SECTION 12 OF THIS AGREEMENT IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 12 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.
BY ACCESSING OR USING ELION.HEALTH, INCLUDING ITS SUBDOMAINS, OR ANY OTHER WEBSITE WITH AN AUTHORIZED LINK TO THE AGREEMENT (“WEBSITE”), REGISTERING AN ACCOUNT OR ACCESSING OR USING ANY DATA, INFORMATION, SERVICES, FEATURES OR RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE (COLLECTIVELY, THE “SERVICES”), OR CLICKING ON A BUTTON OR TAKING ANOTHER ACTION TO SIGNIFY YOUR ACCEPTANCE OF THE AGREEMENT, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE AGREEMENT, (2) YOU ARE AT LEAST 18 YEARS OF AGE (AND IF YOU ARE UNDER 18, YOU ARE USING THE SERVICES UNDER THE SUPERVISION OF YOUR PARENT OR GUARDIAN, WHO AGREES TO THIS AGREEMENT ON BEHALF OF HIMSELF OR HERSELF AND ON BEHALF OF YOU, THE USER, AND WHO HAS THE RIGHT AND AUTHORITY TO ENTER INTO THESE TERMS ON BEHALF OF HIMSELF OR HERSELF AND YOU, THE USER), AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF YOU AS THE NAMED USER, AND TO BIND ELION TO THE AGREEMENT. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THE AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES.
1.1 Generally. The Services allows you to: (i) search for and share information about technology products, services, and vendors; (ii) communicate with other Users; and/or (iii) create new content such as recommendations and reviews. You also can connect with technology service providers and request demos of their products and services.
1.2 Use of the Services. Except with respect to User Content (defined in Section 3.1), Elion and its suppliers own all rights, title and interest in the Services. The Services are protected by copyright and other intellectual property laws throughout the world. Subject to this Agreement, Elion grants you a limited license to use the Services solely for your internal business purposes. Any future release, update or other addition to the Services shall be subject to this Agreement. Elion, its suppliers and service providers reserve all rights not granted in this Agreement.
1.3 Open Source Software. Some of the software in the Services may be licensed by third-parties under various “open-source” or “public-source” software licenses (such as the GNU General Public License, the GNU Lesser General Public License, the Apache License, the Berkeley Software Distribution License, and the MIT License) (collectively, the “Open Source Software”). Notwithstanding anything to the contrary in this Agreement, the Open Source Software is not licensed under Section 1.2 and instead is separately licensed pursuant to the terms and conditions of their respective open-source software licenses. You agree to comply with the terms and conditions of such open-source software license agreements.
1.4 Updates. You understand that the Services are evolving. As a result, Elion may require you to accept updates to the Services that you have installed on your computer or mobile device. You acknowledge and agree that Elion may update the Services with or without notifying you. You may need to update third-party software from time to time in order to use the Services.
When registering an account for the Services as a User (an “Account”), you agree to provide only true, accurate, current and complete information requested by the registration form (the “Registration Data”) and to promptly update the Registration Data thereafter as necessary. You represent that you are not barred from using the Services under any applicable law and that you will be responsible for all activities that occur under your Account. You agree to monitor your Account to restrict its use by minors and other unauthorized users and agree not to share your Account or password with anyone. You further agree to notify Elion immediately of any unauthorized use of your password or any other breach of the security of your Account and to exit from your Account at the end of each session. You agree not to create an Account using a false identity or alias or if you previously have been banned from using any of the Services. You further agree that you will not maintain more than one Account for the Services at any given time. Elion reserves the right to remove or reclaim any usernames at any time and for any reason. You acknowledge and agree that you have no ownership or other property interest in your Account and that all rights in and to your Account are owned by and inure to the benefit of Elion.
3.1 Responsible Party for Content. You acknowledge that all content is the sole responsibility of the party from whom such content originated. This means that each User is entirely responsible for all content that a User makes available through the Services (“User Content”). Elion has no obligation to pre-screen any content. You use all User Content and interact with other Users at your own risk. Without limiting the foregoing, Elion reserves the right in its sole discretion to pre-screen, refuse, or remove any content. Elion shall have the right to remove any content that violates this Agreement or is otherwise objectionable to Elion.
3.2 Ownership of Your Content. Elion does not claim ownership of any User Content you make available on or through the Services (“Your Content”). However, when you as a User post or publish Your Content on or in the Services, you represent that you have all of the necessary rights to grant Elion the license set forth below in Section 3.3. Except with respect to Your Content, you agree that you have no right or title in or to any content that appears on or in the Services.
