TIER1 DIGITAL USA, INC.
EMPLOYEE WEBSITE TERMS OF SERVICE
Last Updated: April 30, 2020
These Employee Terms of Service (“Agreement” or “Terms of Service”) are a legally binding agreement between you (the “User,” “you,” or “your”) and Tier1 Digital USA , Inc. (“Tier1 Digital USA,” “we,” “us,” “our”). If use our Services, you are bound by these Terms of Service.
PLEASE NOTE THAT OUR WEBSITE/APP AND SERVICES AND/OR TRACK+ CARE SOLUTION ARE NOT INTENDED FOR EMERGENCY SITUATIONS. IF YOU HAVE A MEDICAL EMERGENCY, PLEASE IMMEDIATELY CALL 911, GO TO A HOSPITAL, AND/OR CALL YOUR DOCTOR OR OTHER HEALTHCARE PROVIDER.
PLEASE READ THE TERMS CONTAINED IN THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. PLEASE NOTE THAT THESE TERMS CONTAIN A BINDING AND MANDATORY ARBITRATION PROVISION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS AND LIMITS REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE OUR WEBSITE/APP OR SERVICES AND/OR TRACK+ CARE SOLUTION.
- INTRODUCTION TO TIER1 DIGITAL USA AND OUR WEBSITE/APP AND SERVICES AND/OR TRACK+ CARE SOLUTION
Tier1 Digital USA provides a Software as a Service (“SAAS”) based solutions for the Agriculture, Food Supply Chain, and other industries covering ERP, quality, online markers, food safety and more (our “Services”). In the light of the novel COVID-19 pandemic, our first application (the “Track+ Care Solution”) will allow businesses to monitor the safety of their employees and their environment by monitoring and recording temperatures, other symptoms and any possible contact with a COVID-19 patient. Your company has made arrangements for you to use our Track+ Care Solution to monitor your temperature and other symptoms to see if you might have COVID-19. By using the Track+ Care Solution, you are consenting to your company and Tier1 Digital USA to record, monitor, and compare your symptoms when you first report to work and other times during the day.
These Employee Terms of Service sets forth the terms and conditions for your employees, agents, contractors and others, authorized by the employer (collectively “Employees”) to use our Services and/or Track+ Care Solution. The Employer Terms of Services sets forth the general terms and conditions under which we will provide our Services and our Track+ Care Solution to our business customers. An Employees cannot access our platform, Services, or our Track+ Care Solution without the employer’s authorization, who will be liable for any damages suffered by us as a result of your access to our Platform or use our Services and/or our Track+ Care Solution..
- TERRITORIAL APPLICATION
We are currently authorized to provide our services in the United States and Canada. We are not yet authorized to provide our services in the European Union or Switzerland. If you reside in the European Union or Switzerland, please do not register your company or yourself for or use our Services. When we determine that you are a resident in the European Union or Switzerland, we will terminate your service.
- ELIGIBILITY & ACCESS RESTRICTIONS
To be eligible to register to use our Services and/or our Track+ Care Solution, you must meet the following criteria and represent and warrant that you: (1) are 18 years of age or older; (2) are not currently restricted from accessing our Services or our Track+ Care Solution, or not otherwise prohibited from having an account, (3) are not our competitor, or are not using our Services or our Track+ Care Solution for reasons that are in competition with us; (4) will only maintain one registered account at any given time; (5) have full power and authority to enter into this Agreement and doing so will not violate any other agreement to which you are a party; (6) will not violate any of our rights, including intellectual property rights such as patent, copyright, and trademark rights; (7) agree to provide at your cost all equipment, browser software, and internet access necessary to use our Services and/or our Track+ Care Solution; and (8) you are an employee of one of our clients and you have been given access to our Services and/or the Track+ Care Solution.
