Effective Date: June 13, 2023
These Terms of Service (“Terms”) are between you (“User” or “You”) and Adjacency Holdings, Inc. (“Company”) and govern your use of Company’s mobile Fixle application (“App”) and the appliance identification content and related features and services available through the Company website, https://fixlehome.com (“Website”). The Website and Apps together are herein referred to as the “Platform.”
By creating an account on the Platform or otherwise accessing or using the Platform, you agree (i) that you are at least 18 years old and (ii) to read, comply with, and be legally bound by these Terms and any additional terms and conditions, documentation, agreements, or policies published on the Platform that are applicable to your use of the Platform (together the “Agreement”). If you do not wish to be bound by the Agreement, do not create an account or otherwise access or use the Platform. Company may, in its sole discretion, refuse to offer the Platform to any person or entity.
Although Company may attempt to notify you when major changes are made to these Terms, from time to time you should review the most up-to-date version here at https://fixlehome.com/fixle-terms-of-use. Company may, in their sole discretion, modify or revise these Terms at any time. By continuing to access and use the Platform, you agree to be bound by such modifications or revisions.
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES AND LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. THUS, CAREFULLY REVIEW THE DISPUTE RESOLUTION SECTION BELOW.
Authorization. Subject to your compliance with the Terms and payment of any applicable Fees, Company hereby grants you a non-exclusive, non-transferable, revokable right to access and use the Platform. If You are using for your own personal uses you will open your account as a personal user and will on use for your own personal, non-commercial purposes. If You open the account as a professional user, You may only use the Platform for your own business purposes and may not provide Platform access to any third party. You do not acquire any rights, express or implied, in the Platform or any other Company Intellectual Property Rights other than those specified in this Agreement.
Accounts. To access and use the Platform, you may need to create an account with Company, either as a personal or professional account. Each User account is personal in nature and may only be used by the User assigned to the account. You may not allow any third party to access or use your account. You are responsible for maintaining the confidentiality and security of your account including, without limitation, keeping the account password confidential. Company is not liable to you or any third party for any unauthorized use of your account, including, without limitation, any damage that results from any unauthorized use of your account.
Links to Third Party Websites. The Platform may include links to other websites or services solely as a convenience. Company is not responsible for the availability of such external sites or resources and does not endorse and is not responsible or liable for any such linked sites or other information, material, products or services contained on other linked sites or accessible through other linked sites. Your use of linked sites is solely at your own risk.
Third Party Platform. The Platform may include integrations with web or other third party services that are accessed through the Platform and subject to terms and conditions with those third parties. These third party services are not part of the Platform and these Terms do not apply to them. Company is not responsible for the content of third party services.
Reservation of Rights. Company reserves all rights not expressly granted to User in these Terms. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to User or any third party any Intellectual Property Rights or other right, title, or interest in or to the Platform, or any and all intellectual property provided to any User in connection with the foregoing.
Your Use of Platform. You acknowledge and Agree that Company is not a party to, and expressly disclaims any liability or responsibility for, any transaction, communication, or other engagement between You and any third party occurring through or in connection with, or otherwise facilitated by, the use of the Platform. Without limiting the generality of the foregoing, Company’s disclaimer of any liability or responsibility includes, without limitation, the success of any such transaction, communication or other engagement, as well as any liabilities or responsibilities related to compliance, notice, or other obligations under any applicable laws arising out of or in connection therewith.
Fees. Any fees owed (if any) (“Fees”) will be identified and agreed upon by You at the time you register your account for a subscription period (“Subscription Period”).
No Refunds. Fees are nonrefundable and there are no refunds or credits for partially used Subscription Periods. However, at any time, and for any reason, Company may provide a refund, discount, or other consideration to some or all of our users (“Credits”). The amount and form of such Credits, and the decision to provide them, are at our sole and absolute discretion. The provision of Credits in one instance does not entitle you to credits in the future for similar instances, nor does it obligate us to provide credits in the future, under any circumstance.