3.4 Moral Rights Waiver of Your Content. If it is determined that you retain moral rights (including rights of attribution or integrity) in Your Content, you hereby declare that (a) you do not require that any personally identifying information be used in connection with Your Content, or any derivative works of or upgrades or updates thereto; (b) you have no objection to the publication, use, modification, deletion, and exploitation of Your Content by Elion or its licensees, successors, and assigns; (c) you forever waive and agree not to claim or assert any entitlement to any and all moral rights of an author in any transmissions of Your Content; and (d) you forever release Elion, and its licensees, successors, and assigns, from any claims that you could otherwise assert against Elion by virtue of any such moral rights.
3.5 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Elion through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Elion has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Elion a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Elion’s business.
3.6 Restrictions on User Conduct. You agree not to use the Services for any purpose prohibited by the Agreement or by applicable law. You shall not (and shall not permit any third-party to) (a) take any action or (b) make available any content on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Elion’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of Elion; or (iv) unsolicited promotions, political campaigning, advertising, contests, raffles, or solicitations; private information of any third-party, including, without limitation, surname (family name), addresses, phone numbers, email addresses, Social Security numbers, financial information, and credit card numbers.
The content and information on the Services (including, but not limited to, messages, data, information, text, photos, graphics, video, icons, software, code, or other material), as well as the infrastructure used to provide such content and information, is proprietary to us, except as expressly provided in the Agreement. You agree not to otherwise modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell or re-sell any such content or information obtained from or through the Services. Additionally, you agree not to: (a) use the Services or its contents for any commercial purpose without our express written permission; (b) access, monitor, or copy any content or information via the Services using any robot, spider, scraper, or other automated means or any manual process for any purpose without our express written permission; (c) violate the restrictions in any robot exclusion headers on this Website or bypass or circumvent other measures employed to prevent or limit access to the Services; (d) take any action that imposes, or may impose, in our discretion, an unreasonable or disproportionately large load on our infrastructure; (e) deep-link to any portion of the Services for any purpose without our express written permission; (f) “frame”, “mirror”, or otherwise incorporate any part of the Services into any other website or mobile application without our prior written authorization; (g) attempt to modify, translate, adapt, edit, decompile, disassemble, or reverse engineer any software programs used by Elion in connection with the Services or the content we provide; (h) post reviews on products or services offered by your current employer or by direct competitors of your current employer; or (i) log in using an alias that masks your true identity, or attempt to gain unauthorized access to the Services.
THE INFORMATION, CONTENT, SOFTWARE, PRODUCTS, AND/OR SERVICES PUBLISHED ON OR THROUGH THE SERVICES MAY INCLUDE INACCURACIES OR ERRORS. ELION DOES NOT GUARANTEE THE ACCURACY OF, AND DISCLAIMS, ALL LIABILITY FOR ANY ERRORS OR OTHER INACCURACIES RELATING TO, THE INFORMATION AND DESCRIPTION OF THE TECHNOLOGY PRODUCTS AND RELATED SERVICES DISPLAYED VIA THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE PRICING, SCREENSHOTS, VIDEOS, LIST OF PRODUCT AND SERVICE FEATURES, A THIRD-PARTY’S COMPANY INFORMATION, GENERAL PRODUCT OR SERVICES DESCRIPTIONS, ETC.). ELION MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE INFORMATION, CONTENT, SUBMISSIONS, SOFTWARE, PRODUCTS, AND/OR SERVICES CONTAINED OR DESCRIBED ON OR IN THE SERVICES FOR ANY PURPOSE, AND THE INCLUSION OR OFFERING OF ANY PRODUCTS OR SERVICES ON OR THROUGH THIS WEBSITE DOES NOT CONSTITUTE ANY ENDORSEMENT OR RECOMMENDATION OF SUCH PRODUCTS OR SERVICES BY ELION. ALL SUCH INFORMATION, CONTENT, SUBMISSIONS, SOFTWARE, PRODUCTS, AND/OR SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND BY ELION. ELION DISCLAIMS ALL WARRANTIES AND CONDITIONS THAT THE SERVICES, ITS SERVERS, OR ANY EMAIL SENT FROM ELION, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ELION HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE INFORMATION, CONTENT, SOFTWARE, PRODUCTS, AND/OR SERVICES CONTAINED OR DESCRIBED VIA THE SERVICES, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT.
You agree to defend, indemnify and hold harmless Elion and its affiliates and licensees and any of its or their officers, directors, employees, and agents (“Elion Indemnitees”) from and against any claims, causes of action, demands, recoveries, losses, damages, fines, penalties, liabilities, or other costs or expenses of any kind or nature including but not limited to reasonable legal and accounting fees, brought by third-parties as a result of: (a) your breach of the Agreement; (b) your violation of any law or the rights of a third-party; or (c) your use of the Services.