To use our Services and/or Track+ Care Solution, you need to set up an account (“Account”). When you set up an Account, you will need to provide information that may include your name, email address, phone number, payment method, personal video, and other personal information, and create a password (“Password” and collectively with the other information, “Credentials”). You agree that all information you provide is true, accurate, current and complete, and you agree to maintain and promptly update such information to keep it current. You may not transfer or share your Password or Account (collectively, the “Account Information”) with anyone outside of your practice. You must keep your Credentials and Account Information private. If your Credentials and/or Account Information is lost or stolen or otherwise use by someone other than you, you be liable for any and or damages that we suffer as a result of actions.
You are responsible for maintaining the confidentiality of your Account Information and for all activities that occur under your Password or Account. You agree to immediately notify us upon becoming aware of any unauthorized use of your Account Information. We reserve the right to take any and all action, as it deems necessary, regarding the security of our Services and/or Track+ Care Solution and your Account Information. Under no circumstances shall Tier1 Digital USA be held liable to you for any claims or damages resulting from or arising out of your use of our Services and/or Track+ Care Solution, your use of the Account Information, or your release of the Account Information to a third party. You agree to defend, indemnify, and hold us harmless for any damages resulting from any improper use of your Credentials or Account Information.
- CONSENT TO OBTAIN ELECTRONIC MEDICAL RECORDS
You hereby consent to us storing using, disclosing, and sharing your medical symptoms, as recorded by the Track+ Care Solution, with our medical and health service providers, including nurses, doctors and other health providers (collectively “Health Professionals”) with a need to know, in accordance with the terms and conditions set forth in this Terms of Service. You also authorized such Health Professionals to share with other medical personal with a need to know. You may withdraw this consent at any time by emailing us at firstname.lastname@example.org. But please note that if you withdraw this consent, you will not be able to use the Track+ Care Solution.
- HIPAA CONSENT
You hereby consent to your Employer and Tier1 Digital USA, provided they adhere to Health Insurance Portability and Accountability Act (“HIPAA”), to access, use, and disclose your Protected Health Information (“PHI) for monitoring, advising, and health care operations provided to you via our Services and/or Track+ Care Solution in accordance with the terms and conditions set forth in this Terms of Service. You may withdraw this consent at any time by emailing us at email@example.com. But please note that if you withdraw this consent, it may affect our and our/your Employer’s ability to provide you our services and the advice and counsel set forth in this Terms of Service.
- SERVICE LICENSE
Subject to your compliance with the terms of this Agreement, we grant you a limited, non-exclusive, revocable, non-transferable, non-licensable, non-sublicensable license to access and use our Services and/or our Track+ Care Solution to access, stream, and use content made available in or otherwise accessible through our Services and/or Track+ Care Solution, strictly in accordance with this Agreement.
You will not use, copy, adapt, modify, prepare derivative works based upon our Services and/or Track+ Care Solution, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit our Services and/or Track+ Care Solution, except as expressly permitted in this Agreement.
When accessing our Services and/or Track+ Care Solution, you need to make sure that your internet connection is adequate. You are solely responsible for your internet connection including and not limited to the applicable charges, rates, tariffs, and other fees that might apply.
YOU AGREE THAT WE ARE NOT LIABLE FOR ANY DAMAGES OR INJURY RESULTING FROM YOUR ACCESS OR USE OF OUR WEBSITE/APP OR SERVICES AND/OR TRACK+ CARE SOLUTION. WE PROVIDE NO WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY OF MERCHANTABILITY. THERE IS NO WARRANTY WHICH WILL EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. ANY DAMAGE ALLEGED FOR A LOSS OR INJURY IS LIMITED TO THE FEE, IF ANY, PAID TO TIER1 DIGITAL USA FOR THE ABILITY TO ACCESS OR USE OUR WEBSITE/APP OR SERVICES AND/OR TRACK+ CARE SOLUTION.
- ACCESS AND SERVICE RESTRICTIONS
You agree that our Services and/or Track+ Care Solution, including but not limited to the Website/App, graphics, trademarks, and editorial content, contains proprietary content, information, and material, which are owned by Tier1 Digital USA and/or our licensors, including our customers, brands and agencies, and are protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary content, information or materials other than for your permitted use of our Services and/or Track+ Care Solution or in any manner that is inconsistent with the terms contained in this Agreement.