Updated Information. You agree to provide current, complete and accurate purchase and account information for all purchases of our Platform. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that Company can complete your transactions and contact you as needed.
Changes. Company reserves the right to change any Fees or applicable charges upon sixty (60) days’ notice to you.
Taxes. If Fees are owed, You are responsible for paying all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local government or regulatory authority on any amounts payable by you hereunder, other than taxes imposed on Company’s income.
Use Restrictions. User shall not use the Platform for any purpose beyond the scope of the access granted in these Terms. Prohibited uses include, but are not limited to the following:
Acceptable Use. You must not misuse the Platform. You agree not to: (i) copy, modify, or create derivative works of the Platform, in whole or in part; (ii) collect or store, or attempt to collect or store, personal information about other users of our Platform, except as expressly permitted under these Terms or any other agreements that govern your use of the Platform; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component or source code of the Platform, in whole or in part; (iv) transmit or upload any software or other materials that contain any viruses, worms, trojan horses, defects, time bombs or other items of a destructive nature; (v) remove any proprietary notices from the Platform; (vi) use the Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other rights of any person, or that violates any applicable law; (vii) access or use the Platform for any purpose that is to Company’s detriment or commercial disadvantage; (viii) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm the Platform; or (ix) bypass or breach any security device or protection used by Company to access or use the Platform.
User Content. In using the Platform, you may upload, import into, or create text, information, communication, or material, such as images of your appliance or profile information (collectively, “User Content”). Although Company reserves the right to edit or remove content that violates these Terms, you acknowledge and accept responsibility and liability for User Content posted by you.
Sharing User Content. Depending on how you use our Platform, you may be able to share your User Content and other information related to your use of the Platform. Additionally, we may share your User Content, in an anonymized and de-identified form that does not identify you as an individual, with other parties such as our affiliate American Family Insurance, for purposes related to our home inspection and insurance purpose.
Third Party Content. Company may provide access to third party content as part of the Platform including, without limitation, instruction manuals and warranty information, (“Third Party Content”). Company is not responsible for the contents or accuracy of any Third Party Content. Please confirm the accuracy of all Third Party Content before relying on such information. For example, please confirm any warranty information you receive from the Platform and do not use any instruction manuals without independently confirming that the manuals identified by the Platform are appropriate for your appliance.
Reliance on User or Third Party Content. Company does not endorse any User Content, and is not responsible or liable for any User Content or Third Party Content that appears on the Platform.
Ownership of the Platform. Company owns or licenses all rights, title and interest, including all Intellectual Property Rights, in and to the Platform, including without limitation, all software and code that comprise and operate the Platform and all the text, photographs, illustrations, images, graphics, audio, video, URLs and other materials provided by Company through the Platform.
User Content Ownership. Between you and Company, Company owns all User Content and by posting content to the Platform, you hereby assign to Company all right, title, and interest, including all Intellectual Property Rights, in and to your User Content. As owner of the posted User Content, Company has the full right to use, perform, display, reproduce, distribute, modify, make derivative works of, and otherwise exploit the User Content.
Intellectual Property Rights Defined. For purposes of these Terms, “Intellectual Property Rights” means, on a worldwide basis, all patents, trademarks, service marks, trade name rights, logos, drawings, inventions, copyrights, mask works, samples, processes, moral rights, rights of publicity, rights of ownership, designs, design rights, trade secrets, specifications, instruction manuals, technology, materials, know how, information, data, goodwill, improvements and writings, and any applications, registrations or common law rights in any of the foregoing, as applicable.
Feedback. If you send or transmit any communications or materials to Company by mail, email, telephone, or otherwise, suggesting or recommending changes to the Platform, Company’s intellectual property, or other services Company provides, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), you hereby assign to Company all right, title, and interest in the Feedback and Company is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever, although Company is not required to use any Feedback.
Term. These Terms begin on the date you first use the Platform and continue in effect for the Subscription Period.
Cancelation. If you create an account, you may cancel your account on the Platform at any time by following the instructions we provide. Following any cancellation, you will continue to have access to the applicable paid Platform through the end of your then-current Subscription Period. These Terms will then terminate at the end of your then-current Subscription Period.