8.1 Disclaimer of Certain Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ELION INDEMNITEES BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUE OR FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF DATA, PRODUCTION, OR USE, BUSINESS INTERRUPTION OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT ELION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 Disclaimer of Third-Party Conduct. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THE ELION INDEMNITEES ARE NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD-PARTIES ON THE SERVICES, INCLUDING WITHOUT ANY LIMITATION, ANY USERS OF THE SERVICES.
8.3 Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT THE ELION INDEMNITEES ARE LIABLE TO YOU EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO ELION BY YOU DURING THE SIX-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
8.4 User Content and Settings. THE ELION INDEMNITEES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
8.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ELION AND YOU.
8.6 Exclusions. THE LAWS OF SOME STATES DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU AND YOU MIGHT HAVE OTHER RIGHTS.
The Services may contain hyperlinks to websites or platforms operated by parties other than Elion. Such hyperlinks are provided for your reference only. We do not control such websites or platforms and are not responsible for their content or the privacy or other practices of such websites or platforms. Further, it is up to you to take precautions to ensure that whatever links you select or software you download (whether from the Services or other websites or platforms) is free of such items as viruses, worms, trojan horses, defects, and other items of a destructive nature. Our inclusion of hyperlinks to such websites or platforms does not imply any endorsement of the material on such websites or platforms or any association with their operators. In some cases, you may be asked by a third-party site, platform, or mobile application (such as LinkedIn, Facebook, or Twitter) to link your profile on the Services to a profile on that third-party site, platform or mobile application. Choosing to do so is purely optional, and the decision to allow this information to be linked can be disabled (with the third-party site, platform, or mobile application) at any time.
Elion logo and other related graphics, logos, trademarks, service marks and trade names used on or in connection with the Services are the trademarks of Elion and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners. In addition, the look and feel of the Website, including all page headers, custom graphics, button icons, and scripts, is the service mark, trademark, and/or trade dress of Elion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Elion. All other trademarks, registered trademarks, product names, and company names or logos mentioned in or on the Services are the property of their respective owners. Reference to any products, services, processes, or other information, by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by Elion. Other logos and product and company names mentioned herein may be the trademarks of their respective owners. If you are aware of an infringement of either your brand or our brand, please let us know by emailing us at email@example.com.
11.1 Termination. The Agreement shall remain in full force and effect until your Account is terminated as provided herein. You may delete your Account at any time, for any reason by accessing your profile via the Website and selecting the button to delete your Account. Elion may terminate your Account if (a) you are in breach of the Agreement; (b) if Elion decides in its sole discretion to stop providing the applicable Services; or (c) for any or no reason, without giving you notice. You understand that any termination of this Agreement and your Account may involve deletion of your Account information from our live databases and all the information stored for such Account. Elion will not have any liability whatsoever to you for any termination of your Account or related deletion of your information.
11.2 Effect of Termination. Termination of any part of the Services includes removal of access to such Services and barring of further use of the Services. Termination of all Services also includes deletion of your password and all related information, files and User Content associated with or inside your Account (or any part thereof). Upon termination of any Service, your right to use such Services will automatically terminate immediately. You understand that any termination of Services may involve deletion of data associated therewith from our live databases. Elion will not have any liability whatsoever to you for any suspension or termination, including for deletion of User Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires that you and Elion arbitrate disputes against one another.Dispute Resolution:
PLEASE BE AWARE THAT THIS SECTION 12 CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND ELION HAVE AGAINST EACH OTHER WILL BE RESOLVED. AMONG OTHER THINGS, THIS SECTION 12 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND ELION BE RESOLVED BY BINDING AND FINAL ARBITRATION. THIS SECTION 12 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ THIS SECTION 12 CAREFULLY.
12.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Elion agree that any dispute, claim, or disagreement arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products or services sold or distributed through the Services, or the Agreement, including claims and disputes that arose between us before the effective date of the Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (a) you and Elion may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (b) you or Elion may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of the Agreement.
12.2 Informal Dispute Resolution. There may be instances when a Dispute arises between you and Elion. If that occurs, Elion is committed to working with you to reach a reasonable resolution. You and Elion agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Elion therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you also agree to participate in the conference.
(a) The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties in writing. Notice to Elion that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to firstname.lastname@example.org or by mail to Elion Inc. 228 Park Ave S PMB 33088, New York NY 10003-1502. The Notice must include: (a) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (b) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (c) a description of your Dispute.
(b) The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
12.3 Waiver of Jury Trial. YOU AND ELION HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Elion are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
12.4 Waiver of Class and Other Non-Individualized Relief. YOU AND ELION AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 12.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the Section 12.9 (Batch Arbitration) entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Elion agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in New York, New York. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Elion from participating in a class-wide settlement of claims.
