynn a fully paid, royalty-free, perpetual, irrevocable, worldwide, 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 Blackfynn Properties.
5. Prohibited Activities. You agree that the following actions are prohibited and constitute a material breach of these Terms. This list is not meant to be exhaustive, and Blackfynn reserves the right to determine what types of conduct it considers to be inappropriate use of the Services. In the case of inappropriate use, Blackfynn may take such measures as it determines in its sole discretion. By way of example, and not as a limitation, you agree that you will not:
5.1 Use the Services or any of Your Content or other User Content for any purpose or make any other actions in violation of local, state, national, or international laws or regulations.
5.2 Use any User Content you have access to outside of content uploaded by your Subscriber institution’s Users, in excess of the scope of any license granted by the applicable User.
5.3 Violate any code of conduct or other guidelines which may be applicable.
5.4 Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
5.5 Publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information.
5.6 Upload or download data and/or files that contain software or other material or information protected by intellectual property laws or other laws, unless you own or control the rights thereto or have secured all necessary consents or have otherwise secured the rights to upload or download such data, files, material, or information for use as contemplated hereunder (including without limitation, IRB approval, as applicable, and with respect to human subject data, the consent of the applicable subject(s)).
5.7 Upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another’s computer.
5.8 Include any protected health information as defined in HIPAA or personally identifiable information in any of Your Content uploaded or transmitted to the Services in the event you are using
the Service on a no-fee basis or if you are accessing the Services through an "Academic Subscription";
5.9 Use the Services to make available unsolicited advertising or promotional materials, spam, pyramid schemes, chain letters, or similar forms of unauthorized advertising or solicitation.
5.10 Harvest or otherwise collect information about others, including e-mail addresses, without their consent.
5.11 Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded.
5.12 Engage in any other action that, in the judgment of Blackfynn, exposes it or any third party to potential liability or detriment of any type.
6. Third Party Services. You understand and agree that the Services may make available certain Third Party Services, and that the access to and use of such Third Party Services, including the
availability thereof and uptimes related thereto, is solely determined by the relevant providers of such Third Party Services ("Third Party Providers"). Blackfynn will have no liability to you or any other person for any unavailability of any Third Party Services, or any Third Party Provider’s decision to discontinue, suspend or terminate any Third Party Services. You acknowledge and agree that certain Third Party Services may be subject to capacity limits and that you will not use any Third Party Services in excess of any capacity limits communicated by Blackfynn to you. All right, title and interest in and to any Third Party Services are and shall remain the sole property of their respective Third Party Providers.
7. Interaction with Other Users. You are solely responsible for your interactions with other Users with whom you interact on the Services; provided, however, Blackfynn reserves the right, but has no obligation, to intercede in such disputes. You agree that Blackfynn will not be responsible for any liability incurred as the result of such interactions. The Services contain data, content or information uploaded or transmitted to the Services by other Users ("User Content"). We are not responsible for and do not control any such User Content. We have no obligation to review and monitor, and do not approve, endorse, or make any representation or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk.
8.1 By You. You agree to indemnify and hold Blackfynn, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the "Blackfynn Parties")
harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your violation of the Terms; or (b) your violation of any applicable laws, rules or regulations. Blackfynn reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Blackfynn in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to Blackfynn Properties.
8.2 By Blackfynn. Blackfynn will indemnify, defend and hold you harmless from any third party suit that alleges that your use of the Services in accordance with the terms herein, infringes such third party’s U.S. copyrights, trade secrets or trademarks, and Blackfynn will pay all damages, judgments and/or settlements incurred by you in connection with such suit.
9. Disclaimer of Warranties.
9.1 GENERAL. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF BLACKFYNN PROPERTIES IS AT YOUR SOLE RISK, AND BLACKFYNN PROPERTIES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. BLACKFYNN PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. BLACKFYNN PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) BLACKFYNN PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF BLACKFYNN PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF BLACKFYNN PROPERTIES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN BLACKFYNN PROPERTIES WILL BE CORRECTED. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BLACKFYNN OR THROUGH BLACKFYNN PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
9.2 HIPAA NOTICE. WITH RESPECT TO USERS WHO ARE ACCESSING THE SERVICES ON A NO-FEE BASIS, YOU SHOULD NOT SHARE ANY PROTECTED HEALTH INFORMATION VIA THE WEBSITE OR SERVICES. THE SERVICES PRESENTED TO NON PAYING USERS ARE NOT INTENDED TO BE USED TO COMMUNICATE PROTECTED HEALTH INFORMATION, AND IT IS NOT INTENDED TO BE COMPLIANT WITH THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA). THE TERM PROTECTED HEALTH INFORMATION INCLUDES INFORMATION AS DEFINED IN HIPAA AS "PROTECTED HEALTH INFORMATION", SUCH AS INFORMATION THAT RELATES TO THE PAST, PRESENT OR FUTURE PHYSICAL OR MENTAL HEALTH OR CONDITION OF AN INDIVIDUAL; THE PROVISION OF HEALTH CARE TO AN INDIVIDUAL; OR THE PAST, PRESENT OR FUTURE PAYMENT FOR THE PROVISION OF HEALTH CARE TO AN INDIVIDUAL. IF YOU DO SHARE ANY PROTECTED HEALTH INFORMATION TO THE SERVICES, YOU DO SO AT YOUR OWN RISK.