You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on our Website/App or Services and/or Track+ Care Solution, in any manner, and you will not exploit our Website/App or Services and/or Track+ Care Solution in any unauthorized way whatsoever, including but not limited to, using our Website/App or Services and/or Track+ Care Solution to transmit any computer viruses, worms, Trojan horses or other malware, or by trespassing or burdening network capacity. You further agree not to use our Website/App or Services and/or Track+ Care Solution in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that we are not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using our Website/App or Services and/or Track+ Care Solution.
- RESERVATION OF RIGHTS
You acknowledge and agree that our Website/App and Services and/or Track+ Care Solution are provided for your use. Except to the extent necessary to access and use our Website/App or Services and/or Track+ Care Solution, nothing in this Agreement grants any title or ownership interest in or to any copyrights, patents, trademarks, trade secrets or other proprietary rights in or relating to our Website/App or Services and/or Track+ Care Solution, whether expressly, by implication, estoppel, or otherwise. Tier1 Digital USA and its licensors and service providers reserve and will retain their entire right, title, and interest in and to our Website/App and Services and/or Track+ Care Solution, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
- ACCESS RIGHTS
- USER DO’S AND DON’T’S
As a condition to access our Website/App and/or Services and/or Track+ Care Solution, you agree to this Agreement and to strictly observe the following Do’s and Don’ts:
- Comply with all applicable laws, including, without limitation, tax laws, export control laws and regulatory requirements;
- Provide accurate information to Tier1 Digital USA and update from time to time as may be necessary;
- Review and comply with notices sent by Tier1 Digital USA , if any, concerning our Website/App or Services and/or Track+ Care Solution.
- Duplicate, license, sublicense, publish, broadcast, transmit, distribute, perform, display, sell, rebrand, otherwise transfer or commercially exploit our Website/App or Services and/or Track+ Care Solution (excluding any user content);
- Reverse engineer, decompile, disassemble, decipher, capture screen shots, or otherwise attempt to derive the source code for any underlying intellectual property used to provide our Website/App or Services and/or Track+ Care Solution, or any part thereof;
- Utilize information, content or any data you view on and/or obtain from our Website/App or Services and/or Track+ Care Solution to provide any service that is competitive with us;
- Imply or state, directly or indirectly, that you are affiliated with or endorsed by Tier1 Digital USA unless you have entered into a written agreement with us;
- Adapt, modify or create derivative works based on our Website/App or Services and/or Track+ Care Solution or technology underlying our Website/App or Services and/or Track+ Care Solution, or other Users’ content, in whole or in part;
- Rent, lease, loan, trade, sell/re-sell access to our Website/App or Services and/or Track+ Care Solution or any information therein, or the equivalent, in whole or part;
- Deep-link to our Website/App for any purpose, i.e. including a link to our proprietary web pages other than our home page;
- Access, reload, or “refresh” or make any other request to transactional servers that are beyond generally accepted usage of web-based applications;
- Use manual or automated software, devices, scripts robots, other means or processes to “scrape”, “crawl” or “spider” any web pages contained in the Website/App;
- Use automated methods to add contacts or send messages;
- Engage in “framing”, “mirroring”, or otherwise simulating the appearance or function of our Website/App;
- Attempt to or actually access our Website/App or Services and/or Track+ Care Solution by any means other than through the interface provided by Tier1 Digital USA ;
- Attempt to or actually override any security component included in or underlying our Website/App or Services and/or Track+ Care Solution;
- Engage in any action that interferes with the proper working of or places an unreasonable load on our infrastructure, including but not limited to unsolicited communications, attempts to gain unauthorized access, or transmission or activation of computer viruses;
- Remove any copyright, trademark or other proprietary rights notices contained in or on our Website/App or Services and/or Track+ Care Solution, including those of both Tier1 Digital USA or any of our licensors; or
- Use any information obtained from our Website/App or Services and/or Track+ Care Solution to harass, abuse or harm another User.
