TAG.BIO Terms of Service and End User License Agreement
Last Updated: January 18, 2016
Welcome, and thank you for your interest in TAG.BIO, INC. (“TAG.BIO,” “we,” or “us”) and our website at http://old.tag.bio, along with our related websites, networks, mobile applications (the “App”), and other services provided by us (collectively, our “Service”). This TAG.BIO Terms of Service and End User License Agreement and any additional policies (the “Policies”) (collectively, the “EULA”) are a legally binding contract between you and TAG.BIO regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY. BY CLICKING “I ACCEPT,” OR BY USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS EULA. If you are not eligible, or do not agree to the Terms, then you do not have our permission to use the Service.
You acknowledge and agree that, as provided in greater detail in the EULA:
the App is licensed, not sold to you, and that you may use the Service only as set forth in this EULA;
the use of the Service may be subject to separate third party terms of service and fees, including without limitation the terms of service and data, SMS, MMS, and other fees of your mobile network operator (the “Carrier”), which are your sole responsibility;
access to certain features of the Service may require access to information about the location of your device, such as GPS coordinates;
the Service is provided “as is” without warranties of any kind and TAG.BIO’s liability to you is limited;
disputes arising hereunder will be resolved by binding arbitration as set forth in the EULA, and by accepting this EULA, as provided in greater detail in Section 26, you and TAG.BIO are each waiving the right to a trial by jury or to participate in a class action;
the App requires access to the following services on your mobile device: UDID, MAC address, or other applicable device identifier, phone state and identity, internet, SMS/MMS messaging, and location; and
if you are using the App on an iOS-based device, you agree to and acknowledge the “Notice Regarding Apple”, below.
BIO Service Overview. The Service allows users to upload data sets (“User Data Sets”), create data analysis modules (“User Protocols”), run User Protocols and store analyses of User Data Sets (“User Analyses”), and to compile User Analyses into reports (“User Reports”). The Service provides users access to data sets uploaded by TAG.BIO (“TAG.BIO Data Sets”), to access and use data analysis modules created by TAG.BIO (“TAG.BIO Protocols”), to run TAG.BIO Protocols and store analyses of TAG.BIO Data Sets (“TAG.BIO Analyses”), and to compile TAG.BIO Analyses into reports (“TAG.BIO Reports”). Users may have the option to create reports that incorporate User Analyses and TAG.BIO Analyses (“Compiled Reports”). The Service also allows users to share User Data Sets, TAG.BIO Data Sets, User Protocols, TAG.BIO Protocols, User Analyses, TAG.BIO Analyses, User Reports, TAG.BIO Reports, and Compiled Reports with other users of the Service.
Eligibility. You must be at least 13 years of age to use the Service. By agreeing to this EULA, you represent and warrant to us that: (a) you are at least 13 years of age; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to this EULA and you agree to be bound by this EULA on behalf of that organization.
Accounts and Registration. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your email address or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at email@example.com.
Limited License. Subject to your complete and ongoing compliance with all the terms and conditions set forth in this EULA (including without limitation payment of any applicable fees and compliance with all license restrictions), TAG.BIO grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use one copy of the App downloaded directly from TAG.BIO or from a legitimate marketplace (such as Apple’s iTunes store or the Google Play store) and to use the Service, solely in object code format, for your personal use for lawful purposes, on a single compatible mobile device or computer that you own or control, and for the purpose of accessing and using the Service in accordance with the EULA. You may not reproduce, distribute, publicly display, or publicly perform the App or any part of the Service. Except if, and solely to the extent that, such a restriction is impermissible under applicable law or applicable third party license, you may not (a) decompile, reverse engineer, or otherwise access or attempt to access the source code for the App or the Service, or make or attempt to make any modification to the App or the Service; or (b) interfere with or circumvent any feature of the App or the Service, including without limitation any security, or access control mechanism. You may not use the App or the Service for any purpose other than a purpose for which the App and the Service are expressly designed. The term App, as used herein, includes any update or modification to the App made available to you by TAG.BIO (unless provided with separate terms). If you are prohibited under applicable law from using the App or the Service, you may not use them.