Right to Terminate. Company reserves the right, with or without notice and in our sole discretion, to terminate these Terms, your account, and/or your ability to access or use our Platform for any reason, including, without limitation, for lack of use or if we believe that you have violated or acted inconsistently with the letter or spirit of these Terms, or in the case of any activity by you that may harm us or other users, including, but not limited to, fraud, abuse of privileges, or misuse of our Platform. You agree that we will not be liable to you or any third party for any such termination.
Company Policy. Company respects the Intellectual Property Rights of others. Company will remove User Content and other materials on the Platform in accordance with the Digital Millennium Copyright Act (“DMCA”) upon receipt of proper notice that such User Content or other materials infringe a third party’s copyright. Additionally, subject to Section 3(c) below, Company will terminate the accounts of repeat infringers.
Notice of Infringement. Any copyright owner, or an agent thereof, who believes that User Content or other materials on the Platform infringes upon their copyrights, may submit a notification pursuant to the DMCA to the address provided below. Such notification must contain the following:
Company may disclose DMCA notices to affected users and third party databases that collect information about copyright takedown notices.
Repeat Infringers. Without limiting anything else in these Terms, Company will terminate any account that receives three (3) DMCA Takedown Actions. A “DMCA Takedown Action” occurs each time User Content or other materials is removed due to a DMCA notice. Company may group multiple DMCA notices received in a short period of time as a single DMCA Takedown Action. Company may remove a DMCA Takedown Action in appropriate circumstances, such as where: (1) the material is restored due to a DMCA counter-notification; or (2) the party who provided the DMCA notice withdraws their complaint.
Address for Notices. DMCA notices and counter-notifications may be sent to Company at the following addresses:
By email to: firstname.lastname@example.org
By mail to: Attention: Fixle
6000 American Parkway
Madison, WI 53783
THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE. COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE PLATFORM, OR ANY OF THE RESULTS FROM THE USE OF THE PLATFORM, WILL MEET USER’S OR ANY THIRD PARTY’S, REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES OR BE SECURE, ACCURATE, COMPLETE, OR ERROR-FREE.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY, ITS AFFILIATES, OR OTHER THIRD PARTIES SHALL CREATE A WARRANTY OF ANY KIND OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY EXPRESSLY GRANTED HEREIN.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU.
You agree to indemnify, defend and hold harmless Company and our officers, directors, and employees from any and all third party claims, liability, damages, costs or demands, including, but not limited to, attorneys’ fees, arising from (i) your use of the Platform, including, but not limited to, all content therein and any products or services obtained by you through the Service, (ii) your violation of the Acceptable Use Provisions of these Terms; (iii) your infringement of any intellectual property or other right of any person or entity; or (iv) your violation of any applicable law or regulation (all of the foregoing, “Claims and Losses”). You agree that we may have our own counsel present at, and participate in, all proceedings or negotiations relating to such Claims and Losses at our expense. Notwithstanding the foregoing, we retain the exclusive right to settle, compromise and pay any and all Claims and Losses, and reserve the right to assume the defense and control of any Claims and Losses.
General. IN NO EVENT SHALL COMPANY OR ITS PARENTS, AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS, OR AGENTS (“REPRESENTATIVES”) BE LIABLE TO YOU UNDER OR IN CONNECTION WITH THESE TERMS FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (EVEN IF PREVIOUSLY APPRISED OF THE POSSIBILITY THEREOF), WHETHER THE BASIS OF THE LIABILITY IS BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), STATUTORY OR ANY OTHER LEGAL THEORY OR FOR ANY ERROR OR INTERRUPTION OF USE; INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS; LOSS OF GOODWILL OR REPUTATION; OR COST OF REPLACEMENT GOODS OR SERVICES. YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES WILL COMPANY OR ITS REPRESENTATIVES BE RESPONSIBLE FOR ANY LOSS, DAMAGE, OR LIABILITY ARISING OUT OF ANY MISTAKES OR OTHER ERRORS MADE BY YOU AS A RESULT OF YOUR USE OF THE PLATFORM.