- TIER1 DIGITAL USA COMMUNICATIONS
You understand and agree that you may receive information and push notifications from Tier1 Digital USA via email, text message on your mobile device, or calls to your mobile number. You hereby consent to receive communications via email, text message or notifications on your mobile device, or calls to your mobile number. You acknowledge that you may incur additional charges or fees from your wireless provider for these communications, including text message charges and data usage fees, and you acknowledge and agree that you are solely responsible for any such charges and fees and not Tier1 Digital USA .
- Push Notification. You can opt out of receiving push notifications through your device settings. Please note that opting out of receiving push notifications may impact your use of our Website/App and Services and/or Track+ Care Solution.
Our Track+ Care Solution is currently provided to you at no cost. But we are charging your Company for access to our Services and/or the Track+ Care Solution. In the event that we modify the fees in the future, we will communicate such modification to you as per the procedure detailed under Section 23 or as otherwise specified in another agreement between Tier1 Digital USA and you.
You agree to indemnify, defend, and hold Tier1 Digital USA and our officers, employees, managers, directors, customers, and agents (the “Indemnitees”) harmless from and against any and all costs, liabilities, losses and expenses (including but not limited to reasonable attorneys’ fees) resulting from any claim, suit, action, demand or proceeding brought by any third party against Tier1 Digital USA and our Indemnitees arising from any of the following: (i) a breach of this Agreement; (ii) the negligence, fraud, or willful misconduct of you or your employees, agents, or contractors; (iii) incorrect information provided by you in your account or elsewhere; or (iv) a failure by you, agents, contractors or invitees to comply with applicable laws and regulations.
Your access to and use of our Website/App, Services and/or Track+ Care Solution or any content are at your own risk. You understand and agree that our Website/App, Services and/or Track+ Care Solution are provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law,
We make no warranty or representation and disclaim all responsibility and liability for: (i) the completeness, accuracy, availability, timeliness, security or reliability of our Website/App or Services and/or Track+ Care Solution or any content; (ii) any harm to your computer system, loss of data, or other harm that results from your access to or use of our Website/App or Services and/or Track+ Care Solution or any content; (iii) the deletion of, or the failure to store or to transmit, any content and other communications maintained by our Website/App or Services and/or Track+ Care Solution; and (iv) whether our Website/App or Services and/or Track+ Care Solution will meet your requirements or be available on an uninterrupted, secure, or error-free basis. No advice or information, whether oral or written, obtained from us or through our Website/App or Services and/or Track+ Care Solution, will create any warranty or representation not expressly made herein.
WE DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
WE DO NOT REVIEW, VERIFY, REVISE, ENDORSE, OR OTHERWISE APPROVE ANY CONTENT CREATED OR POSTED BY OTHERS ON OUR WEBSITE OR COMMUNICATED TO OTHER USERS OR THIRD PARTIES VIA OUR WEBSITE/APP, SERVICES. AND/OR TRACK+ CARE SOLUTION. BUT TIER1 DIGITAL USA WILL REMOVE CONTENT THAT VIOLATES ANY LAWS OR THIS AGREEMENT.
UNDER NO CIRCUMSTANCES WILL TIER1 DIGITAL USA BE LIABLE IN ANY WAY FOR ANY CONTENT CREATED OR POSTED BY OUR USERS FOR, INCLUDING, WITHOUT LIMITATION, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF SUCH CONTENT. TIER1 DIGITAL USA SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY WHATSOEVER WITH RESPECT TO THE CREATION OR POSTING OF SUCH CONTENT.