Payment. Currently, the Service is provided free of charge. In the future, access to the Service, or to certain features of the Service, may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. dollars and are non-refundable. If BIO changes the fees for the Service, including by adding additional fees or charges, TAG.BIO will provide you advance notice of those changes. If you do not accept the changes, TAG.BIO may discontinue providing the Service to you. TAG.BIO will charge the payment method you specify at the time of purchase. You authorize TAG.BIO to charge all sums as described in this EULA, for the Service you select, to that payment method. If you pay any fees with a credit card, TAG.BIO may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
Use of the App and the Service – Third Party Terms and Fees. You are solely responsible for your use of the Service on your mobile device, including without limitation compliance with these and any applicable third party terms, and payment of any applicable third party fees. Without limiting the foregoing, you are solely responsible for the payment of all applicable fees associated with any Carrier service plan you use in connection with your use of the Service (such as voice, data, SMS, MMS, roaming, other applicable fees charged by the Carrier). Accordingly, you should use care in selecting a service plan offered by your Carrier. If your device is lost or stolen, you must notify TAG.BIO immediately to suspend services.
User Content Generally. Certain features of the Service may permit users to upload content to the Service, including User Data Sets, messages, reviews, photos, video, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on the Service. User Content also includes User Protocols, User Analyses, and User Reports. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Service.
Limited License Grant to TAG.BIO. By posting or publishing User Content on a public account, you grant TAG.BIO a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, fully paid-up right and license (with the right to sublicense) to host, store, transfer, transmit, display, perform, reproduce, modify, prepare derivative works of, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed. By posting or publishing User Content on a private account, you grant TAG.BIO a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, fully paid-up right and license to host, store, transfer, transmit, display, perform, reproduce and modify, prepare derivative works of, and distribute your User Content, in whole or in part, solely for purposes of providing or improving the Service.
Limited License Grant to Other Users. By posting or sharing User Content with other users of the Service, or by posting User Content on a public account, you grant those users a non-exclusive license to access and use that User Content as permitted by this EULA and in accordance with your account preferences.
Limited License Grant to Users. BIO grants you a worldwide, non-exclusive, royalty-free, fully paid-up right and license to host, store, transfer, transmit, display, perform, reproduce, modify and distribute TAG.BIO Data Sets, TAG.BIO Protocols, TAG.BIO Analyses, and TAG.BIO Reports.
User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:
you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize TAG.BIO and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by TAG.BIO, the Service, and this EULA; and
your User Content, and the use of your User Content as contemplated by this EULA, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause TAG.BIO to violate any law or regulation.
User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. TAG.BIO may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates this EULA or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against TAG.BIO with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to this EULA, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, TAG.BIO does not permit copyright-infringing activities on the Service.
Digital Millennium Copyright Act
DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
ATTN: Legal Department (Copyright Notification)
1 Quartz Way, San Francisco, CA 94131
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
a description of the copyright-protected work or other intellectual property right that you claim has been infringed;
a description of the material that you claim is infringing and where it is located on the Service;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the use of those materials on the Service is not authorized by the copyright owner, its agent, or the law; and
a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Repeat Infringers. TAG.BIO will promptly terminate without notice the accounts of users that are determined by TAG.BIO to be “Repeat Infringers.” A Repeat Infringer is a user who has been notified of infringing activity or has had User Content removed from the Service at least twice.
Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
use the Service for any illegal purpose or in violation of any local, state, national, or international law;
violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) attempting to collect personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any such network, equipment, or server;
perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
bypass any security or other features of the Service designed to control the manner in which the Service is used, harvest or mine content from the Service, or otherwise access or use the Service in a manner inconsistent with individual human usage;
use any robot, spambot, spider, crawler, scraper or other automated means or interface not provided by us to access the Service or to extract data;
decipher, reverse engineer, decompile or disassemble the Service or the App, or the software used to provide the Service or the App, in whole or in part, or authorize, direct, or cause a third party to do so;
use, display, mirror, frame or utilize framing techniques to enclose the Service or the content, or any portion thereof, unless and solely to the extent TAG.BIO makes available the means for embedding any part of the Service or the content;
access, tamper with, or use non-public areas of the Service, TAG.BIO’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of TAG.BIO’s providers;
use the Service in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party;
sell or otherwise transfer the access granted under this EULA or any Materials (as defined in Section 15) or any right or ability to view, access, or use any Material; or
attempt to do any of the acts described in this Section 9, or assist or permit any person in engaging in any of the acts described in this Section 9.
Termination of Use; Discontinuation and Modification of the Service. You may terminate your account at any time by contacting customer service at firstname.lastname@example.org. If you terminate your account, you remain obligated to pay all outstanding fees, if any, incurred prior to termination relating to your use of the Service. If you violate any provision of this EULA, your permission from us to use the Service will terminate automatically. In addition, TAG.BIO may in its sole discretion terminate your user account on the Service or suspend or terminate your access to the Service at any time for any reason or no reason, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.