10. Limitation of Liability
10.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL BLACKFYNN PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH BLACKFYNN PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE OR EMOTIONAL DISTRESS, WHETHER OR NOT BLACKFYNN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF BLACKFYNN PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE BLACKFYNN PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH BLACKFYNN PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON BLACKFYNN PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO BLACKFYNN PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
10.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL BLACKFYNN PARTIES BE LIABLE TO YOU FOR MORE THAN AN AMOUNT EQUAL TO THE FEES PAID BY YOU DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO LIABILITY HEREUNDER.
10.3 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BLACKFYNN AND YOU. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
11. Term and Termination
11.1 Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and until the termination or expiration of all Orders, unless terminated earlier in accordance with the Terms.
11.2 Termination of Services by Blackfynn. Blackfynn may terminate these Terms at any time, including, without limitation, if you have materially breached any provision of the Terms and do not cure such breach within thirty (30) days of Blackfynn’s notice of such breach, or if Blackfynn is required to do so by law (e.g., where the provision of the Website or the Services is, or becomes, unlawful), Blackfynn has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Blackfynn’s sole discretion and that Blackfynn shall not be liable to you or any third party for any termination of your Account.
11.3 Termination of Services by You. You may terminate these Terms in the event Blackfynn breaches a material term of these Terms and does not cure such breach within thirty (30) days of your notice of such breach. You may also cancel or terminate your subscription in accordance with Section 3.2.
11.4 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your Account and all related information, and Your Content. Upon termination of any Service, your right to use such Service will terminate immediately, except for a limited right for a period of thirty (30) days for you to download and/or otherwise extract Your Content from the Services. After such thirty (30) day period, we have no obligation to maintain a copy of Your Content. All provisions of the Terms, which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
12.1 Violations. If Blackfynn becomes aware of any possible violations by you of the Terms, Blackfynn reserves the right to investigate such violations. If, as a result of the investigation, Blackfynn believes that criminal activity has occurred, Blackfynn reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Blackfynn is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Blackfynn Properties in Blackfynn’s possession in connection with your use of Blackfynn Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to your requests for customer service, or (4) protect the rights, property or personal safety of Blackfynn, its Users or the public, and all enforcement or other government officials, as Blackfynn in its sole discretion believes to be necessary or appropriate.
12.2 No Subsequent Registration. If your registration(s) with or ability to access Blackfynn Properties is discontinued by Blackfynn due to your violation of any portion of the Terms, then you agree that you shall not attempt to re-register with or access Blackfynn Properties through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Blackfynn Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Blackfynn reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
13. International Users. Blackfynn Properties can be accessed from countries around the world and may contain references to services and content that are not available in your country. These references do not imply that Blackfynn intends to announce such services or content in your country. Blackfynn Properties are controlled and offered by Blackfynn from its facilities in the United States of America. Blackfynn makes no representations that Blackfynn Properties are appropriate or available for use in other locations. Those who access or use Blackfynn Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.
14. Dispute Resolution. Please read the following arbitration agreement in this Section ("Arbitration Agreement") carefully. It requires you to arbitrate disputes with Blackfynn and limits the manner in which you can seek relief from us.
14.1 Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Website, to the Services, or to any aspect of your relationship with Blackfynn, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or Blackfynn 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 clarity, this Arbitration Agreement shall also apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
14.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Blackfynn will pay them for you. In addition, Blackfynn will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
14.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Blackfynn. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). 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 arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
14.4 Waiver of Jury Trial. YOU AND BLACKFYNN 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 Blackfynn are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 14.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
14.5 Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, than then claim must be severed from the arbitration and brought into the State or Federal Courts located in Philadelphia, Pennsylvania or the United States District Court for the Eastern District of Pennsylvania. All other claims shall be arbitrated.
14.6 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 the following address: 1218 Chestnut Street, 8th Flooor, Philadelphia, PA 19107 (or email to <firstname.lastname@example.org<>), within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your username (if any), the email address you used to set up 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.
14.7 Severability. Except as provided in subsection 14.5, 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.
14.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Blackfynn.
14.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Blackfynn makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30 days of such change becoming effective by writing Blackfynn at the following address: email@example.com.
15. General Provisions
15.1 Electronic Communications. The communications between you and Blackfynn use electronic means, whether you visit Blackfynn Properties or send Blackfynn e-mails, or whether Blackfynn posts notices on Blackfynn Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Blackfynn in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Blackfynn provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
15.2 Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Blackfynn’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
15.3 Force Majeure. Blackfynn 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, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
15.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Blackfynn Properties, please contact us at: firstname.lastname@example.org. 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.
15.5 Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the Commonwealth of Pennsylvania, 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 this Agreement.
15.6 Notice. Where Blackfynn requires that you provide an e-mail address, you are responsible for providing Blackfynn with your most current e-mail address. In the event that the last e-mail address you provided to Blackfynn is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Blackfynn’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Blackfynn at the following address: 1218 Chestnut Street, 8th Floor, Philadelphia, PA 19107. Such notice shall be deemed given when received by Blackfynn by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
15.7 Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
15.8 Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
15.9 Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.