12.5 Rules and Forum. The Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within sixty (60) days after receipt of Notice, you and Elion agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any JAMS fees and costs will be solely as set forth in the applicable JAMS rules.
(a) A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (a) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (b) a statement of the legal claims being asserted and the factual bases of those claims; (c) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (d) a statement certifying completion of the Informal Dispute Resolution process as described above; and (e) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
(b) If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (a) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (b) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (c) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
(c) Unless you and otherwise agree, or the Batch Arbitration process discussed in Section 12.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the applicable JAMS rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration.
(d) You and Elion agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
12.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of New York and will be selected by the parties from the JAMS roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then JAMS will appoint the arbitrator in accordance with the applicable JAMS rules, provided that if the Batch Arbitration process under Section 12.9 (Batch Arbitration) is triggered, JAMS will appoint the arbitrator for each batch.
12.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (a) all Disputes arising out of or relating to the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (b) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (c) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (d) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
12.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Elion need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
12.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Elion agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Elion by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), JAMS shall (a) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (b) appoint one arbitrator for each batch; and (c) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
(a) All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise JAMS, and JAMS shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Elion.
(b) You and Elion agree to cooperate in good faith with JAMS to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (a) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (b) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
12.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: email@example.com or Elion Inc. 228 Park Ave S PMB 33088, New York NY 10003-1502, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Elion account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
12.11 Invalidity, Expiration. Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Elion as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
12.12 Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if Elion makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change becoming effective by writing to Elion at: firstname.lastname@example.org or Elion Inc. 228 Park Ave S PMB 33088, New York NY 10003-1502, your continued use of the Services, including the acceptance of products and services offered on or through the Services, following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of the Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services or the Agreement, the provisions of this Arbitration Agreement as of the date you first accepted the Agreement (or accepted any subsequent changes to the Agreement) remain in full force and effect. Elion will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of the Agreement.
13.1 Electronic Communications. The communications between you and Elion may take place via electronic means, whether you visit the Website or send Elion e-mails, or whether Elion posts notices via the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Elion in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Elion provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
13.2 Release. YOU HEREBY RELEASE THE ELION PARTIES FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, ACTIONS, AND CAUSES OF ACTION, WHATSOEVER, ARISING OUT OF OR RELATED TO ANY LOSS, PROPERTY DAMAGE, PHYSICAL INJURY, CONTAGIOUS DISEASE OR DEATH THAT MAY BE SUSTAINED BY YOU WHICH MAY BE SUSTAINED BY YOU WHILE USING OR IN CONNECTION WITH THE USE OF THE SERVICES. THIS RELEASE WILL BE BINDING UPON YOUR RELATIVES, SPOUSE, HEIRS, NEXT OF KIN, EXECUTORS, ADMINISTRATORS, AND ANY OTHER INTEREST PARTIES. You waive and relinquish any and all rights and benefits otherwise conferred by any statutory or non-statutory law of any jurisdiction that would purport to limit the scope of a release or waiver, including any all rights and benefits which you have or may have under California Civil Code Section 1542 or any similar provision of the statutory or non-statutory law of any other jurisdiction (including without limitation Missouri, Delaware and Pennsylvania) to the full extent that you may lawfully waive all such rights and benefits. You acknowledge that the releases in this Agreement are intended to be as broad and inclusive as permitted by law, and as a complete and continuous release and waiver of liability for any and all use of the Services.
13.3 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Elion’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
13.4 Force Majeure. Elion shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
13.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at email@example.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
13.6 Exclusive Venue. To the extent the parties are permitted under the Agreement to initiate litigation in a court, both you and Elion agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in New York, New York.
13.7 Governing Law. THE AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE TERMS.
13.8 Notice. Where Elion requires that you provide an e-mail address, you are responsible for providing Elion with your most current e-mail address. In the event that the last e-mail address you provided to Elion is not valid, or for any reason is not capable of delivering to you any notices required or permitted by the Agreement, Elion’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Elion’s at the following email address: firstname.lastname@example.org or address: Elion Inc. 228 Park Ave S PMB 33088, New York NY 10003-1502. Such notice shall be deemed given when received by Elion by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
13.9 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
13.10 Severability. If any portion of the Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
13.11 Export Control. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (i) into any United States embargoed countries, or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Elion are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer any Elion products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
13.12 International Users. The Services can be accessed from countries around the world and may contain references to Services that are not available in your country. These references do not imply that Elion intends to announce such Services in your country. The Services are controlled and offered by Elion from its facilities in the United States of America. Elion makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
13.13 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
13.14 Entire Terms. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
For answers to your questions or ways to contact us, email us at email@example.com. Or, you can write to us at: Elion Inc. 228 Park Ave S PMB 33088, New York NY 10003-1502.