Additional Fees. You agree that your use of the App may incur third party fees, such as fees charged by your Carrier for data usage, and may be subject to third party terms, such as your Carrier’s terms of service, and you agree to pay all such fees and abide by all such terms;
Third-Party Services and Linked Websites. TAG.BIO may provide tools through the Service that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on TAG.BIO with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.
Location-Based Services. Some of the features of the Service may enable TAG.BIO to access your location in order to tailor your experience with the Service based on your location (“Location-based Services”). In order to use certain Location-based Services, you must enable certain features of your mobile phone, such as GPS, Wi-Fi, and Bluetooth, which enable TAG.BIO to identify your location through a variety of means, including GPS location, IP address, cell tower location, geo-fencing technology, or detection by physical on-location Wi-Fi or Bluetooth sensors, as available. To the extent your location is collected through Wi-Fi or Bluetooth sensors, such sensors, and the associated data services, may be provided by a third party, and you agree and acknowledge that such third party may access such information for the purpose of providing such data services to TAG.BIO. You will be given the option to automatically enable the provision of some Location-based Services through the App, and to enable or disable such Location-based Services at any time through the App’s Settings menu. If you choose to disable any Location-based Services on your device and/or opt out of any Location-based Services through the App’s Settings menu, you will not be able to utilize certain features of the Service. By enabling Location-based Services on your device, you agree and acknowledge that (i) device data we collect from you is directly relevant to your use of the Service, (ii) TAG.BIO may provide Location-based Services related to and based on your then-current location, and (iii) TAG.BIO may use any such information collected in connection with the provision of Location-based Services in connection with its provision of the Service. PLEASE NOTE THAT LOCATION DATA MAY NOT ALWAYS BE ACCURATE, AND TAG.BIO DISCLAIMS ANY AND ALL WARRANTIES RELATED TO LOCATION-BASED SERVICES.
IP Ownership, Reservation of Rights. The Service, including the App, is owned and operated by TAG.BIO. The App, content, TAG.BIO Data Sets, TAG.BIO Protocols, TAG.BIO Analyses, TAG.BIO Reports, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, services, and all other elements of the Service (the “Materials”), are protected by copyright, trade dress, patent, and trademark laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. As between you and TAG.BIO, all Materials, including intellectual property rights therein and thereto, are the sole and exclusive property of TAG.BIO or its subsidiaries or affiliated companies and/or its third-party licensors. You may not sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or make any use of the Materials except as expressly authorized hereunder. TAG.BIO reserves all rights not expressly granted in this EULA. You shall not acquire any right, title or interest to the Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in this EULA.
Third Party Software. The software you download consists of a package of components, including certain third party software (“Third Party Software”) provided under separate license terms (the “Third Party Terms”), as described in more detail [through the App’s help menu / online at http://old.tag.bio/third_party_terms]. Your use of the Third Party Software in conjunction with the App in a manner consistent with this EULA is permitted, however, you may have broader rights under the applicable Third Party Terms and nothing in this EULA is intended to impose further restrictions on your use of the Third Party Software.
Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”), such as end-user license agreements for any downloadable software applications, or rules that are applicable to a particular feature or content on the Service, subject to Section 18. All Additional Terms are incorporated by this reference into, and made a part of, this EULA.
Modification of this EULA. We reserve the right, at our discretion, to change this EULA on a going-forward basis at any time. Please check this EULA periodically for changes. If a change to this EULA materially modifies your rights or obligations, you will be required to accept the modified EULA in order to continue to use the Service. The EULA will be identified as of the most recent date of revision and will be effective immediately upon being made available through the Service, except as follows: a) in the event any such modification materially alters your rights hereunder, we will attempt to notify you directly through a message sent to the email address you have provided to TAG.BIO, if any, or through a pop-up window or other notification when you access or use the App or the Service, b) such materially modified EULA will be effective upon the earlier of your use of the Service with actual knowledge of the changes or thirty days after the changes are made available to you, and c) no modifications to this EULA will apply to any dispute between you and TAG.BIO that arose prior to the date of such modification. Your use of the Service after modifications to the EULA become effective constitutes your binding acceptance of such changes. If you are dissatisfied with the terms of the EULA or any modifications thereof, then you agree that your sole and exclusive remedy is to discontinue any use of the Service.
Feedback. If you provide TAG.BIO with any comments, bug reports, feedback, or modifications proposed or suggested by you for the Service (“Feedback”), such Feedback is provided on a non-confidential basis (notwithstanding any notice to the contrary you may include in any accompanying communication), and TAG.BIO shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the Service. You hereby grant TAG.BIO a perpetual, irrevocable, nonexclusive license under all rights necessary to so incorporate and use your Feedback for any purpose.