- LIMITATION OF LIABILITY
You acknowledge and agree that, in no event will Tier1 Digital USA be liable to you or any third party for any indirect, punitive, exemplary, incidental, special, or consequential damages whether in contract, tort (including negligence), or otherwise arising out of this Agreement, or the use of, or the inability to use, our Website/App or Services and/or Track+ Care Solution, including, without limitation, any information made available through our Website/App or Services and/or Track+ Care Solution pursuant to this Agreement. In the event the foregoing limitation of liability is determined by a court of competent jurisdiction to be unenforceable, then the maximum liability for all claims of every kind will not exceed one times (1x) the aggregate of payments received under this Agreement. The foregoing limitation of liability will cover, without limitation, any technical malfunction, computer error or loss of data, and any other injury arising from the use of our Website/App or Services and/or Track+ Care Solution. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. To the extent that Tier1 Digital USA may not disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Tier1 Digital USA ’s liability will be the minimum permitted under applicable law.
You may terminate this binding legal Agreement with Tier1 Digital USA by providing thirty (30) days prior written notice, with a possible termination charge.
All sections, which by their nature and context are intended to survive the termination of this Agreement, will survive.
- COPYRIGHT INFRINGEMENT/DMCA NOTICE
If you believe that any content on our Website/App or Services and/or Track+ Care Solution violates your copyright, and you wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to the Digital Millennium Copyright Act of 1998 (“DMCA Takedown Notice”)) must be provided to our designated Copyright Agent.
- Your physical or electronic signature;
- Identification of the copyrighted work(s) that you claim to have been infringed;
- Identification of the material on our Website/App or Services and/or Track+ Care Solution that you claim is infringing and that you request us to remove;
- Sufficient information to permit us to locate such material;
- Your address, telephone number, and email address;
- A statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Tier1 Digital USA ’s Copyright Agent to receive DMCA Takedown Notices is Sri Sabesan, firstname.lastname@example.org, at Tier1 Digital USA , Attn: DMCA Notice, 16192 Coastal Highway, Lewes, Delaware 19958 USA. You acknowledge that for us to be authorized to take down any content, your DMCA Takedown Notice must comply with all the requirements of this Section. Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by Tier1 Digital USA in connection with the written notification and allegation of copyright infringement.
- U.S EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Tier1 Digital USA ’s activities regarding screening of COVID-19 symptoms in employees at their workplace are fully in compliance with the U.S Equal Employment Opportunity Commission Guidelines, which can be found here.
This Agreement is only for your benefit. You shall have no right to assign this Agreement or any benefits or obligation hereunder to any other party or legal entity. Any attempted assignment shall be void.
- ANTI-BRIBERY AND EXPORT COMPLIANCE
You agree not to promote, approach, use, distribute, transfer, provide, sub-license, share with, or otherwise offer our Website/App or Services and/or Track+ Care Solution in violation of any laws or this Agreement, including, without limitation, the United States Foreign Corrupt Practices Act, the UK Bribery Act and similar anti-corruption statutes in all jurisdictions. Without limiting the foregoing, you will not knowingly directly or indirectly export, re-export, transfer, make available or release (collectively, “Export”) our Website/App or Services and/or Track+ Care Solution to any destination, person, entity or end-use prohibited or restricted under the US law without prior US government authorization to the extent required by the applicable export control regulations, including without limitation, to any parties listed on any of the denied parties lists or specially designated nationals lists maintained under the Export Administration Regulations or the Security, and the Foreign Asset Control Regulations (31 CFR 500 et seq.) administered by the US Department of Treasury, Office of Foreign Assets Control without appropriate US government authorization to the extent required by the applicable regulations.
We reserve the right, at our sole discretion, to change or modify this Agreement at any time. In the event, we modify the terms of this Agreement, such modifications shall be binding on you only upon your acceptance of the modified Agreement. We will inform you about the modifications via email, on our Services and/or Track+ Care Solution by posting a modified version of this page, or by a comparable means within a reasonable time period. Your continued use of our Website/App or Services and/or Track+ Care Solution shall constitute your consent to such changes.
- RELATIONSHIP OF PARTIES
The parties hereto are independent contractors, and nothing contained herein shall be interpreted as creating any relationship other than that of independent contracting parties. The parties shall not be construed as being partners, joint ventures, shareholders, employer/employee, or agent/servant. The User has no power or authority to bind Tier1 Digital USA to any obligation, agreement, debt or liability. The User shall not hold itself out as an agent or representative of Tier1 Digital USA .