Limitation. THE AMOUNT OF COMPANY’S LIABILITY TO YOU UNDER ANY AND ALL CLAIMS FOR LOSS OR LIABILITY BASED UPON, ARISING OUT OF, RESULTING FROM, OR IN ANY WAY CONNECTED WITH THESE TERMS SHALL IN NO CASE EXCEED THE FEES ACTUALLY PAID BY YOU TO COMPANY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ACT GIVING RISE TO THE CLAIM OR, IF NO FEES HAVE BEEN PAID DURING THAT PERIOD, THE AMOUNT $500 USD.
Acknowledgement. The Fixle Apps may be available through the Apple App Store or Google Play. You and Company each acknowledge that these Terms and any other terms and conditions imposed by Company with respect to the Fixle Apple App and the Fixle Google App (the “Fixle Apps”) and any other agreements entered into between you and Company in connection with the Fixle Apps (collectively, the “Fixle App Agreements”) are between you and Company only, and not with Apple Inc. or Google, Inc. (each an “App Distributor”), and that Company, not an App Distributor, is solely responsible for the Fixle Apps and the content thereof. In the event the Fixle App Agreements provide usage rules for the Fixle Apps that are in conflict with the App Distributor Terms, the App Distributor Terms shall control with respect to the Fixle Apps.
Scope of License. In addition to the other terms set forth in the Fixle App Agreements, the licenses granted to you for the Fixle App are solely for use by you on a device that utilizes the Apple iOS or Android operating system, as applicable, and in accordance with the usage rules set forth in the applicable App Distributor terms of service.
Maintenance and Support. Company is solely responsible for providing any maintenance and support services with respect to the Fixle Apps, as specified in the Fixle App Agreements or as required under applicable law. You and Company acknowledge that each App Distributor has no obligation whatsoever to furnish any maintenance and support services with respect to the Fixle Apps.
Warranty. Company is solely responsible for any product warranties, whether express or implied by law, to the extent not disclaimed in the Fixle App Agreements. Further, to the maximum extent permitted by applicable law, an App Distributor will have no other warranty obligation whatsoever with respect to the Fixle App and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Company’s sole responsibility.
Product Claims. You and Company acknowledge that Company, not an App Distributor, is responsible for addressing any claims that you or any third party have relating to the Fixle App or your possession and/or use of the Fixle App, including, but not limited to: (1) product liability claims; (2) any claim that the Fixle App fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection, privacy or similar legislation.
Intellectual Property Rights. You and Company acknowledge that, in the event of any third party claim that the Fixle App, or your possession and use of the Fixle App, infringes that third party’s Intellectual Property Rights, the App Distributor is not responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
Third Party Terms. You must comply with applicable third party terms when using the Fixle App.
Third Party Beneficiary. You and Company acknowledge and agree that the App Distributors, and their subsidiaries, are third party beneficiaries to these Terms as applicable to the Fixle App, and that, upon your acceptance of these Terms, each App Distributor will have the right (and will be deemed to have accepted the right) to enforce these Terms (as applicable) against you as a third party beneficiary thereof.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS.
Waiver of Rights. YOU AGREE THAT BY ACCESSING OR USING OUR PLATFORM, YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST THE RELEASED PARTIES ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE OR COLLECTIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
Agreement to Arbitrate.
YOU AGREE THAT ANY AND ALL CLAIMS AND DISPUTES ARISING FROM OR RELATING IN ANY WAY TO THESE TERMS, YOUR ACCESS TO OR USE OF THE PLATFORM, OR YOUR DEALINGS WITH COMPANY IN CONNECTION WITH THE FOREGOING SHALL BE FINALLY SETTLED AND RESOLVED THROUGH BINDING INDIVIDUAL ARBITRATION AS DESCRIBED IN THIS SECTION.