Indemnity. You are responsible for your use of the Service, and you will defend and indemnify TAG.BIO and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “BIO Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of this EULA, any representation, warranty, or agreement referenced in this EULA, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
Disclaimers; No Warranties
THE APP AND SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, THE TAG.BIO ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE TAG.BIO ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. TAG.BIO EXPRESSLY DISCLAIMS ANY WARRANTIES OF ANY KIND WITH RESPECT TO THE ACCURACY OR FUNCTIONALITY OF LOCATION-BASED SERVICES, AND WITH RESPECT TO THE ACCURACY, VALIDITY, OR COMPLETENESS OF ANY INFORMATION OR FEATURES AVAILABLE THROUGH THE SERVICE, OR THE QUALITY OR CONSISTENCY OF THE SERVICE. TAG.BIO FURTHER DISCLAIMS ANY WARRANTY OR LIABILITY RELATED TO YOUR CARRIER’S NETWORK OR SERVICE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE TAG.BIO ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THIS EULA. THE TAG.BIO ENTITIES DO NOT WARRANT THE ACCURACY OR QUALITY OF THE TAG.BIO DATA SETS, USER DATA SETS, TAG.BIO PROTOCOLS, USER PROTOCOLS, TAG.BIO ANALYSES, USER ANALYSES, TAG.BIO REPORTS, USER REPORTS OR COMPILED REPORTS AND DISCLAIM ALL WARRANTIES AND LIABILITY ARISING OUT OF ANY ACTIONS OR INACTION YOU UNDERTAKE AS A CONSEQUENCE OF USING THE SERVICE. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
Limitation of Liability
IN NO EVENT WILL THE TAG.BIO ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY TAG.BIO ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 26.4(iii), THE AGGREGATE LIABILITY OF THE TAG.BIO ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THIS EULA, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO TAG.BIO FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCES GIVING RISE TO CLAIM; OR (B) $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THIS EULA THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS EULA. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS EULA. THE LIMITATIONS IN THIS SECTION 22 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
THIRD PARTY DISPUTES. TAG.BIO IS NOT AFFILIATED WITH ANY CARRIER, SERVICE PROVIDER OR ADVERTISER, AND ANY DISPUTE YOU HAVE WITH ANY CARRIER, SERVICE PROVIDER, ADVERTISER, OR OTHER THIRD PARTY, INCLUDING WITHOUT LIMITATION ANY OTHER USER OF THE TAG.BIO SERVICE, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE TAG.BIO (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES AND EMPLOYEES) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
Governing Law. This EULA are governed by the laws of the State of California without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under this EULA, then you and TAG.BIO agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California for the purpose of litigating any dispute. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
Dispute Resolution and Arbitration
Generally. In the interest of resolving disputes between you and TAG.BIO in the most expedient and cost effective manner, you and TAG.BIO agree that every dispute arising in connection with this EULA will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this EULA, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this EULA. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS EULA, YOU AND TAG.BIO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Exceptions. Despite the provisions of Section 1, nothing in this EULA will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Arbitrator. Any arbitration between you and TAG.BIO will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this EULA, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting TAG.BIO.
Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). TAG.BIO’s address for Notice is: TAG.BIO, INC., 1 Quartz Way, San Francisco, CA 93131. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or TAG.BIO may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or TAG.BIO must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, TAG.BIO will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by TAG.BIO in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
Fees. If you commence arbitration in accordance with this EULA, TAG.BIO will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Francisco County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse TAG.BIO for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
No Class Actions. YOU AND TAG.BIO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and TAG.BIO agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Modifications to this Arbitration Provision. If TAG.BIO makes any future change to this arbitration provision, other than a change to TAG.BIO’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to TAG.BIO’s address for Notice, in which case your account with TAG.BIO will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
Enforceability. If Section 8 is found to be unenforceable or if the entirety of this Section 26 is found to be unenforceable, then the entirety of this Section 26 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 24 will govern any action arising out of or related to this EULA.
Contact Information. The App and the Service is offered by TAG.BIO, INC., located at 1 Quartz Way, San Francisco, CA 94131. You may contact us by sending correspondence to that address or by emailing us at email@example.com.
Notice Regarding Apple. If you are using our mobile applications on an iOS device, the terms of this Section 29 You acknowledge that this EULA is between you and TAG.BIO only, not with Apple, and Apple is not responsible for the Service or its content. Apple has no obligation to furnish any maintenance or support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claim by you or any third party relating to the Service or your possession or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement or discharge of any third party claim that the Service or your possession and use of the mobile application infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.