- GOVERNING LAW
This Agreement shall be governed by the law of the State of Delaware, without respect to its conflicts of laws principles. Each of the parties to this Agreement consents to the exclusive jurisdiction and venue of the state and federal courts located Orange County in the State of California for any actions not subject to Dispute Resolution and Arbitration provisions as set forth in Section 26.
- DISPUTE RESOLUTION AND ARBITRATION
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO WAIVE YOUR RIGHT TO A JURY TRIAL OR TRIAL BY COURT AND TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH TIER1 DIGITAL USA AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
- Binding Arbitration
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Tier1 Digital USA agree (a) to waive your and Tier1 Digital USA ’s respective rights to have any and all Disputes arising from or related to this Agreement, use of our Website/App or Services and/or Track+ Care Solution, resolved in a court, and (b) to waive your and Tier1 Digital USA ’s respective rights to a jury trial. Instead, you and Tier1 Digital USA agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or a jury in court).
- No Class Arbitrations, Class Actions or Representative Actions
You and Tier1 Digital USA agree that any Dispute arising out of or related to these Terms of Service or use or access of our Website/App or Services and/or Track+ Care Solution is personal to you and Tier1 Digital USA and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Tier1 Digital USA agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Tier1 Digital USA agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
- Federal Arbitration Act
You and Tier1 Digital USA agree that these Terms of Service affect interstate commerce and that the enforceability of this Section 26 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
- Notice; Informal Dispute Resolution
You and Tier1 Digital USA agree that each party will notify the other party in writing of any arbitral or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Tier1 Digital USA shall be sent by certified mail or courier to Tier1 Digital USA , Attn: Sriraman Sabesan, 16192 Coastal Highway, Lewes, Delaware 19958 USA. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Tier1 Digital USA account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with this Agreement and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and Tier1 Digital USA cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Tier1 Digital USA may, as appropriate and in accordance with this Section 26, commence an arbitration proceeding.
EXCEPT FOR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND TIER1 DIGITAL USA AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR TIER1 DIGITAL USA WITHIN (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND TIER1 DIGITAL USA WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You and Tier1 Digital USA agree that (a) any arbitration will occur in the State of California, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section, and (c) that the state or federal courts of the State of California, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
- Authority of Arbitrator
As limited by the FAA, these Terms of Service and the applicable AAA rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitral, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms of Service. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual. Notwithstanding anything to the contrary herein or the applicable AAA rules, discovery in the arbitration shall be limited to one set of interrogatories, one set of requests for admissions, and one set of requests for production of documents.
The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. We will not seek and hereby waive all rights we may have under applicable law to recover, attorneys’ fees and expenses if we prevail in arbitration.
- Rules of AAA
The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879. By agreeing to be bound by these Terms of Service, you either (a) acknowledge and agree that you have read and understand the rules of AAA, or (b) waive your opportunity to read the rules of AAA and any claim that the rules of AAA are unfair or should not apply for any reason.
If any term, clause or provision of this Section 26 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 26 will remain valid and enforceable. Further, the waivers set forth herein are severable from the other provisions of this Agreement and will remain valid and enforceable, except as prohibited by applicable law.
- Opt-Out Right
YOU HAVE THE RIGHT TO OPT OUT OF BINDING ARBITRATION WITHIN THIRTY (30) DAYS OF THE DATE YOU FIRST ACCEPTED THE TERMS OF THIS SECTION 26 BY WRITING TO: Tier1 Digital USA , RE: OPT-OUT, 16192 Coastal Highway, Lewes, Delaware 19958 USA. IN ORDER TO BE EFFECTIVE, THE OPT OUT NOTICE MUST INCLUDE YOUR FULL NAME AND CLEARLY INDICATE YOUR INTENT TO OPT OUT OF BINDING ARBITRATION. BY OPTING OUT OF BINDING ARBITRATION, YOU ARE AGREEING TO RESOLVE DISPUTES IN ACCORDANCE WITH SECTION 26.