THIS AGREEMENT TO ARBITRATE INVOLVES INTERSTATE COMMERCE, AND, THEREFORE, SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. 1-16 (“FAA”), AND NOT BY STATE LAW.
THIS AGREEMENT TO ARBITRATE IS INTENDED TO BE INTERPRETED BROADLY PURSUANT TO THE FAA.
THE ARBITRATION WILL BE GOVERNED BY THE COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), AS MODIFIED BY THIS SECTION.
FOR ANY CLAIM WHERE THE TOTAL AMOUNT OF THE AWARD SOUGHT IS $10,000 OR LESS, YOU MUST ABIDE BY THE FOLLOWING RULES: (1) THE ARBITRATION SHALL BE CONDUCTED SOLELY BASED ON TELEPHONE OR ONLINE APPEARANCES AND/OR WRITTEN SUBMISSIONS AND (2) THE ARBITRATION SHALL NOT INVOLVE ANY PERSONAL APPEARANCE BY THE PARTIES OR WITNESSES UNLESS OTHERWISE MUTUALLY AGREED BY THE PARTIES. IF THE CLAIM EXCEEDS $10,000, THE RIGHT TO A HEARING WILL BE DETERMINED BY THE AAA RULES, AND THE HEARING (IF ANY) WILL TAKE PLACE IN MADISON, WISCONSIN.
THE ARBITRATOR IS BOUND BY THE TERMS OF THIS AGREEMENT TO ARBITRATE. YOU ACKNOWLEDGE AND AGREE THAT, IN ANY ARBITRATION PROCEEDING, NO DEPOSITIONS WILL BE TAKEN, AND ALL OTHER FORMS OF DISCOVERY OF FACTS WILL BE LIMITED TO THOSE THINGS THAT THE ARBITRATOR DETERMINES, IN ITS SOLE DISCRETION, TO BE NECESSARY. FURTHER, IN ANY ARBITRATION PROCEEDING: (1) THERE SHALL BE NO PUNITIVE, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL OR OTHER SPECIAL DAMAGES; (2) ALL DAMAGES, CLAIMS, AND AWARDS WILL BE GOVERNED BY WISCONSIN LAW; (3) THE PARTIES WILL CONDUCT THE ARBITRATION CONFIDENTIALLY AND EXPEDITIOUSLY AND WILL PAY THEIR OWN COSTS AND EXPENSES OF ARBITRATION, INCLUDING THEIR OWN ATTORNEY FEES. IF YOU PROVE THAT YOU ARE UNABLE TO AFFORD THE AAA FEE, YOU AGREE TO NOTIFY ALL PERSONS AGAINST WHOM YOU HAVE AN ARBITRABLE CLAIM AND GIVE SUCH PERSONS THE OPPORTUNITY, INDIVIDUALLY AND AS A GROUP, TO PAY SUCH FEE. THE PROCEEDING AND THE DECISION SHALL BE KEPT CONFIDENTIAL BY THE PARTIES.
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 THAT PARTY’S INDIVIDUAL CLAIM.
THE ARBITRATOR’S RULING IS BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION, OR APPLICATION MAY BE MADE TO SUCH COURT FOR JUDICIAL ACCEPTANCE OF ANY AWARD AND AN ORDER OF ENFORCEMENT, AS THE CASE MAY BE.
THE ARBITRATION SHALL BE CONDUCTED IN THE ENGLISH LANGUAGE.
EXCEPT IN THE EVENT YOU OPT OUT OF THIS AGREEMENT TO ARBITRATE AS DESCRIBED BELOW, THIS AGREEMENT TO ARBITRATE WILL SURVIVE TERMINATION OF YOUR ACCESS TO OR USE OF OUR PLATFORM AND YOUR RELATIONSHIP WITH US.
Information About Arbitration. INFORMATION ON AAA AND HOW TO START ARBITRATION CAN BE FOUND AT WWW.ADR.ORG. THERE IS NO JUDGE OR JURY IN ARBITRATION. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT AND REVIEW BY A COURT IS LIMITED. YOU WILL NOT BE ABLE TO HAVE A COURT OR JURY TRIAL OR PARTICIPATE IN A CLASS ACTION OR CLASS ARBITRATION.
Waiver of Class Action Rights. YOU UNDERSTAND AND AGREE THAT BY AGREEING TO RESOLVE ANY DISPUTE THROUGH INDIVIDUAL ARBITRATION, YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL. ANY DISPUTE SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND NOT AS A CLASS ACTION, REPRESENTATIVE ACTION, CLASS ARBITRATION, OR SIMILAR PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE THE CLAIMS OF MULTIPLE PARTIES. NOTWITHSTANDING ANY PROVISION IN THE AGREEMENTS TO THE CONTRARY, IF THIS CLASS ACTION WAIVER IS DEEMED INVALID OR UNENFORCEABLE, YOU AGREE THE YOU SHALL NOT SEEK TO, AND WAIVE ANY RIGHT TO, ARBITRATE CLASS OR COLLECTIVE CLAIMS.
Opt-Out of Agreement to Arbitrate. IF YOU WISH TO OPT OUT OF THE AGREEMENT TO ARBITRATE, WITHIN 45 DAYS OF THE EFFECTIVE DATE OF THESE TERMS OR WHEN YOU FIRST USE THE PLATFORM, WHICHEVER IS LATER, YOU MUST SEND US A LETTER STATING: “REQUEST TO OPT-OUT OF AGREEMENT TO ARBITRATE” TO:
6000 American Parkway
Madison, WI 53783
Venue for Litigation. IF THE AGREEMENT TO ARBITRATE IN THIS SECTION IS FOUND UNENFORCEABLE OR TO NOT APPLY FOR A GIVEN DISPUTE, OR IF YOU OPT OUT OF THE AGREEMENT TO ARBITRATE IN ACCORDANCE, THEN, UNLESS PROHIBITED BY APPLICABLE LAW, THE PROCEEDINGS MUST BE BROUGHT EXCLUSIVELY IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WISCONSIN OR THE STATE COURTS OF WISCONSIN LOCATED MADISON, AS APPROPRIATE. YOU ALSO THEREFORE AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF EACH OF THESE COURTS FOR THE PURPOSES OF LITIGATING SUCH CLAIMS OR DISPUTES, AND YOU HEREBY WAIVE YOUR RIGHT TO A JURY TRIAL, WAIVE YOUR RIGHT TO INITIATE OR PARTICIPATE IN A CLASS OR COLLECTIVE ACTION, AND AGREE TO REMAIN BOUND BY ANY AND ALL LIMITATIONS OF LIABILITY AND DAMAGES INCLUDED IN THIS AGREEMENT.
Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Wisconsin without giving effect to any choice of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Wisconsin.
Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under these Terms shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
Notices. You consent to receive all communications including notices, agreements, disclosures, or other information from Company electronically. Company may communicate by email or by posting to the Company Platform. For all notices to Company, write to the following addresses:
Company, Inc. [insert address]
Survival. The provisions of these Terms which by their nature are intended to survive the termination or cancellation of these Terms shall continue as valid and enforceable obligations notwithstanding any such termination or cancellation. Without limiting the foregoing, the provisions of the regarding indemnity and limitations of liability, shall survive the termination or cancellation of these Terms.
Severability. If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, any warranty disclaimers and limitations of liability set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect.
Force Majeure. Except with regard to payments due to Company, neither Party will be liable for any delays or failures in performance due to circumstances beyond its reasonable control. In the event any such delay continues for a period of sixty (60) or more days, then either Party may terminate these Terms upon ten (10) business days’ prior written notice, provided Customer shall remain responsible for payments due to Company prior to termination.
Entire Agreement. These Terms comprise the entire agreement between you and us and supersede all prior agreements between you and us regarding the subject matter contained herein. Where applicable, in the event of any conflict or inconsistency between the provisions of (i) these Terms, and (ii) any other agreements between you and us related to your use of the Platform, the governing order of precedence shall be in the priority listed in this sentence.
[END OF THESE TERMS]